Exhibit 10(k)
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER ANY FEDERAL OR STATE SECURITIES LAWS. THIS
WARRANT HAS BEEN ISSUED UNDER EXEMPTIONS THAT DEPEND, IN PART, ON THE INTENT OF
THE HOLDER HEREOF NOT TO SELL OR TRANSFER THIS WARRANT OR SUCH SHARES IN ANY
MANNER NOT PERMITTED BY SUCH LAWS. THIS WARRANT AND SUCH SHARES THEREFORE MAY
NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
HEREIN.
INTER(bullet)ACT SYSTEMS, INCORPORATED
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
FOR VALUE RECEIVED, including the sum of $10.00, Inter(bullet)Act
Systems, Incorporated, a North Carolina corporation (the "Company"), hereby
grants Vanguard Cellular Operating Corp., a North Carolina corporation, or its
registered assigns, the right to purchase Nine Hundred Thousand One Hundred
Thirteen (900,113) shares (such number of shares being subject to adjustment as
provided hereinafter) of the validly authorized and issued, fully paid and
nonassessable shares of common stock of the Company, no par value per share (the
"Common Stock"), at a price per share equal to the Exercise Price, as defined in
Section 2 below, upon compliance with and subject to the following terms and
conditions:
1. Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in part from time to time, on or before the expiration date set forth
in Section 3 below by surrendering this Warrant, or the applicable portion
hereof, with a subscription form substantially in the form attached hereto duly
executed, at the offices of the Company in Norwalk, Connecticut, and by paying
in full the Exercise Price, in immediately available funds or as otherwise
hereinafter provided, for the number of shares of Common Stock as to which this
Warrant or applicable portion hereof is exercised. No fractional shares shall be
issued upon the exercise of this Warrant and, instead, any fractional shares
created by exercise hereunder shall be purchased by the Company at the rate of
the Exercise Price per share then in effect. In lieu of payment of the Exercise
Price, the registered holder may surrender all or any portion of the unexercised
Warrant and receive from the Company in exchange therefor that number of shares
of Common Stock equal to the (i) excess of (A) the Fair Market Value of one (1)
share of Common Stock at the time of exercise over (B) the Exercise Price per
share, multiplied by (ii) the number of shares of Common Stock with respect to
which the Warrant is being surrendered. For purposes of this Section, "Fair
Market Value" shall mean as of a given date, the average of the closing sales
prices per share of the Company's Common Stock, as reported on the national
securities exchange on which the Common Stock is principally traded for the ten
business days immediately preceding the day on which the
Common Stock is to be valued. For purposes of this section, the term "national
securities exchange" shall include the National Association of Securities
Dealers Automated Quotation System. If at the time the determination of Fair
Market Value is made the Common Stock is not admitted to trading on a national
securities exchange for which sales prices are regularly reported, Fair Market
Value shall be determined by agreement between the Company and the registered
holder, acting through their independent directors or independent authorized
persons. In the event that the Company and the registered holder cannot agree on
the Fair Market Value, such value shall be determined by a national or regional
investment banking firm mutually selected by the Company and the registered
holder. In the event that the Company and the registered holder cannot mutually
agree on one investment banking firm, or if the firm so appointed declines or
fails to serve, then the registered holder and the Company shall each choose one
such investment banking firm and the respective firms so chosen shall appoint
another national or regional investment banking firm. The investment banking
firm so selected shall determine Fair Market Value. The fees and expenses of the
investment banking firm or firms shall be paid by the Company. The Company and
the registered holder agree to be bound by the determination of the investment
banking firm as to Fair Market Value; provided, however, that nothing herein
shall prevent the registered holder, in its sole discretion, from withdrawing
its exercise of the Warrant if the registered holder and the Company cannot
mutually agree on the Fair Market Value or if the registered holder does not
agree with the Fair Market Value determination of the investment banking firm
(in which event one-half of the fees and expenses of the investment banking firm
shall be paid by the registered holder).
2. Exercise Price. The Exercise Price shall be Twenty-Three and 50/100
Dollars ($23.50), subject to adjustment as provided in Section 4 below.
3. Expiration of Warrant. This Warrant shall expire and all rights
hereunder shall cease on May 5, 2005.
