Exhibit 4.4
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WARRANT AGREEMENT
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AMERICAN MOBILE SATELLITE CORPORATION
as Issuer
and
STATE STREET BANK AND TRUST COMPANY
as Warrant Agent
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March 31, 1998
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WARRANT AGREEMENT dated as of March 31, 1998 between American Mobile
Satellite Corporation, ("HOLDINGS"), and State Street Bank and Trust Company, as
Warrant Agent (the "WARRANT AGENT").
WHEREAS, Holdings proposes to issue common stock purchase warrants, as
hereinafter described (the "WARRANTS"), to purchase up to an aggregate of
1,258,759 shares of Common Stock, par value $.01 per share (the "COMMON STOCK"),
of Holdings (the Common Stock issuable on exercise of the Warrants being
referred to herein as the "WARRANT SHARES"), in connection with a private
placement of an aggregate of $335,000,000 principal amount of the 12 1/4% Senior
Notes due 2008 (the "NOTES") of AMSC Acquisition Company, Inc., a wholly-owned
subsidiary of Holdings (the "COMPANY") and 335,000 Warrants, each Warrant
entitling the holder thereof to purchase one Warrant Share. The Notes and
Warrants will be sold in Units, each Unit consisting of $1,000 in aggregate
principal amount of Notes and One Warrant.
WHEREAS, Holdings desires the Warrant Agent to act on behalf of
Holdings, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as defined below) and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Definitions.
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"144A GLOBAL WARRANT" means a Global Warrant in the form of Exhibit A1
hereto bearing the Global Warrant Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
number of the Warrants sold in reliance on Rule 144A.
"AFFILIATE" of any specified Person means (A) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person and (B) any director, officer or
employee of such specified person. For purposes of this definition "CONTROL"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH") as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Warrant, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"CEDEL" means Cedel Bank, SA.
"DEFINITIVE WARRANT" means a certificated Warrant registered in the
name of the Holder thereof and issued in accordance with Section 3.6 hereof, in
the form of Exhibit A1 hereto except that such Warrant shall not bear the Global
Warrant Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Warrant" attached thereto.
"DEPOSITARY" means, with respect to the Warrants issuable or issued in
whole or in part in global form, the Person specified in Section 3.3 hereof as
the Depositary with respect to the Warrants,
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and any and all successors thereto appointed as Depositary hereunder and having
become such pursuant to the applicable provision of this Indenture.
"DISINTERESTED DIRECTOR" means, in connection with any issuance of
securities that give rise to a determination of the Fair Market Value thereof,
each member of the Board of Directors of Holdings who is not an officer,
employee, director or other Affiliate of the party to whom Holdings is proposing
to issue the securities giving rise to such determination.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"GLOBAL WARRANTS" means, individually and collectively, each of the
Restricted Global Warrants, in the form of Exhibits A1 and A2 hereto issued in
accordance with Section 3.1 hereof.
"GLOBAL WARRANT LEGEND" means the legend set forth in Section
3.6(f)(ii), which is required to be placed on all Global Warrants issued under
this Warrant Agreement.
"IAI GLOBAL WARRANT" means the Global Warrant in the form of Exhibit
A1 hereto bearing the Global Warrant Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
number of the Warrants sold to Institutional Accredited Investors.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Warrant through a Participant.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
Holdings by two Officers of Holdings, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of Holdings that meets the requirements of Section
13.04 and 13.05 of the Indenture.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Warrant Agent, that meets the requirements of
Section 13.04 and 13.05 of the Indenture. The counsel may be an employee of or
counsel to Holdings, any Subsidiary of Holdings or the Warrant Agent.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
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"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
3.6(f)(i) to be placed on all Warrants issued under this Warrant Agreement
except where otherwise permitted by the provisions of this Warrant Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL WARRANT" means a Regulation S Temporary Global
Warrant or Regulation S Permanent Global Warrant, as appropriate.
"REGULATION S PERMANENT GLOBAL WARRANT" means a permanent Global
Warrant in the form of Exhibit A1 hereto bearing the Global Warrant Legend and
the Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the number of the Regulation S Temporary Global Warrants upon expiration of the
Restricted Period.
"REGULATION S TEMPORARY GLOBAL WARRANT" means a temporary Global
Warrant in the form of Exhibit A2 hereto bearing the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding number of
Warrants initially sold in reliance on Rule 903 of Regulation S.
"RESTRICTED DEFINITIVE WARRANT" means a Definitive Warrant bearing the
Private Placement Legend.
"RESTRICTED GLOBAL WARRANT" means a Global Warrant bearing the Private
Placement Legend.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
Section 2. Appointment of Warrant Agent.
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Holdings hereby appoints the Warrant Agent to act as agent for
Holdings in accordance with the instructions set forth hereinafter in this
Agreement, and the Warrant Agent hereby accepts such appointment.
Section 3. Warrants Certificates
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3.1. Form and Dating.
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(a) General.
The Warrants and the Warrant Agent's certificate of authentication
shall be substantially in the form of Exhibits A1 and A2 hereto (the "WARRANT
CERTIFICATES"). The Warrants may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Warrant shall be dated the
date of its authentication.
The terms and provisions contained in the Warrants shall constitute,
and are hereby expressly made, a part of this Warrant Agreement, Holdings and
the Warrant Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Warrant conflicts with the express provisions
of this Warrant Agreement, the provisions of this Warrant Agreement shall govern
and be controlling.
(b) Global Warrants.
Warrants issued in global form shall be substantially in the form of
Exhibits A1 or A2 attached hereto (including the Global Warrant Legend thereon
and the "Schedule of Exchanges of Interests in the Global Warrant" attached
thereto). Warrants issued in definitive form shall be substantially in the form
of Exhibit A1 attached hereto (but without the Global Warrant Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Warrant" attached
thereto). Each Global Warrant shall represent such of the outstanding Warrants
as shall be specified therein and each shall provide that it shall represent the
number of outstanding Warrants from time to time endorsed thereon and that the
number of outstanding Warrants represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Warrant to reflect the amount of any increase or
decrease in the number of outstanding Warrants represented thereby shall be made
by the Warrant Agent or the Warrant Custodian, at the direction of the Warrant
Agent, in accordance with instructions given by the Holder thereof as required
by Section 3.6 hereof.
(c) Temporary Global Warrants.
Warrants offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Warrant, which shall
be deposited on behalf of the purchasers of the Warrants represented thereby
with the Warrant Agent, at its New York office, as custodian for the Depositary,
and registered in the name of the Depositary or the nominee of the Depositary
for the accounts of designated agents holding on behalf of Euroclear or Cedel
Bank, duly executed by Holdings and authenticated by the Warrant Agent as
hereinafter provided. The Restricted Period shall be terminated upon the
receipt by the Warrant Agent of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-U.S. beneficial ownership of 100%
of the aggregate amount of the Regulation S Temporary Global Warrant (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Warrant or an IAI Global Warrant bearing a Private
Placement Legend, all as contemplated by Section 3.6(a)(ii) hereof), and (ii) an
Officers' Certificate from Holdings. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Warrant shall be exchanged for beneficial interests in Regulation S Permanent
Global Warrants pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Warrants, the Warrant Agent
shall cancel the Regulation S Temporary Global Warrant. The aggregate amount of
the Regulation S
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Temporary Global Warrants and the Regulation S Permanent Global Warrants may
from time to time be increased or decreased by adjustments made on the records
of the Warrant Agent and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Warrant and the Regulation S Permanent Global Warrants that are held by
Participants through Euroclear or Cedel Bank.
3.2. Execution and Authentication.
Two Officers shall sign the Warrants for Holdings by manual or
facsimile signature.
If an Officer whose signature is on a Warrant no longer holds that
office at the time a Warrant is authenticated, the Warrant shall nevertheless be
valid.
A Warrant shall not be valid until authenticated by the manual
signature of the Warrant Agent. The signature shall be conclusive evidence that
the Warrant has been authenticated under this Warrant Agreement.
The Warrant Agent shall, upon a written order of Holdings signed by
two Officers (a "WARRANT AUTHENTICATION ORDER"), authenticate Warrants for
original issue up to the number stated in the preamble hereto.
The Warrant Agent may appoint an authenticating agent acceptable to
Holdings to authenticate Warrants. An authenticating agent may authenticate
Warrants whenever the Warrant Agent may do so. Each reference in this Warrant
Agreement to authentication by the Warrant Agent includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holdings or an Affiliate of Holdings.
3.3. Warrant Registrar and Warrant Paying Agent.
Holdings shall maintain an office or agency where Warrants may be
presented for registration of transfer or for exchange ("WARRANT REGISTRAR") and
an office or agency where Warrants may be presented for payment ("WARRANT PAYING
AGENT"). The Warrant Registrar shall keep a register of the Warrants and of
their transfer and exchange. Holdings may appoint one or more co-Warrant
Registrars and one or more additional Warrant Paying Agents. The term "WARRANT
REGISTRAR" includes any co-Warrant Registrar and the term "WARRANT PAYING AGENT"
includes any additional Warrant Paying Agent. Holdings may change any Warrant
Paying Agent or Warrant Registrar without notice to any Holder. Holdings shall
notify the Warrant Agent in writing of the name and address of any Agent not a
party to this Warrant Agreement. If Holdings fails to appoint or maintain
another entity as Warrant Registrar or Warrant Paying Agent, the Warrant Agent
shall act as such. Holdings or any of its Subsidiaries may act as Warrant
Paying Agent or Warrant Registrar.
Holdings initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Warrants.
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Holdings initially appoints the Warrant Agent to act as the Warrant
Registrar and Warrant Paying Agent and to act as Warrant Custodian with respect
to the Global Warrants.
3.4. Holdings shall require each Warrant Paying Agent other than the
Warrant Agent to agree in writing that the Warrant Paying Agent will hold in
trust for the benefit of Holders or the Warrant Agent all money held by the
Warrant Paying Agent for the payment of Liquidated Damages, if any, on the
Warrants, and will notify the Warrant Agent of any default by Holdings in making
any such payment. While any such default continues, the Warrant Agent may
require a Warrant Paying Agent to pay all money held by it to the Warrant Agent.
Holdings at any time may require a Warrant Paying Agent to pay all money held by
it to the Warrant Agent. Upon payment over to the Warrant Agent, the Warrant
Paying Agent (if other than Holdings or a Subsidiary) shall have no further
liability for the money. If Holdings or a Subsidiary acts as Warrant Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Warrant Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to Holdings, the Warrant Agent shall
serve as Warrant Paying Agent for the Warrants.
3.5. Holder Lists.
The Warrant Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders. If the Warrant Agent is not the Warrant Registrar, Holdings shall
furnish to the Warrant Agent at least seven Business Days before each interest
payment date and at such other times as the Warrant Agent may request in
writing, a list in such form and as of such date as the Warrant Agent may
reasonably require of the names and addresses of the Holders of Warrants.
3.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Warrants.
A Global Warrant may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Warrants will be exchanged by Holdings for Definitive
Warrants if (i) Holdings delivers to the Warrant Agent notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by Holdings within 120 days
after the date of such notice from the Depositary or (ii) Holdings in its sole
discretion determines that the Global Warrants (in whole but not in part) should
be exchanged for Definitive Warrants and delivers a written notice to such
effect to the Warrant Agent; provided that in no event shall the Regulation S
Temporary Global Warrant be exchanged by Holdings for Definitive Warrants prior
to (x) the expiration of the Restricted Period and (y) the receipt by the
Warrant Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B)
under the Securities Act. Upon the occurrence of either of the preceding events
in (i) or (ii) above, Definitive Warrants shall be issued in such names as the
Depositary shall instruct the Warrant Agent. Global Warrants also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Warrant authenticated and delivered in exchange for, or in
lieu of, a Global Warrant or any portion thereof, pursuant to this Section 3.6
or Section 3.7 or 3.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Warrant. A Global Warrant may not be exchanged for
another Warrant other than as provided in this Section 3.6(a). However,
beneficial
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interests in a Global Warrant may be transferred and exchanged as provided in
Section 3.6(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Warrants.
The transfer and exchange of beneficial interests in the Global
Warrants shall be effected through the Depositary, in accordance with the
provisions of this Warrant Agreement and the Applicable Procedures. Beneficial
interests in the Restricted Global Warrants shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Warrants also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Warrant.
Beneficial interests in any Restricted Global Warrant may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Warrant in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Warrant may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Warrant
may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Warrant. No written
orders or instructions shall be required to be delivered to the
Warrant Registrar to effect the transfers described in this Section
3.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Warrants. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 3.6(b)(i) above,
the transferor of such beneficial interest must deliver to the Warrant
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Warrant in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Warrant in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Warrant Registrar
containing information regarding the Person in whose name such
Definitive Warrant shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Warrants be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Warrant
prior to (x) the expiration of the Restricted Period and (y) the
receipt by the Warrant Registrar of any certificates required pursuant
to Rule 903 under the Securities Act. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Warrants contained in this Warrant Agreement and the Warrants,
or otherwise applicable provisions under the Securities Act, the
Warrant Agent shall adjust the number of the relevant Global
Warrant(s) pursuant to Section 3.6(g) hereof.
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(iii) Transfer of Beneficial Interests to Another Restricted
Global Warrant. A beneficial interest in any Restricted Global
Warrant may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Warrant
if the transfer complies with the requirements of Section 3.6(b)(ii)
above and the Warrant Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Warrant, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Warrant
or the Regulation S Global Warrant, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Warrant, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Warrant for Beneficial Interests in the Unrestricted
Global Warrant. A beneficial interest in any Restricted Global
Warrant may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Warrant or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Warrant if the exchange or transfer complies with
the requirements of Section 3.6(b)(ii) above and:
(A) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Warrant Registration
Rights Agreement;
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Warrant, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Warrant, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Warrant Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer
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contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (A) or (B)
above at a time when an Unrestricted Global Warrant has not yet been issued,
Holdings shall issue and, upon receipt of a Warrant Authentication Order in
accordance with Section 3.2 hereof, the Warrant Agent shall authenticate one or
more Unrestricted Global Warrants in an number equal to the number of beneficial
interests transferred pursuant to subparagraph (A) or (B) above.
Beneficial interests in an Unrestricted Global Warrant cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Warrant.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Warrants.
(i) Beneficial Interests in Restricted Global Warrants to
Restricted Definitive Warrants. If any holder of a beneficial
interest in a Restricted Global Warrant proposes to exchange such
beneficial interest for a Restricted Definitive Warrant or to transfer
such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Warrant, then, upon receipt by the
Warrant Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such beneficial
interest for a Restricted Definitive Warrant, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
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(F) if such beneficial interest is being transferred to
Holdings or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Warrant Agent shall cause the amount of the applicable Global Warrant
to be reduced accordingly pursuant to Section 3.6(g) hereof, and Holdings
shall execute and the Warrant Agent shall authenticate and deliver to the
Person designated in the instructions a Definitive Warrant in the
appropriate amount. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.6(c) shall be registered in such name or names and in such authorized
amount or amounts as the holder of such beneficial interest shall instruct
the Warrant Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Warrant Agent shall deliver such
Definitive Warrants to the Persons in whose names such Warrants are so
registered. Any Definitive Warrant issued in exchange for a beneficial
interest in a Restricted Global Warrant pursuant to this Section 3.6(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
Notwithstanding Sections 3.6(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Warrant may not be exchanged
for a Definitive Warrant or transferred to a Person who takes delivery
thereof in the form of a Definitive Warrant prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Warrant Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Warrants to
Unrestricted Definitive Warrants. A holder of a beneficial interest
in a Restricted Global Warrant may exchange such beneficial interest
for an Unrestricted Definitive Warrant or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Warrant only if:
(A) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Warrant
Registration Rights Agreement;
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such
beneficial interest for a Definitive Warrant that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Warrant that
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does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Warrant Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Warrants to
Unrestricted Definitive Warrants. If any holder of a beneficial
interest in an Unrestricted Global Warrant proposes to exchange such
beneficial interest for a Definitive Warrant or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Warrant, then, upon satisfaction of the conditions set
forth in Section 3.6(b)(ii) hereof, the Warrant Agent shall order the
amount of the applicable Global Warrant to be reduced accordingly
pursuant to Section 3.6(g) hereof, and Holdings shall execute and,
upon receipt of a Warrant Authentication Order, the Warrant Agent
shall authenticate and deliver to the Person designated in the
instructions a Definitive Warrant in the appropriate amount. Any
Definitive Warrant issued in exchange for a beneficial interest
pursuant to this Section 3.6(c)(iii) shall be registered in such name
or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Warrant
Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Warrant Agent shall deliver such
Definitive Warrants to the Persons in whose names such Warrants are so
registered. Any Definitive Warrant issued in exchange for a
beneficial interest pursuant to this Section 3.6(c)(iii) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Warrants for Beneficial
Interests.
(i) Restricted Definitive Warrants to Beneficial Interests in
Restricted Global Warrants. If any Holder of a Restricted Definitive
Warrant proposes to exchange such Warrant for a beneficial interest in
a Restricted Global Warrant or to transfer such Restricted Definitive
Warrants to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Warrant, then, upon receipt
by the Warrant Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Warrant
proposes to exchange such Warrant for a beneficial interest in a
Restricted Global Warrant, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Warrant is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Warrant is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule
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904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such Restricted Definitive Warrant is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Warrant is being
transferred to an Institutional Accredited Investor in reliance on
an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Warrant is being
transferred to Holdings or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Warrant is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Warrant Agent shall cancel the Restricted Definitive Warrant,
increase or cause to be increased the number of, in the case of clause
(A) above, the appropriate Restricted Global Warrant, in the case of
clause (B) above, the 144A Global Warrant, in the case of clause (c)
above, the Regulation S Global Warrant, and in all other cases, the
IAI Global Warrant.
(ii) Restricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A Holder of a Restricted Definitive
Warrant may exchange such Warrant for a beneficial interest in an
Unrestricted Global Warrant or transfer such Restricted Definitive
Warrant to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Warrant only if:
(A) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Warrant
Registration Rights Agreement;
(B) the Warrant Registrar receives the following:
(1) if the Holder of such Definitive Warrants proposes
to exchange such Warrants for a beneficial interest in the
Unrestricted Global Warrant, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Warrants proposes
to transfer such Warrants to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Warrant, a
13
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Warrant Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 3.6(d)(ii), the Warrant Agent shall cancel the Definitive Warrants
and increase or cause to be increased the number of the Unrestricted Global
Warrant.
(iii) Unrestricted Definitive Warrants to Beneficial Interests
in Unrestricted Global Warrants. A Holder of an Unrestricted Definitive
Warrant may exchange such Warrant for a beneficial interest in an
Unrestricted Global Warrant or transfer such Definitive Warrants to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Warrant at any time. Upon receipt of a request for
such an exchange or transfer, the Warrant Agent shall cancel the applicable
Unrestricted Definitive Warrant and increase or cause to be increased the
number of one of the Unrestricted Global Warrants.
If any such exchange or transfer from a Definitive Warrant to a
beneficial interest is effected pursuant to subparagraphs (ii)(B) or (iii)
above at a time when an Unrestricted Global Warrant has not yet been
issued, Holdings shall issue and, upon receipt of a Warrant Authentication
Order in accordance with Section 3.2 hereof, the Warrant Agent shall
authenticate one or more Unrestricted Global Warrants in a number equal to
the number of Definitive Warrants so transferred.
(e) Transfer and Exchange of Definitive Warrants for Definitive
Warrants.
Upon request by a Holder of Definitive Warrants and such Holder's
compliance with the provisions of this Section 3.6(e), the Warrant Registrar
shall register the transfer or exchange of Definitive Warrants. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Warrant Registrar the Definitive Warrants duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Warrant Registrar duly executed by such Holder or by his attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 3.6(e).
(i) Restricted Definitive Warrants to Restricted Definitive
Warrants. Any Restricted Definitive Warrant may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Warrant if the Warrant Registrar
receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
14
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Warrants to Unrestricted Definitive
Warrants. Any Restricted Definitive Warrant may be exchanged by the
Holder thereof for an Unrestricted Definitive Warrant or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Warrant if:
(A) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(B) the Warrant Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Warrants proposes to exchange such Warrants for an
Unrestricted Definitive Warrant, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Warrants proposes to transfer such Warrants to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Warrant, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (B),
if the Warrant Registrar so requests, an Opinion of Counsel
in form reasonably acceptable to Holdings to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Warrants to Unrestricted
Definitive Warrants. A Holder of Unrestricted Definitive Warrants may
transfer such Warrants to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Warrant. Upon receipt of a request
to register such a transfer, the Warrant Registrar shall register the
Unrestricted Definitive Warrants pursuant to the instructions from the
Holder thereof.
(f) Legends.