4. Adjustment of Number of Shares. The number of shares of Common Stock
for which this Warrant may be exercised and the Exercise Price per share shall
be adjusted in amount and number in accordance with the following:
(a) If the Company shall declare and pay on shares of Common
Stock a dividend payable in shares of Common Stock or shall split the
then outstanding shares of Common Stock into a greater number of
shares, the number of shares of Common Stock for which this Warrant may
be exercised, as in effect at the time of taking of a record for such
dividend or at the time of such stock split, shall be proportionately
increased and the Exercise Price per share shall be proportionately
decreased. Conversely, if at any time the Company shall contract or
reduce the number of outstanding shares of Common Stock by combining
such shares into a smaller number of shares, the number of shares of
Common Stock for which this Warrant may be
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exercised at the time of such action shall be proportionately decreased
as of such time and the Exercise Price per share shall be
proportionately increased.
(b) In the case of (i) any reclassification or changes of the
Common Stock other than as provided above, or (ii) a consolidation,
merger, share exchange or combination involving the Company or a sale
or conveyance to another corporation of the property and assets of the
Company as an entirety or substantially as an entirety, in each case as
a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property assets (including cash) with
respect to or in exchange for such Common Stock, the registered holder
of this Warrant will be entitled thereafter to receive, upon exercise
thereof, the kind and amount of shares of stock, other securities or
other property or assets which such registered holder would have owned
or been entitled to receive upon such reclassification, change,
consolidation, merger, share exchange, combination, sale or conveyance
had this Warrant been exercised immediately prior thereto.
5. Notice of Adjustments. Within five (5) days after any adjustment in
the number of shares of Common Stock purchasable upon the exercise of this
Warrant or in the Exercise Price pursuant to Section 4 above, the Company shall
give written notice thereof to the registered holder. Such notice shall state
the increased or decreased number of shares purchasable upon the exercise of
this Warrant and the new Exercise Price, setting forth in detail the method of
calculation.
6. Partial Exercise of Warrant. In the event of any partial exercise of
this Warrant, the Company shall return to the registered holder this Warrant,
which shall have noted thereon the date of partial exercise and the number of
shares of Common Stock issued upon the partial exercise thereof. After a partial
exercise of this Warrant, the number of shares of Common Stock for which the
remaining portion of this Warrant may be exercised shall be equal to the
Applicable Percentage less the number of shares (as adjusted if necessary to be
consistent with Section 4 above) previously issued upon partial exercises of
this Warrant.
7. Reservation of Shares. The Company shall at all times reserve and
keep available a number of its authorized but unissued shares of its Common
Stock sufficient to permit the exercise in full of this Warrant.
8. Sale of Warrant or Shares. Neither this Warrant nor the shares of
Common Stock issuable upon exercise hereof have been registered under the
Securities Act of 1933, as amended, or under the securities laws of any state.
Neither this Warrant nor such shares, when issued, may be sold, transferred,
pledged or hypothecated in the absence of an effective registration statement
for this Warrant, or the shares of Common Stock, as the case may be, under the
Securities Act of 1933, as amended, and such registration or qualification as
may be necessary under the securities laws of any state, or an opinion of
counsel satisfactory to the Company that such registration or qualification is
not required.
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9. Shareholders' Agreement. The holder understands and agrees that the
shares of Common Stock issuable upon exercise of this Warrant shall also be
subject to the restrictions on transfer and other provisions of that certain
Shareholders' Agreement dated as of April 16, 1993 among the Company and all its
shareholders, as amended by Amendment No. 1 to Shareholders' Agreement dated as
of June 17, 1994 (as amended and as may be further amended with the consent of
the registered holder, the "Shareholders' Agreement") if in effect at the time
of exercise. As a condition to the exercise of this Warrant, the holder agrees
that the holder will become a party to the Shareholders' Agreement by executing
a Joinder Agreement or other appropriate document.
10. Legends. The certificate or certificates evidencing all or any of
the shares of Common Stock issued upon exercise of this Warrant shall bear the
following legend:
"The Shares evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended, or under the securities
laws of any state. The shares may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement
under the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of any
state, or any opinion of counsel satisfactory to the Company that such
registration or qualification is not required."
Such certificate or certificates shall also bear any legend required by
the Shareholders' Agreement.