The following legends shall appear on the face of all Global Warrants
and Definitive Warrants issued under this Warrant Agreement unless specifically
stated otherwise in the applicable provisions of this Warrant Agreement.
(i) Private Placement Legend.
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(A) Except as permitted by subparagraph (B) below, each
Global Warrant and each Definitive Warrant (and all Warrants issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
(A) OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO
HOLDINGS, (2) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (5) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
(AN "IAI") THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE WARRANT AGENT,
AND, IN THE CASE OF ANY TRANSFER TO ANY IAI OF SECURITIES ENTITLING THE
HOLDER TO PURCHASE 10,000 OR FEWER SHARES OF COMMON STOCK, AN OPINION OF
COUNSEL IF HOLDINGS SO REQUESTS OR (6) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (AND
BASED ON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), SUBJECT IN EACH OF
THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(B) Notwithstanding the foregoing, any Global Warrant or
Definitive Warrant issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
3.6 (and all Warrants issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Warrant Legend. Each Global Warrant shall bear a
legend in substantially the following form:
THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT
OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.7 OF THE WARRANT
AGREEMENT, (II) THIS
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GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 3.6(a) OF THE WARRANT AGREEMENT, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE WARRANT AGREEMENT FOR CANCELLATION PURSUANT TO SECTION
3.11 OF THE WARRANT AGENT AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF HOLDINGS.
(iii) Regulation S Temporary Global Warrant Legend. The
Regulation S Temporary Global Warrant shall bear a legend in
substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
WARRANT, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED WARRANTS, ARE AS SPECIFIED IN THE WARRANT AGREEMENT. NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
WARRANT SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
(g) Cancellation and/or Adjustment of Global Warrants.
At such time as all beneficial interests in a particular Global
Warrant have been exchanged for Definitive Warrants or a particular Global
Warrant has been redeemed, repurchased or canceled in whole and not in part,
each such Global Warrant shall be returned to or retained and canceled by the
Warrant Agent in accordance with Section 3.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Warrant is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Warrant or for Definitive Warrants, the
amount of Warrants represented by such Global Warrant shall be reduced
accordingly and an endorsement shall be made on such Global Warrant by the
Warrant Agent or by the Depositary at the direction of the Warrant Agent to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Warrant, such other Global Warrant shall
be increased accordingly and an endorsement shall be made on such Global Warrant
by the Warrant Agent or by the Depositary at the direction of the Warrant Agent
to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, Holdings
shall execute and the Warrant Agent shall authenticate Global Warrants
and Definitive Warrants upon Holdings' order or at the Warrant
Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Warrant or to a Holder of a Definitive Warrant
for any registration of transfer or exchange, but Holdings may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.10) hereof.
(iii) All Global Warrants and Definitive Warrants issued upon
any registration of transfer or exchange of Global Warrants or
Definitive Warrants shall be the duly authorized, executed and issued
warrants for Common Stock of Holdings, not
17
subject to any preemptive rights, and entitled to the same benefits
under this Warrant Agreement, as the Global Warrants or Definitive
Warrants surrendered upon such registration of transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer
of any Warrant, the Warrant Agent, any Agent and Holdings may deem and
treat the Person in whose name any Warrant is registered as the
absolute owner of such Warrant for the purpose of receiving payment of
principal of and interest on such Warrants and for all other purposes,
and none of the Warrant Agent, any Agent or Holdings shall be affected
by notice to the contrary.
(v) The Warrant Agent shall authenticate Global Warrants and
Definitive Warrants in accordance with the provisions of Section 3.2
hereof.
G. All certifications, certificates and Opinions of Counsel required
to be submitted to the Warrant Registrar pursuant to this Section 3.6 to effect
a registration of transfer or exchange may be submitted by facsimile.
3.8. Replacement Warrants.
If any mutilated Warrant is surrendered to the Warrant Agent or
Holdings and the Warrant Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant, Holdings shall issue and the Warrant
Agent, upon receipt of a Warrant Authentication Order, shall authenticate a
replacement Warrant if the Warrant Agent's requirements are met. If required by
the Warrant Agent or Holdings, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Warrant Agent and Holdings to protect
Holdings, the Warrant Agent, any Agent and any authenticating agent from any
loss that any of them may suffer if a Warrant is replaced. Holdings may charge
for its expenses in replacing a Warrant.
Every replacement Warrant is an additional warrant of Holdings and
shall be entitled to all of the benefits of this Warrant Agreement equally and
proportionately with all other Warrants duly issued hereunder.
3.9. Outstanding Warrants.
The Warrants outstanding at any time are all the Warrants
authenticated by the Warrant Agent except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Warrant effected by the Warrant Agent in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 3.9 hereof, a Warrant does not cease to be outstanding because Holdings
or an Affiliate of Holdings holds the Warrant.
If a Warrant is replaced pursuant to Section 3.7 hereof, it ceases to
be outstanding unless the Warrant Agent receives proof satisfactory to it that
the replaced Warrant is held by a bona fide purchaser.
3.10. Treasury Warrants.
In determining whether the Holders of the required amount of Warrants
have concurred in any direction, waiver or consent, Warrants owned by Holdings,
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with Holdings, shall be
18
considered as though not outstanding, except that for the purposes of
determining whether the Warrant Agent shall be protected in relying on any such
direction, waiver or consent, only Warrants that the Warrant Agent knows are so
owned shall be so disregarded.
3.11. Temporary Warrants
Until certificates representing Warrants are ready for delivery,
Holdings may prepare and the Warrant Agent, upon receipt of a Warrant
Authentication Order, shall authenticate temporary Warrants. Temporary Warrants
shall be substantially in the form of certificated Warrants but may have
variations that Holdings considers appropriate for temporary Warrants and as
shall be reasonably acceptable to the Warrant Agent. Without unreasonable
delay, Holdings shall prepare and the Warrant Agent shall authenticate
definitive Warrants in exchange for temporary Warrants.
Holders of temporary Warrants shall be entitled to all of the benefits
of this Warrant Agreement.
3.12. Cancellation.
Holdings at any time may deliver Warrants to the Warrant Agent for
cancellation. The Warrant Registrar and Warrant Paying Agent shall forward to
the Warrant Agent any Warrants surrendered to them for registration of transfer,
exchange or payment. The Warrant Agent and no one else shall cancel all
Warrants surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy canceled Warrants (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Warrants shall be delivered to Holdings. Holdings
may not issue new Warrants to replace Warrants that it has paid or that have
been delivered to the Warrant Agent for cancellation.
3.13. Separation
(a) Notwithstanding the provisions of this Section 3, until Separated
(as defined herein) each Warrant Certificate will be held by the Trustee, as
custodian for the registered holders of each Note or Note in global form, and
will be registered in the name of the registered holder of such Note initially
in the amount specified to the Warrant Agent by Holdings. Such holder may, at
any time, on or after the Separation Date (as defined herein), at its option, by
notice to the Unit Agent, elect to separate and/or separately transfer the Notes
and the Warrants represented by such Note or Notes in global form containing a
Warrant, in whole or in part, for a definitive Warrant Certificate or Warrant
Certificates or a beneficial interest in a Global Warrant evidencing the
underlying Warrants and for a Note or Notes or a beneficial interest in a Global
Note of a like aggregate principal amount at maturity of authorized
denominations (such surrender and exchange being referred to herein as a
"SEPARATION" and the related Warrants being referred to as "SEPARATED");
provided that no delay or failure on the part of the Trustee or the Warrant
Agent to exchange such Warrant Certificate and Note or Notes shall affect the
Separation of the Notes and the Warrants or their separate transferability.
Prior to Separation, record ownership of the Warrants will be evidenced by the
certificates for Units or a Global Unit registered in the names of the holders
of the Unit or Global Unit, which certificates or Global Unit will include a
Warrant substantially in the form set forth in the Unit Agreement, and the right
to receive or exercise Warrants will be transferable only in connection with the
transfer of such Units or a beneficial interest in a Global Unit.
(b) All Units and Global Units containing a Warrant presented for
Separation shall be duly endorsed by the registered holder or holders thereof or
by the duly appointed legal representative
19
thereof or by a duly authorized attorney, and in the case of transfer, which
signature shall be a medallion guaranteed by an institution which is a member of
a Securities Transfer Association recognized signature guarantee program. Upon
notice from the Trustee of a Separation, the Warrant Agent shall, with respect
to Definitive Warrants, deliver (or cause to be delivered) the Warrant
Certificate or Warrant Certificates executed by Holdings and countersigned by
the Warrant Agent in the name of such registered holder or holders or such
transferee or transferees or shall, with respect to Global Warrants, deliver (or
cause to be delivered) a Global Warrant (CUSIP 02755R111) executed by Holdings
and countersigned by the Warrant Agent in the name of the Depositary or its
nominee for such aggregate number of Warrants (or, with respect to a Global
Warrant, increasing the number of Warrants represented thereby in such amount)
as shall equal one Warrant for each $1,000 principal amount at maturity of Notes
so exchanged for Separation, bearing numbers or other distinguishing symbols not
contemporaneously outstanding, to the person or persons entitled thereto. Upon
registration of transfer or exchange of a Warrant Certificate, the Warrant Agent
shall countersign and deliver by certified mail a new Warrant Certificate to the
persons entitled thereto.
(c) No service charge shall be made for registration of transfer or
exchange upon surrender of any Warrant Certificate at the office of the Warrant
Agent maintained for that purpose. Holdings may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Warrant Certificates.
Section 4. Separation of Warrants; Terms of Warrants; Exercise of
------------------------------------------------------
Warrants.
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4.1. The Notes and Warrants will not be separately transferable until
the close of business on the earliest to occur of (i) 180 days from the date of
issuance, (ii) such earlier date Bear, Stearns & Co. Inc. may determine, (iii)
the occurrence of a Change of Control (as defined in the Indenture) the
commencement of the Exchange Offer and (v) the effectiveness of the shelf
registration statement relating to the Notes (the earliest of such dates, the
"SEPARATION DATE"), at which time such Warrants shall become separately
transferable. Subject to the terms of this Agreement, each Warrant holder shall
have the right, which may be exercised during the period commencing at the
opening of business on the Separation Date and until 5:00 p.m., New York City
time on April 1, 2008 (the "EXERCISE PERIOD"), to receive from Holdings the
number of fully paid and nonassessable Warrant Shares which the holder may at
the time be entitled to receive on exercise of such Warrants and payment of the
exercise price (the "EXERCISE PRICE") then in effect for such Warrant Shares;
provided that holders shall be able to exercise their Warrants only if a
registration statement relating to the Warrant Shares is then in effect, or the
exercise of such Warrants is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and such securities
are qualified for sale or exempt from qualification under the applicable
securities laws of the states in which the various holders of the Warrants or
other persons to whom it is proposed that the Warrant Shares be issued on
exercise of the Warrants reside. Each holder may exercise its right, during the
Exercise Period, to receive Warrant Shares on a net basis, such that, without
the exchange of any funds, the holder tenders Notes having an aggregate
principal amount at maturity, plus accrued and unpaid interest, if any thereon,
to the date of exercise equal to the Exercise Price of the Warrants being
exercised by such holder. Each Warrant not exercised prior to 5:00 p.m., New
York City time, on April 1, 2008 (the "EXPIRATION DATE") shall become void and
all rights thereunder and all rights in respect thereof under this agreement
shall cease as of such time. No adjustments as to dividends will be made upon
exercise of the Warrants.