11. Successor and Assigns. The terms of this Warrant shall be binding
upon and shall enure to the benefit of any successors or assigns of the Company
and of the holder or holders hereof and of the Common Stock issued or issuable
upon the exercise hereof.
12. Transfer of Warrant. This Warrant shall be registered on the books
of the Company, which shall be kept by it at its principal office for that
purpose and shall be transferable only on said books by the registered holder
hereof in person or by such holder's duly authorized attorney upon surrender of
this Warrant properly endorsed, and only in compliance with the foregoing
provisions of this Warrant. Except as otherwise provided herein, and subject to
applicable securities laws, this Warrant and all rights hereunder are
transferrable in whole or in part by the registered holder hereof in person or
by the registered holder's duly authorized attorney on the books of the Company
upon surrender of this Warrant, or the applicable portion hereof, with a
transfer form substantially in the form attached hereto duly executed, at the
offices of the Company in Norwalk, Connecticut. The Company may deem and treat
the registered holder of this Warrant at any time as the absolute owner hereof
for all purposes and shall not be affected by any notices to the contrary.
13. Notices. Notices under this Warrant shall be in writing and shall be
deemed to have been duly given (i) when personally delivered, (ii) when
forwarded by Federal Express,
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Airborne, or another private carrier which maintains records showing delivery
information, (iii) when sent via facsimile but only if a written or facsimile
acknowledgment of receipt is received by the sending party, or (iv) when placed
in the United States Mail and forwarded by registered or certified mail, return
receipt requested, postage prepaid, addressed to the party to whom such notice
is being given and, with respect to the Company, addressed to the Company's
principal office, and with respect to the registered holder of the Warrant,
addressed to the address of such holder as maintained on the records of the
Company, or to such other address as may be furnished in writing to the parties.
14. Governing Law. This Warrant shall be governed in accordance with the
laws of the State of North Carolina without taking into account conflict of law
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued
and executed in its corporate name by its President and its corporate seal to be
affixed hereto and attested by its Secretary or Assistant Secretary.
DATED: August 2, 1996 INTER(bullet)ACT SYSTEMS, INCORPORATED
ATTEST:
By:
Secretary President
(Corporate Seal)
NOTE: This Warrant has been issued as an amendment and restatement of that
certain common stock purchase warrant dated August 28, 1995 initially
exercisable for 401,027 shares, as adjusted from time to time as stated therein.
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Exercise Form for
Common Stock Purchase Warrant
INTER(bullet)ACT SYSTEMS, INCORPORATED
The undersigned hereby irrevocably subscribes for the shares of Common
Stock of Inter(bullet)Act Systems, Incorporated indicated below, upon the terms
and conditions of the attached Warrant.
No. of Shares: ________________________________
Exercise Price per share:
$______________________________________________
Subscriber's Name and Address:
(Please print) ________________________________
_______________________________________________
_______________________________________________
Subscriber's Telephone Number: ( )
___________________________________
Subscriber's Signature: ___________________________________________
(if individual)
Subscriber's Signature: ___________________________________________
(if entity) (Name of Entity)
By: ________________________________________________
(Signature of Authorized Person)
________________________________________________
(Title of Authorized Person)
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Transfer Form for
Common Stock Purchase Warrant
INTER(bullet)ACT SYSTEMS, INCORPORATED
The undersigned registered holder of the attached Warrant hereby
irrevocable transfers the following portion of the Warrant to purchase shares of
Common Stock of Inter(bullet)Act Systems, Incorporated, which transfer is
subject to the terms and conditions described in the Warrant.
Date of Transfer: _____________________________________________________
Number of Shares Exercisable under
Warrant as of Date of Transfer ___________________________________
Portion of Warrant Transferred:
Expressed as fraction or percentage ________________________________
Expressed as number of shares ______________________________________
Transferee's Name and Address: _______________________________________
(Please Print) _______________________________________
_______________________________________
_______________________________________
Transferee's Telephone Number: ( )
______________________________________
Transferor's Signature: _____________________________________________
(if individual)
Transferor's Signature: _____________________________________________
(if entity) (Name of Entity)
By: ________________________________
(Signature of Authorized Person)
________________________________
(Title of Authorized Person)
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