4.2. In order to exercise all or any of the Warrants represented by a
Warrant Certificate, (i) in the case of Definitive Warrants, the holder thereof
must surrender for exercise the Warrant Certificate to Holdings at the office of
the Warrant Agent at its New York corporate trust office
20
set forth in Section 6 hereof, (ii) in the case of a book-entry interest in a
Global Warrant, the exercising Participant whose name appears on a securities
position listing of the Depositary as the holder of such book-entry interest
must comply with the Depositary's procedures relating to the exercise of such
book-entry interest in such Global Warrant and (iii) in the case of both Global
Warrants and Definitive Warrants, the holder thereof or the Participant, as
applicable, must deliver to Holdings at the office of the Warrant Agent the form
of election to purchase on the reverse thereof duly filled in and signed, which
signature shall be a medallion guaranteed by an institution which is a member of
a Securities Transfer Association recognized signature guarantee program, and
upon payment to the Warrant Agent for the account of Holdings of the Exercise
Price, which is set forth in the form of Warrant Certificate as adjusted as
herein provided, for the number of Warrant Shares in respect of which such
Warrants are then exercised. Payment of the aggregate Exercise Price shall be
made (i) in cash, by wire transfer or by certified or official bank check
payable to the order of Holdings or (ii) on a net basis in the manner provided
in Section 4.1 hereof.
4.3. Subject to the provisions of Section 5 hereof, upon compliance
with clause (b) above, Holdings shall deliver or cause to be delivered with all
reasonable dispatch, to or upon the written order of the holder and in such name
or names as the Warrant holder or Participant may designate, a certificate or
certificates for the number of whole Warrant Shares issuable upon the exercise
of such Warrants or other securities or property to which such holder is
entitled hereunder, together with cash as provided in Section 9 hereof; provided
that if any consolidation, merger or lease or sale of assets is proposed to be
effected by Holdings as described in Section 8.13 hereof, or a tender offer or
an exchange offer for shares of Common Stock shall be made, upon such surrender
of Warrants and payment of the Exercise Price as aforesaid, Holdings shall, as
soon as possible, but in any event not later than two business days thereafter,
deliver or cause to be delivered the full number of Warrant Shares issuable upon
the exercise of such Warrants in the manner described in this sentence or other
securities or property to which such holder is entitled hereunder, together with
cash as provided in Section 9 hereof. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and payment of the Exercise Price.
4.4. The Warrants shall be exercisable, at the election of the
holders thereof, either in full or from time to time in part. If less than all
the Warrants represented by a Definitive Warrant are exercised, such Definitive
Warrant shall be surrendered and a new Definitive Warrant of the same tenor and
for the number of Warrants which were not exercised shall be executed by
Holdings and delivered to the Warrant Agent and the Warrant Agent shall
countersign the new Definitive Warrant, registered in such name or names as may
be directed in writing by the holder, and shall deliver the new Definitive
Warrant to the Person or Persons entitled to receive the same. The Warrant
Agent shall make such notations on Schedule A to each Global Warrant as are
required to reflect any change in the number of Warrants represented by such
Global Warrant resulting from any exercise in accordance with the terms hereof.
4.5. All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent. Such canceled Warrant Certificates
shall then be disposed of by the Warrant Agent in a manner satisfactory to
Holdings. The Warrant Agent shall account promptly to Holdings with respect to
Warrants exercised and concurrently pay to Holdings all monies received by the
Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
4.6. The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the holders
during normal business hours at its office.
21
Holdings shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
Section 5. Payment of Taxes.
----------------
Holdings will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided,
however, that Holdings shall not be required to pay any tax or taxes which may
be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Warrant Shares in a name other than that of
the registered holder of a Warrant Certificate surrendered upon the exercise of
a Warrant, and Holdings shall not be required to issue or deliver such Warrant
Certificates unless or until the person or persons requesting the issuance
thereof shall have paid to Holdings the amount of such tax or shall have
established to the satisfaction of Holdings that such tax has been paid.
Section 6. Reservation of Warrant Shares.
-----------------------------
6.1. Holdings will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of Warrants, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise of all outstanding Warrants.
6.2. Holdings or, if appointed, the transfer agent for the Common
Stock (the "TRANSFER AGENT") and every subsequent transfer agent for any shares
of Holdings' capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
Holdings will keep a copy of this Agreement on file with the Transfer Agent and
with every subsequent transfer agent for any shares of Holdings' capital stock
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent the stock certificates required to
honor outstanding Warrants upon exercise thereof in accordance with the terms of
this Agreement. Holdings will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in Section 9. Holdings will furnish such
Transfer Agent a copy of all notices of adjustments and certificates related
thereto, transmitted to each Holder pursuant to Section 10 hereof.
6.3. Before taking any action which would cause an adjustment
pursuant to Section 8 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares, Holdings will take any corporate action
which may, in the opinion of its counsel (which may be counsel employed by
Holdings), be necessary in order that Holdings may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
6.4. Holdings covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free
of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issue thereof.
Section 7. Obtaining Stock Exchange Listings.
---------------------------------
22
Holdings will from time to time take all action which may be necessary
so that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on the principal securities exchanges and markets
within the United States of America, if any, on which other shares of Common
Stock are then listed.
Section 8. Adjustment of Exercise Price and Number of Warrant Shares
---------------------------------------------------------
Issuable.
- --------
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 8. For purposes of this
Section 8 "COMMON STOCK" means shares now or hereafter authorized of any class
of common stock of Holdings and any other stock of Holdings, however designated,
that has the right (subject to any prior rights of any class or series of
preferred stock) to participate in any distribution of the assets or earnings of
Holdings without limit as to per share amount.
8.1. Adjustment for Change in Capital Stock. If Holdings (i) pays a
--------------------------------------
dividend or makes a distribution on its Common Stock in shares of its Common
Stock, (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 in effect immediately prior to such action shall be
proportionately adjusted so that the holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of Holdings
which he would have owned immediately following such action if such Warrant had
been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record
date 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 holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of Holdings, Holdings shall
determine the allocation of the adjusted Exercise Price between the classes of
capital stock. After such allocation, the exercise privilege and the Exercise
Price of each class of capital stock shall thereafter be subject to adjustment
on terms comparable to those applicable to Common Stock in this Section 8. Such
adjustment shall be made successively whenever any event listed above shall
occur.
8.2. Adjustment for Rights Issue. If Holdings distributes any rights,
---------------------------
options or warrants to all holders of its Common Stock entitling them for a
period expiring within 45 days after the record date mentioned below to purchase
shares of Common Stock at a price per share less than the Fair Value (as defined
herein) per share on that record date, the Exercise Price shall be adjusted in
accordance with the 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.
23
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the Fair Value 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.
8.3. Adjustment for Other Distributions. If Holdings 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
Holdings, the Exercise Price shall be adjusted in accordance with the formula:
E' = E x M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Fair Value per share of Common Stock on the record date mentioned
below.
F = the fair market value on the record date of the assets, securities,
rights or warrants to be distributed in respect of one share of Common
Stock as determined in good faith by the Board of Directors of
Holdings (the "BOARD OF DIRECTORS").
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 Section 8.3 does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of Holdings prepared in accordance with generally accepted accounting
principles. Also, this Section 8.3 does not apply to rights, options or
warrants referred to in Section 8.2 hereof.
8.3.1. Adjustment for Common Stock Issue.
---------------------------------
If Holdings issues shares of Common Stock for a consideration per
share less than the Fair Value per share on the date Holdings fixes the offering
price of such additional shares, the Exercise Price shall be adjusted in
accordance with the formula:
C
-
E' = E x O + M
-------
A
24
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.
C = the aggregate consideration received for the issuance of such
additional shares.
M = the Fair Value per share on the date of issuance 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 Section 8.4 does not apply to:
(i) any of the transactions described in Sections 8.2 and 8.3
hereof,
(ii) the exercise of Warrants, or the conversion or exchange of
other securities convertible or exchangeable for Common Stock,
(iii) Common Stock issued to Holdings' employees under bona fide
employee benefit plans adopted by the Board of Directors and approved
by the holders of Common Stock when required by law, if such Common
Stock would otherwise be covered by this subsection (d) (but only to
the extent that the aggregate number of shares excluded hereby and
issued after the date of this Warrant Agreement shall not exceed 15%
of the Common Stock outstanding at the time of the adoption of each
such plan, exclusive of antidilution adjustments thereunder),
(iv) Common Stock upon the exercise of rights or warrants issued
to the holders of Common Stock,
(v) Common Stock issued to shareholders of any person which
merges into Holdings in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger, or
(vi) the issuance of shares of Common Stock pursuant to rights,
options or warrants which were originally issued in a Non-Affiliate
Sale (as defined below) together with one or more other securities as
part of a unit at a price per unit.
8.4. Adjustment for Convertible Securities Issue.
-------------------------------------------
If Holdings issues any securities convertible into or
exchangeable for Common Stock (other than securities issued in
transactions described in Sections 8.2 and 8.3
25
hereof for a consideration per share of Common Stock initially
deliverable upon conversion or exchange of such securities less than
the Fair Value per share on the date of issuance of such securities,
the Exercise Price shall be adjusted in accordance with this formula:
C
-
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.
C = the aggregate consideration received for the issuance of such
securities.
M = the Fair Value per share on the date of issuance of such securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion 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 or exchange of
such securities have 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 or exchange of such securities.
This Section 8.5 does not apply to convertible securities issued to
shareholders of any person which merges into Holdings, or with a subsidiary of
Holdings, in proportion to their stock holdings of such person immediately prior
to such merger, upon such merger.
8.5. Consideration Received.
----------------------
For purposes of any computation respecting consideration received
pursuant to Sections 8.4 and 8.5 hereof 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 Holdings 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
26
be deemed to be the fair market value thereof as determined in good
faith by the Board of Directors (irrespective of the accounting
treatment thereof), whose determination shall be conclusive, and
described in a Board resolution which shall be filed with the Warrant
Agent;
(iii) in the case of the issuance of securities convertible into
or exchangeable for shares, the aggregate consideration received
therefor shall be deemed to be the consideration received by Holdings
for the issuance of such securities plus the additional consideration,
if any, to be received by Holdings upon the conversion or exchange
thereof (the consideration in each case to be determined in the same
manner as provided in clauses (1) and (2) of this subsection); and
(iv) in the case of the issuance of shares of Common Stock
pursuant to rights, options or warrants, which rights, options or
warrants were originally issued together with one or more other
securities as part of a unit, the consideration shall be deemed to be
(i) the fair value of such rights, options or warrants at the time of
issuance thereof as determined in good faith by the Board of Directors
whose determination shall be conclusive and described in a Board
resolution which shall be filed with the Warrant Agent plus (ii) the
additional consideration, if any, to be received by Holdings upon the
exercise, conversion or exchange thereof (as determined in the same
manner as provided in clause (1) and (2) of this subsection).
8.6. Fair Market Value. (A) the average over the 20 trading days
-----------------
ending on the date immediately preceding the date of such determination of the
last reported sale price, or, if no such sale takes place on any such day, the
closing bid price, in either case as reported for consolidated transactions on
the principal national securities exchange (including the NASDAQ National
Market) on which such security is listed or admitted for trading; provided,
however, that if any event that results in an adjustment of the Exercise Price
occurs during the period beginning on the first day of such 20-day period and
ending on the date immediately preceding the date of determination, the Fair
Market Value as determined pursuant to the foregoing will be appropriately
adjusted to reflect the occurrence of such event or (B) if such security is not
listed on any exchange or admitted for trading on the NASDAQ Stock Market, the
Fair Market Value shall be (1) in connection with a sale to a party that is not
an Affiliate of Holdings in an arm's length transaction (a "NON-AFFILIATE
SALE"), the price per security at which such security is sold and (2) in
connection with any sale to an Affiliate of Holdings, (a) the last price per
security at which such security was sold in a Non-Affiliate Sale within the
three-month period preceding such date of determination or (b) if clause (a) is
not applicable, the fair market value of such security determined in good faith
by (i) a majority of the Board of Directors of Holdings, including a majority of
the Disinterested Directors, and approved in a board resolution delivered to the
Warrant Agent or (ii) a nationally recognized investment banking, appraisal or
valuation firm, which is not an Affiliate of Holdings, in each case, taking into
account, among other factors deemed relevant by the Board of Directors or such
investment banking, appraisal or valuation firm, the trading price and volume of
such security on any national securities exchange or automated quotation system
on which such security is traded.
8.7. 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 1.0% 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 8 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
27
8.8. When No Adjustment Required. No adjustment need be made for a
---------------------------
transaction referred to Sections 8.1., 8.2, 8.3, 8.4 or 8.5 hereof, 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. No adjustment need be made for (i) rights to purchase Common Stock
pursuant to a Holdings plan for reinvestment of dividends or interest, (ii) a
change in the par value or no 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.
8.9. Notice of Adjustment. Whenever the Exercise Price is adjusted,
--------------------
Holdings shall provide the notices required by Section 10 hereof.
8.10. Voluntary Reduction. Holdings from time to time may
-------------------
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, Holdings shall mail to
Warrant holders a notice of the reduction. Holdings 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 in which it will be
in effect. A reduction of the Exercise Price does not change or adjust the
Exercise Price otherwise in effect for purposes of Sections 8.1, 8.2., 8.3.,8.4
and 8.5 hereof.
8.11. Notice of Certain Transactions. If (i) Holdings takes any
------------------------------
action that would require an adjustment in the Exercise Price pursuant to
Sections 8.1, 8.2., 8.3.,8.4 and 8.5 hereof and if Holdings does not arrange for
Warrant holders to participate pursuant to Section 8.9 hereof, (ii) Holdings
takes any action that would require a supplemental Warrant Agreement pursuant to
Section 8.13 hereof or (iii) there is a liquidation or dissolution of Holdings,
then Holdings shall mail to Warrant holders a notice stating the proposed record
date for a dividend or distribution or the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger, transfer,
lease, liquidation or dissolution. Holdings shall mail the notice at least 15
days before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
8.12. Reorganization of Holdings. Immediately after the Effective
--------------------------
Time, Holdings consolidates or merges with or into, or transfers or leases all
or substantially all its assets to, any person, upon consummation of such
transaction the Warrants 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 Holdings, or the person to which such sale or conveyance shall have been
made, shall enter into a supplemental Warrant 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 8.13. The successor
company shall mail to Warrant holders a notice describing the supplemental
Warrant Agreement. If the issuer of securities deliverable upon exercise of
Warrants under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement. If this Section 8.13 applies, Sections 8.1,
8.2., 8.3.,8.4 and 8.5 hereof do not apply.
8.13. Holdings Determination Final. Any determination that Holdings
----------------------------
or the Board of Directors must make pursuant to Section 8.1, 8.2., 8.3., 8.4,
8.5, 8.6, 8.7d or 8.8 hereof is conclusive.
28
8.14. Warrant Agent's Disclaimer. The Warrant Agent has no duty to
--------------------------
determine when an adjustment under this Section 8 should be made, how it should
be made or what it should be. The Warrant Agent has no duty to determine whether
any provisions of a supplemental Warrant Agreement under Section 8.13 hereof are
correct. The Warrant Agent makes no representation as to the validity or value
of any securities or assets issued upon exercise of Warrants. The Warrant Agent
shall not be responsible for the Holdings' failure to comply with this
Section 8.
8.15. When Issuance or Payment May Be Deferred. In any case in which
----------------------------------------
this Section 8 shall require that an adjustment in the Exercise Price be made
effective as of a record date for a specified event, Holdings 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
Holdings, if any, issuable upon such exercise over and above the Warrant Shares
and other capital stock of Holdings, if any, issuable upon such exercise on the
basis of the Exercise Price and (ii) paying to such holder any amount in cash in
lieu of a fractional share pursuant to Section 9 hereof; provided that Holdings
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.
8.16. Adjustment in Number of Shares. Upon each adjustment of the
------------------------------
Exercise Price pursuant to this Section 8, each Warrant outstanding prior to the
making of the adjustment in the Exercise Price 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 or Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
8.17. Form of Warrants. Irrespective of any adjustments in the
----------------
Exercise Price or the number or kind of shares purchasable upon the exercise of
the Warrants, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
Section 9. Fractional Interests.
--------------------
Holdings shall not be required to issue fractional Warrant Shares on
the exercise of Warrants. If more than one Warrant shall be presented for
exercise in full at the same time by the same holder, the number of full Warrant
Shares which shall be issuable upon the exercise thereof shall be
29
computed on the basis of the aggregate number of Warrant Shares purchasable on
exercise of the Warrants so presented. If any fraction of a Warrant Share would,
except for the provisions of this Section 9, be issuable on the exercise of any
Warrants (or specified portion thereof), Holdings shall pay an amount in cash
equal to the Exercise Price on the day immediately preceding the date the
Warrant is presented for exercise, multiplied by such fraction.
Section 10. Notices to Warrant Holders.
--------------------------
Upon any adjustment of the Exercise Price pursuant to Section 8,
Holdings shall promptly thereafter (i) cause to be filed with the Warrant Agent
a certificate of a firm of independent public accountants of recognized standing
selected by the Board of Directors of Holdings (who may be the regular auditors
of Holdings) setting forth the Exercise Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculations are based and setting forth the number of Warrant Shares (or
portion thereof) issuable after such adjustment in the Exercise Price, upon
exercise of a Warrant and payment of the adjusted Exercise Price, which
certificate shall be conclusive evidence of the correctness of the matters set
forth therein, and (ii) cause to be given to each of the registered holders of
the Warrant Certificates at his address appearing on the Warrant register
written notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 10.
In case:
(a) Holdings shall authorize the issuance to all holders of shares of
Common Stock of rights, options or warrants to subscribe for or purchase shares
of Common Stock or of any other subscription rights or warrants; or
(b) Holdings shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other than
cash dividends or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in shares of Common Stock or distributions
referred to in Section 8.1 hereof); or
(c) of any consolidation or merger to which Holdings is a party and
for which approval of any shareholders of Holdings is required, or of the
conveyance or transfer of the properties and assets of Holdings substantially as
an entirety, or of any reclassification or change of Common Stock issuable upon
exercise of the Warrants (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or a tender offer or exchange offer for shares of Common Stock;
or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Holdings; or
(e) Holdings proposes to take any action (other than actions of the
character described in Section 8.1 which would require an adjustment of the
Exercise Price pursuant to Section 8, then Holdings shall cause to be filed with
the Warrant Agent and shall cause to be given to each of the registered holders
of the Warrant Certificates at his address appearing on the Warrant register, at
least 20 days (or 10 days in any case specified in clauses (a) or (b) above)
prior to the applicable record date hereinafter specified, or promptly in the
case of events for which there is no record date, by first-class mail, postage
prepaid, a written notice stating (i) the date as of which the holders of record
of shares of
30
Common Stock to be entitled to receive any such rights, options, warrants or
distribution are to be determined, or (ii) the initial expiration date set forth
in any tender offer or exchange offer for shares of Common Stock, or (iii) the
date on which any such consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of shares of Common
Stock shall be entitled to exchange such shares for securities or other
property, if any, deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up. The failure to
give the notice required by this Section 10 or any defect therein shall not
affect the legality or validity of any distribution, right, option, warrant,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up, or the vote upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of Holdings or any other
matter, or any rights whatsoever as shareholders of Holdings.
Section 11. Merger, Consolidation or Change of Name of Warrant Agent.
--------------------------------------------------------
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor warrant agent under the provisions of
Section 14. In case at the time such successor to the Warrant Agent shall
succeed to the agency created by this Agreement, and in case at that time any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and in case at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor to the Warrant Agent; and in all
such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
Section 12. Warrant Agent.
-------------
The Warrant Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which Holdings
and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of Holdings and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
31
assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of
Holdings to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by Holdings.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for Holdings) and the Warrant Agent shall
incur no liability or responsibility to Holdings or to any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
Holdings or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(e) Holdings agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement except as a result of its gross negligence or bad
faith.
(f) Holdings shall indemnify the Warrant Agent against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Warrant
Agreement, including the costs and expenses of enforcing this Warrant Agreement
against Holdings (including this Section 12(f)) and defending itself against any
claim (whether asserted by Holdings or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith. The Warrant Agent shall notify
Holdings promptly of any claim for which it may seek indemnity. Failure by the
Warrant Agent to so notify Holdings shall not relieve Holdings of its
obligations hereunder. Holdings shall defend the claim and the Warrant Agent
shall cooperate in the defense. The Warrant Agent may have separate counsel and
Holdings shall pay for reasonable fees and expenses of such counsel. Holdings
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. All rights of action under this Agreement or
under any of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrant Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Warrants, as their respective rights or interests
may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other securities
of Holdings or become pecuniarily interested in any transaction in which
Holdings may be interested, or contract with or lend money to Holdings or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for Holdings or for any other legal entity.
32
(h) The Warrant Agent shall act hereunder solely as agent for
Holdings, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own gross negligence
or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or with respect to whether
any such Warrant Shares or other securities will when issued be validly issued
and fully paid and nonassessable, and makes no representation with respect
thereto.
Section 13. Change of Warrant Agent.
-----------------------
If the Warrant Agent shall become incapable of acting as Warrant
Agent, Holdings shall appoint a successor to such Warrant Agent. If Holdings
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such incapacity by the Warrant Agent or by the registered
holder of a Warrant Certificate, then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by Holdings or by such a court, the duties of the Warrant
Agent shall be carried out by Holdings. The holders of a majority of the
unexercised Warrants shall be entitled at any time to remove the Warrant Agent
and appoint a successor to such Warrant Agent. Such successor to the Warrant
Agent need not be approved by Holdings or the former Warrant Agent. After
appointment the successor to the Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor to the Warrant Agent any property at the
time held by it hereunder and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in this Section 13, however, or any defect therein, shall not
affect the legality or validity of the appointment of a successor to the Warrant
Agent.
Section 14. Registration.
------------
Holders shall be able to exercise their Warrants only if a
registration statement relating to the Warrant Shares is then in effect, or the
exercise of such Warrants is exempt from the registration requirements of the
Securities Act, and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various holders of the Warrants or other persons to whom it is proposed that the
Warrant Shares be issued on exercise of the Warrants reside.
Section 15. Reports.
-------
(a) Whether or not required by the rules and regulations of the
Securities and Exchange Commission (the "COMMISSION "), so long as any Warrants
are outstanding, Holdings shall furnish to the Warrant Agent and the holders of
Warrants (i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
33
10-K if Holdings were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by Holdings'
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if Holdings were required
to file such reports. In addition, whether or not required by the rules and
regulations of the Commission, Holdings shall file a copy of all such
information and reports with the Commission for public availability (unless the
Commission shall not accept such a filing) and make such information available
to securities analysts and prospective investors upon request.
(b) Holdings shall provide the Warrant Agent with a sufficient number
of copies of all such reports that the Warrant Agent may be required to deliver
to the holders of the Warrants under this Section 15.
Section 16. Notices to Holdings and Warrant Agent.
-------------------------------------
Any notice or demand authorized by this Agreement to be given or made
by the Warrant Agent or by the registered holder of any Warrant Certificate to
or on Holdings shall be sufficiently given or made when and if deposited in the
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by Holdings with the Warrant Agent), as follows:
American Mobile Satellite Corporation
10802 Parkridge Boulevard
Reston, Virginia 20191
Attention: Randy S. Segal, Esq.
In case Holdings shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by Holdings or by
the registered holder(s) of any Warrant Certificate to the Warrant Agent shall
be sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with Holdings) to the Warrant Agent as follows:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Attention: Steven Cimalore
Section 17. Supplements and Amendments.
--------------------------
From time to time, Holdings and the Warrant Agent, without consent of
the holders of the Warrants, may amend or supplement the Warrant Agreement for
certain purposes, including curing defects or inconsistencies or making changes
that do not materially adversely affect the rights of any holder. Any amendment
or supplement to the Warrant Agreement that has a material adverse effect on the
interests of the holders of the Warrants requires the written consent of the
holders of a majority of the then outstanding Warrants. The consent of each
holder of the Warrants is required for any amendment pursuant to which the
Exercise Price would be increased or the number of Warrant Shares purchasable
34
upon exercise of Warrants would be decreased (other than pursuant to adjustments
provided for in the Warrant Agreement as generally described above).
Section 18. Successors.
----------
All the covenants and provisions of this Agreement by or for the
benefit of Holdings or the Warrant Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
Section 19. Termination.
-----------
This Agreement shall terminate at 5:00 p.m., New York City time on
April 1, 2008. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date if all Warrants have been exercised. The provisions of Section
19 shall survive such termination.
Section 20. Governing Law.
-------------
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the internal laws of said State.
Section 21. Benefits of This Agreement.
--------------------------
Nothing in this Agreement shall be construed to give to any person or
corporation other than Holdings, the Warrant Agent and the registered holders of
the Warrant Certificates any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and exclusive benefit
of Holdings, the Warrant Agent and the registered holders of the Warrant
Certificates.
Section 22. Counterparts.
------------
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
35
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day and year first above written.
AMERICAN MOBILE SATELLITE CORPORATION
By:
---------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
---------------------------------------
Name:
Title:
Warrant Agreement signature page(s)
36
EXHIBIT A1
FORM OF WARRANT
[Face of Warrant Certificate]
[INSERT PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISION OF THE
WARRANT AGREEMENT]
[INSERT GLOBAL WARRANT LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
WARRANT AGREEMENT]
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT TO
THE CONTRARY, IN THE EVENT THAT THE CONSENT OF THE FEDERAL COMMUNICATIONS
COMMISSION ("FCC") TO THE EXERCISE OF THIS WARRANT IS REQUIRED TO BE OBTAINED
PRIOR TO SUCH EXERCISE, THIS WARRANT SHALL NOT BE EXERCISABLE UNLESS AND UNTIL
SUCH FCC CONSENT SHALL HAVE BEEN OBTAINED. IN THE EVENT THAT THIS WARRANT IS
INTENDED TO BE EXERCISED AND SUCH FCC CONSENT IS REQUIRED TO BE OBTAINED,
HOLDINGS AND THE HOLDER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH
FCC CONSENT PROMPTLY.
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT TO
THE CONTRARY, INCLUDING BUT NOT LIMITED TO THE PRECEDING PARAGRAPH, THIS WARRANT
SHALL NOT BE EXERCISABLE IN THE EVENT THAT SUCH EXERCISE WOULD CAUSE THE
AGGREGATE ALIEN OWNERSHIP OR VOTING INTEREST IN HOLDINGS TO INCREASE TO ANY
LEVEL ABOVE 24.5%, AS DETERMINED BY APPLICABLE FCC RULES, REGULATIONS, AND
POLICIES, IT BEING WELL UNDERSTOOD THAT THIS WARRANT SHALL NOT BE EXERCISABLE IN
THE EVENT THAT SUCH ALIEN OWNERSHIP OR VOTING INTEREST ALREADY EXCEEDS 24.5%, IT
BEING FURTHER UNDERSTOOD THAT IN NO EVENT SHALL HOLDINGS BE REQUIRED HEREUNDER
TO SEEK FCC CONSENT TO EXCEED FCC ALIEN OWNERSHIP OR VOTING LIMITATIONS
APPLICABLE TO HOLDINGS.
EXERCISABLE ON OR AFTER THE SEPARATION DATE
No. ______ _________ Warrants
Warrant Certificate
AMERICAN MOBILE SATELLITE CORPORATION
This Warrant Certificate certifies that ______________, or registered
assigns, is the registered holder of Warrants expiring April 1, 2008 (the
"WARRANTS") to purchase Common Stock. Each Warrant entitles the holder upon
exercise to receive from Holdings commencing on the Separation Date (as defined
in the Warrant Agreement) until 5:00 p.m. New York City Time on April 1, 2008,
the number of fully paid and nonassessable Warrant Shares as set forth in the
Warrant Agreement, subject to adjustment as set forth in Section 8 of the
Warrant Agreement, at the initial exercise price (the "EXERCISE PRICE") of
$12.51 per share payable in lawful money of the United States of America upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement referred to on the
A1-1
reverse hereof. Notwithstanding the foregoing, Warrants may be exercised without
the exchange of funds pursuant to the net exercise provisions of Section 4 of
the Warrant Agreement. The Exercise Price and number of Warrant Shares issuable
upon exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement. No Warrant may be exercised
after 5:00 p.m., New York City Time on April 1, 2008, and to the extent not
exercised by such time such Warrants shall become void. Reference is hereby made
to the further provisions of this Warrant Certificate set forth on the reverse
hereof and such further provisions shall for all purposes have the same effect
as though fully set forth at this place. This Warrant Certificate shall not be
valid unless countersigned by the Warrant Agent, as such term is used in the
Warrant Agreement. This Warrant Certificate shall be governed and construed in
accordance with the internal laws of the State of New York.
A1-2
IN WITNESS WHEREOF, American Mobile Satellite Corporation has caused
this Warrant Certificate to be signed by its President and Treasurer and by its
Vice President and Secretary and may cause its corporate seal to be affixed
hereunto or imprinted hereon.
Dated: ________ __, 1998
AMERICAN MOBILE SATELLITE CORPORATION
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Countersigned:
STATE STREET BANK AND TRUST COMPANY,
as Warrant Agent
By:
-------------------------------
Name:
Title:
A1-3
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring April 1, 2008 entitling the holder on
exercise to receive shares of Common Stock, and are issued or to be issued
pursuant to a Warrant Agreement dated as of March 31, 1998 (the "WARRANT
AGREEMENT"), duly executed and delivered by Holdings to State Street Bank and
Trust Company, as warrant agent (the "WARRANT AGENT"), which Warrant Agreement
is hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, Holdings and
the holders (the words "HOLDERS" or "HOLDER" meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to Holdings.
Warrants may be exercised at any time on or after the Separation Date
and on or before April 1, 2008; provided that holders shall be able to exercise
their Warrants only if a registration statement relating to the Warrant Shares
is then in effect, or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various holders of the Warrants or other persons to whom it is proposed that the
Warrant Shares be issued on exercise of the Warrants reside. In order to
exercise all or any of the Warrants represented by this Warrant Certificate, (i)
in the case of Definitive Warrants, the holder must surrender for exercise this
Warrant Certificate to the Warrant Agent at its New York corporate trust office
set forth in Section 16 of the Warrant Agreement, (ii) in the case of a book-
entry interest in a Global Warrant, the exercising Participant whose name
appears on a securities position listing of the Depositary as the holder of such
book-entry interest must comply with the Depositary's procedures relating to the
exercise of such book-entry interest in such Global Warrant and (iii) in the
case of both Global Warrants and Definitive Warrants, the holder thereof or the
Participant, as applicable, must deliver to the Warrant Agent the form of
election to purchase on the reverse hereof duly filled in and signed, which
signature shall be a medallion guaranteed by an institution which is a member of
a Securities Transfer Association recognized signature guarantee program, and
upon payment to the Warrant Agent for the account of Holdings of the Exercise
Price, as adjusted as provided in the Warrant Agreement, for the number of
Warrant Shares in respect of which such Warrants are then exercised. No
adjustment shall be made for any dividends on any Common Stock issuable upon
exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but Holdings will pay the
cash value thereof determined as provided in the Warrant Agreement.
Holdings has agreed under the terms of the Warrant Agreement to file
and use its reasonable best efforts to make effective no later than the earlier
of (i) one year after the date of Warrant Agreement and (ii) 65 days after the
occurrence of a Change of Control and (subject to Black Out Periods) to maintain
effective until expiration or exercise of all Warrants shelf registration
statements (the "REGISTRATION STATEMENTS") on appropriate forms under the
Securities Act covering the issuance and resale of Warrant Shares upon exercise
of the Warrants.
A1-4
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
Holdings and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither Holdings nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of Holdings.
A1-5
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _______ shares of Common
Stock and herewith tenders payment for such shares to the order of Holdings in
the amount of $______ in accordance with the terms hereof unless the holder is
exercising Warrants pursuant to the net exercise provisions of Section 4 of the
Warrant Agreement in which case the holder shall tender Notes having an
aggregate principal amount at maturity, plus accrued and unpaid interest, if any
thereon, to the date of exercise equal to the Exercise Price of the Warrants
being exercised by such holder. The undersigned requests that a certificate for
such shares be registered in the name of _______________________________, whose
address is _______________________________ and that such shares be delivered to
________________ whose address is _________________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of such shares be registered in the name of
______________, whose address is _________________________, and that such
Warrant Certificate be delivered to _________________, whose address is
__________________.
Date: ______________, ____
__________________________
(Signature)
__________________________
(Signature Guaranteed)
A1-6
SCHEDULE A
SCHEDULE OF WARRANTS
EVIDENCED BY THIS GLOBAL WARRANT
The initial number of Warrants evidenced by this Global Warrant shall
be 335,000. The following decreases/increases in the number of Warrants
evidenced by this Warrant have been made:
Decrease in Increase in Total Number of
Number of Number of Warrants
Warrants Warrants Evidenced by this
Date of Evidenced by Evidenced by Global Warrant Notation Made
Decrease/ this Global this Global Following such by or on Behalf
Increase Warrant Warrant Decrease/ Increase of Warrant Agent
- -------------- ------------------ ----------------------- ---------------------- ---------------------
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A1-7
EXHIBIT A2
FORM OF WARRANT
[Face of Warrant Certificate]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO HOLDINGS, (2) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
WARRANT AGENT, AND, IN THE CASE OF ANY TRANSFER TO ANY IAI OF SECURITIES
ENTITLING THE HOLDER TO PURCHASE 10,000 OR FEWER SHARES OF COMMON STOCK, AN
OPINION OF COUNSEL IF HOLDINGS SO REQUESTS OR (6) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
(AND BASED ON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), SUBJECT IN EACH OF
THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE WARRANT AGREEMENT, (II) THIS
GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
3.6(a) OF THE WARRANT AGREEMENT, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
WARRANT AGREEMENT FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE WARRANT AGENT
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF HOLDINGS.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL WARRANT,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
A2-1
CERTIFICATED WARRANTS, ARE AS SPECIFIED IN THE WARRANT AGREEMENT. NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL WARRANT
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT
TO THE CONTRARY, IN THE EVENT THAT THE CONSENT OF THE FEDERAL COMMUNICATIONS
COMMISSION ("FCC") TO THE EXERCISE OF THIS WARRANT IS REQUIRED TO BE OBTAINED
PRIOR TO SUCH EXERCISE, THIS WARRANT SHALL NOT BE EXERCISABLE UNLESS AND UNTIL
SUCH FCC CONSENT SHALL HAVE BEEN OBTAINED. IN THE EVENT THAT THIS WARRANT IS
INTENDED TO BE EXERCISED AND SUCH FCC CONSENT IS REQUIRED TO BE OBTAINED,
HOLDINGS AND THE HOLDER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH
FCC CONSENT PROMPTLY.
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT
TO THE CONTRARY, INCLUDING BUT NOT LIMITED TO THE PRECEDING PARAGRAPH, THIS
WARRANT SHALL NOT BE EXERCISABLE IN THE EVENT THAT SUCH EXERCISE WOULD CAUSE THE
AGGREGATE ALIEN OWNERSHIP OR VOTING INTEREST IN HOLDINGS TO INCREASE TO ANY
LEVEL ABOVE 24.5%, AS DETERMINED BY APPLICABLE FCC RULES, REGULATIONS, AND
POLICIES, IT BEING WELL UNDERSTOOD THAT THIS WARRANT SHALL NOT BE EXERCISABLE IN
THE EVENT THAT SUCH ALIEN OWNERSHIP OR VOTING INTEREST ALREADY EXCEEDS 24.5%, IT
BEING FURTHER UNDERSTOOD THAT IN NO EVENT SHALL HOLDINGS BE REQUIRED HEREUNDER
TO SEEK FCC CONSENT TO EXCEED FCC ALIEN OWNERSHIP OR VOTING LIMITATIONS
APPLICABLE TO HOLDINGS.
EXERCISABLE ON OR AFTER THE SEPARATION DATE
No. ______ _________ Warrants
Warrant Certificate
AMERICAN MOBILE SATELLITE CORPORATION
This Warrant Certificate certifies that ______________, or registered
assigns, is the registered holder of Warrants expiring April 1, 2008 (the
"WARRANTS") to purchase Common Stock. Each Warrant entitles the holder upon
exercise to receive from Holdings commencing on the Separation Date (as defined
in the Warrant Agreement) until 5:00 p.m. New York City Time on April 1, 2008,
the number of fully paid and nonassessable Warrant Shares as set forth in the
Warrant Agreement, subject to adjustment as set forth in Section 8 of the
Warrant Agreement, at the initial exercise price (the "EXERCISE PRICE") of
$12.51 per share payable in lawful money of the United States of America upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement referred to on the reverse hereof.
Notwithstanding the foregoing, Warrants may be exercised without the exchange of
funds pursuant to the net exercise provisions of Section 4 of the Warrant
Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement. No Warrant may be exercised
after 5:00 p.m., New York City Time on April 1, 2008, and to the extent not
exercised by such time such Warrants shall become void. Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the
reverse hereof and such further provisions shall for all purposes have the same
A2-2
effect as though fully set forth at this place. This Warrant Certificate shall
not be valid unless countersigned by the Warrant Agent, as such term is used in
the Warrant Agreement. This Warrant Certificate shall be governed and construed
in accordance with the internal laws of the State of New York.
A2-3
IN WITNESS WHEREOF, American Mobile Satellite Corporation has caused
this Warrant Certificate to be signed by its President and Treasurer and by its
Vice President and Secretary and may cause its corporate seal to be affixed
hereunto or imprinted hereon.
Dated: ________ __, 1998
AMERICAN MOBILE SATELLITE CORPORATION
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Countersigned:
STATE STREET BANK AND TRUST COMPANY,
as Warrant Agent
By:
-----------------------------
Name:
Title:
A2-4
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring April 1, 2008 entitling the holder on
exercise to receive shares of Common Stock, and are issued or to be issued
pursuant to a Warrant Agreement dated as of March 31, 1998 (the "WARRANT
AGREEMENT"), duly executed and delivered by Holdings to State Street Bank and
Trust Company, as warrant agent (the "WARRANT AGENT"), which Warrant Agreement
is hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, Holdings and
the holders (the words "HOLDERS" or "HOLDER" meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to Holdings.
Warrants may be exercised at any time on or after the Separation Date
and on or before April 1, 2008; provided that holders shall be able to exercise
their Warrants only if a registration statement relating to the Warrant Shares
is then in effect, or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various holders of the Warrants or other persons to whom it is proposed that the
Warrant Shares be issued on exercise of the Warrants reside. In order to
exercise all or any of the Warrants represented by this Warrant Certificate, (i)
in the case of Definitive Warrants, the holder must surrender for exercise this
Warrant Certificate to the Warrant Agent at its New York corporate trust office
set forth in Section 16 of the Warrant Agreement, (ii) in the case of a book-
entry interest in a Global Warrant, the exercising Participant whose name
appears on a securities position listing of the Depositary as the holder of such
book-entry interest must comply with the Depositary's procedures relating to the
exercise of such book-entry interest in such Global Warrant and (iii) in the
case of both Global Warrants and Definitive Warrants, the holder thereof or the
Participant, as applicable, must deliver to the Warrant Agent the form of
election to purchase on the reverse hereof duly filled in and signed, which
signature shall be a medallion guaranteed by an institution which is a member of
a Securities Transfer Association recognized signature guarantee program, and
upon payment to the Warrant Agent for the account of Holdings of the Exercise
Price, as adjusted as provided in the Warrant Agreement, for the number of
Warrant Shares in respect of which such Warrants are then exercised. No
adjustment shall be made for any dividends on any Common Stock issuable upon
exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but Holdings will pay the
cash value thereof determined as provided in the Warrant Agreement.
Holdings has agreed under the terms of the Warrant Agreement to file
and use its reasonable best efforts to make effective no later than the earlier
of (i) one year after the date of Warrant Agreement and (ii) 65 days after the
occurrence of a Change of Control and (subject to Black Out Periods) to maintain
effective until expiration or exercise of all Warrants shelf registration
statements (the "REGISTRATION STATEMENTS") on appropriate forms under the
Securities Act covering the issuance and resale of Warrant Shares upon exercise
of the Warrants.
A2-5
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by a legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
Holdings and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither Holdings nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of Holdings.
A2-6
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive __________ shares of Common
Stock and herewith tenders payment for such shares to the order of Holdings in
the amount of $______ in accordance with the terms hereof unless the holder is
exercising Warrants pursuant to the net exercise provisions of Section 4 of the
Warrant Agreement in which case the holder shall tender Notes having an
aggregate principal amount at maturity, plus accrued and unpaid interest, if any
thereon, to the date of exercise equal to the Exercise Price of the Warrants
being exercised by such holder. The undersigned requests that a certificate for
such shares be registered in the name of _______________________________, whose
address is _______________________________ and that such shares be delivered to
________________ whose address is _________________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of such shares be registered in the name of
______________, whose address is _________________________, and that such
Warrant Certificate be delivered to _________________, whose address is
__________________.
Date: ______________, ____
__________________________
(Signature)
__________________________
(Signature Guaranteed)
A2-7
SCHEDULE A
SCHEDULE OF WARRANTS
EVIDENCED BY THIS GLOBAL WARRANT
The initial number of Warrants evidenced by this Global Warrant shall
be 335,000. The following decreases/increases in the number of Warrants
evidenced by this Warrant have been made:
Decrease in Increase in Total Number of
Number of Number of Warrants
Warrants Warrants Evidenced by this
Date of Evidenced by Evidenced by Global Warrant Notation Made
Decrease/ this Global this Global Following such by or on Behalf
Increase Warrant Warrant Decrease/ Increase of Warrant Agent
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A2-8
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
American Mobile Satellite Corporation
10802 Parkridge Blvd.
Reston, Virginia 20191-5416
Attention: Randy S. Segal, Esq.,
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 01603
Attention: Steven Cimalore
Re: 335,000 Warrants to Purchase 1,258,759 Shares of Common Stock
-------------------------------------------------------------
(CUSIP __________)
Reference is hereby made to the Warrant Agreement, dated as of March
31, 1998 (the "WARRANT AGREEMENT"), among American Mobile Satellite Corporation,
as issuer (the "HOLDINGS"), and State Street Bank and Trust Company, as Warrant
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Warrant Agreement.
______________, (the "TRANSFEROR") owns and proposes to transfer the
Warrant[s] or interest in such Warrant[s] specified in Annex A hereto, in the
amount of ___________ in such Warrant[s] or interests (the "TRANSFER"), to
__________ (the "TRANSFEREE"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
----------------------------------------------------------------------
144A GLOBAL WARRANT OR A DEFINITIVE WARRANT PURSUANT TO RULE 144A. The Transfer
- -----------------------------------------------------------------
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Warrant is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Warrant for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Warrant
and/or the Definitive Warrant and in the Warrant Agreement and the Securities
Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
----------------------------------------------------------------------
TEMPORARY REGULATION S GLOBAL WARRANT, THE REGULATION S GLOBAL WARRANT OR A
- ---------------------------------------------------------------------------
DEFINITIVE WARRANT PURSUANT TO REGULATION S. The Transfer is being effected
- -------------------------------------------
pursuant to and in accordance with Rule 903 or Rule
B-1
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act and, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and (iv) if
the proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Warrant Agreement, the
transferred beneficial interest or Definitive Warrant will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Warrant, the Temporary Regulation S Global Warrant
and/or the Definitive Warrant and in the Warrant Agreement and the Securities
Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
-------------------------------------------------------------------
INTEREST IN THE IAI GLOBAL WARRANT OR A DEFINITIVE WARRANT PURSUANT TO ANY
- --------------------------------------------------------------------------
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
- --------------------------------------------------------------------
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Warrants and Restricted
Definitive Warrants and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of any state of the United States,
and accordingly the Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to Holdings or a subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Warrant or Restricted Definitive Warrants and the requirements
of the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the Warrant Agreement and
(2) if such Transfer is in respect of ___________ of Warrants at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has
B-2
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Warrant Agreement, the transferred
beneficial interest or Definitive Warrant will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Warrant and/or the Definitive Warrants and in the Warrant Agreement and the
Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Warrant or of an Unrestricted Definitive Warrant.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Warrant
Agreement and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Warrant Agreement
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Warrant Agreement, the transferred
beneficial interest or Definitive Warrant will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Warrants, on Restricted Definitive Warrants and in the
Warrant Agreement.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Warrant Agreement and any applicable blue sky securities laws
of any state of the United States and (ii) the restrictions on transfer
contained in the Warrant Agreement and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Warrant Agreement, the transferred beneficial interest or Definitive Warrant
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Warrants, on
Restricted Definitive Warrants and in the Warrant Agreement.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Warrant Agreement and any applicable blue sky securities laws of any State
of the United States and (ii) the restrictions on transfer contained in the
Warrant Agreement and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Warrant Agreement, the transferred
beneficial interest or Definitive Warrant will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Warrants or Restricted Definitive Warrants and in the
Warrant Agreement.
B-3
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings.
--------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: ________ __, ____
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Warrant (CUSIP _________), or
(ii) [_] Regulation S Global Warrant (CUSIP _________), or
(iii) [_] IAI Global Warrant (CUSIP ________); or
(b) [_] a Restricted Definitive Warrant.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Warrant (CUSIP ________), or
(ii) [_] Regulation S Global Warrant (CUSIP ________), or
(iii) [_] IAI Global Warrant (CUSIP ________); or
(iv) [_] Unrestricted Global Warrant (CUSIP ________); or
(b) [_] a Restricted Definitive Warrant; or
(c) [_] an Unrestricted Definitive Warrant,
in accordance with the terms of the Warrant Agreement.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
American Mobile Satellite Corporation
10802 Parkridge Blvd.
Reston, Virginia 20191-5416
Attention: Randy S. Segal, Esq.
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Attention: Steven Cimalore
Re: 335,000 Warrants to Purchase 1,258,759 Shares of Common Stock
-------------------------------------------------------------
(CUSIP __________)
Reference is hereby made to the Warrant Agreement, dated as of
March 31, 1998 (the "WARRANT AGREEMENT"), among American Mobile Satellite
Corporation, as issuer (the "HOLDINGS"), and State Street Bank and Trust
Company, as Warrant Agent. Capitalized terms used but not defined herein shall
have the meanings given to them in the Warrant Agreement.
____________, (the "OWNER") owns and proposes to exchange the
Warrant[s] or interest in such Warrant[s] specified herein, in the amount of
____________ in such Warrant[s] or interests (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL WARRANT FOR UNRESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL WARRANT
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
-------------------------------------------------------------
GLOBAL WARRANT TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL WARRANT. In
- -----------------------------------------------------------------------
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Warrant for a beneficial interest in an Unrestricted Global Warrant in an
equal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Global Warrants and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii) the
restrictions on transfer contained in the Warrant Agreement and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Warrant is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
-------------------------------------------------------------
GLOBAL WARRANT TO UNRESTRICTED DEFINITIVE WARRANT. In connection with the
- -------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Warrant for
an Unrestricted Definitive Warrant, the Owner hereby certifies (i) the
Definitive Warrant is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to
C-1
the Restricted Global Warrants and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Warrant
Agreement and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Warrant is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
----------------------------------------------------------
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL WARRANT. In connection with the
- -----------------------------------------------------
Owner's Exchange of a Restricted Definitive Warrant for a beneficial interest in
an Unrestricted Global Warrant, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Warrants and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Warrant Agreement and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
----------------------------------------------------------
UNRESTRICTED DEFINITIVE WARRANT. In connection with the Owner's Exchange of a
- -------------------------------
Restricted Definitive Warrant for an Unrestricted Definitive Warrant, the Owner
hereby certifies (i) the Unrestricted Definitive Warrant is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted Definitive
Warrants and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Warrant Agreement and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Warrant is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL WARRANTS FOR RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL WARRANTS.
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
-------------------------------------------------------------
GLOBAL WARRANT TO RESTRICTED DEFINITIVE WARRANT. In connection with the
- -----------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Warrant for a
Restricted Definitive Warrant with an equal amount, the Owner hereby certifies
that the Restricted Definitive Warrant is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Warrant Agreement, the Restricted Definitive
Warrant issued will continue to be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Definitive
Warrant and in the Warrant Agreement and the Securities Act.
C-2
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
----------------------------------------------------------
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL WARRANT. In connection with the
- --------------------------------------------------
Exchange of the Owner's Restricted Definitive Warrant for a beneficial interest
in the [CHECK ONE] [_] 144A Global Warrant, [_] Regulation S Global Warrant,
[_] IAI Global Warrant with an equal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Warrants and pursuant
to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Warrant Agreement, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Warrant and in the Warrant Agreement and the
Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings.
----------------------------------
[Insert Name of Owner]
By:
-------------------------------
Name:
Title:
Dated: ________________, ____
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
American Mobile Satellite Corporation
10802 Parkridge Blvd.
Reston, Virginia 20191-5416
Attention: Randy S. Segal, Esq.
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Attention: Steven Cimalore
Re: 335,000 Warrants to Purchase 1,258,759 Shares of Common Stock
-------------------------------------------------------------
(CUSIP __________)
Reference is hereby made to the Warrant Agreement, dated as of March
31, 1998 (the "WARRANT AGREEMENT"), among American Mobile Satellite Corporation,
as issuer (the "HOLDINGS"), and State Street Bank and Trust Company, as Warrant
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Warrant Agreement.
In connection with our proposed purchase of ____________ amount of:
(a) [_] a beneficial interest in a Global Warrant, or
(b) [_] a Definitive Warrant,
we confirm that:
1. We understand that any subsequent transfer of the Warrants or any
interest therein is subject to certain restrictions and conditions set forth in
the Warrant Agreement and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Warrants or any interest therein except
in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Warrants have not
been registered under the Securities Act, and that the Warrants and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Warrants or any
interest therein, we will do so only (A) to Holdings or any subsidiary thereof,
(B) in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (c) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to Holdings a signed
letter substantially in the form of this letter and, if such transfer is in
respect of a __________ of Warrants, at the time of transfer of less than
$250,000, an
D-1
Opinion of Counsel in form reasonably acceptable to Holdings to the effect that
such transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Warrant or
beneficial interest in a Global Warrant from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Warrants or
beneficial interest therein, we will be required to furnish to you and Holdings
such certifications, legal opinions and other information as you and Holdings
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Warrants purchased by us
will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Warrants or beneficial interest therein
acquired by us must be effected through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Warrants, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Warrants or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and Holdings are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------------
[Insert Name of Accredited Investor]
By:
---------------------------------------
Name:
Title:
D-2