EXHIBIT 10.10
EXCEPT AS PROVIDED IN SECTION 8(b) HEREOF, THIS WARRANT MAY NOT BE TRANSFERRED.
THE SHARES OF COMMON STOCK ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT.
iPCS, INC.
For the purchase of
1,151,938 shares of
Common Stock
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
iPCS, INC.
(A Delaware Corporation)
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME, ON JULY 12, 2007.
iPCS, Inc., a Delaware corporation (the "Company") hereby certifies that
SPRINT SPECTRUM L.P., a Delaware limited partnership (together with its
permitted assigns, the "Registered Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company, at any time or from time to time
on or after July 12, 2001 and on or before July 12, 2007, at not later than 5:00
p.m. (Eastern Standard Time), 1,151,938 shares of Common Stock, $0.01 par value,
of the Company ("Common Stock"), at a purchase price of $4.95 per share. The
number of shares of Common Stock purchasable upon exercise of this Warrant, and
the purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Stock"
and the "Purchase Price", respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole or in
part, by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I duly executed by such Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, by bank or certified check in lawful money of
the United States, of the Purchase Price payable in respect of the number of
shares of Warrant Stock purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a) above.
At such time, the person or persons in whose name or names any certificates for
Warrant Stock shall be issuable upon such exercise as provided in subsection
1(c) below shall be deemed to have become the holder or holders of record of the
Warrant Stock represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in full or
in part, and in any event within ten (10) days thereafter, the Company at its
expense will cause to be issued in the name of, and delivered to, the Registered
Holder, or, subject to the terms and conditions hereof, as the Registered Holder
(upon payment by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a certificate or certificates for the number of full shares of
Warrant Stock to which such Registered Holder shall be entitled
upon such exercise plus, in lieu of any fractional shares to
which such Registered Holder would otherwise be entitled, cash in
an amount determined pursuant to Section 3 hereof, and
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate
on the face or faces thereof for the number of shares of Warrant
Stock equal (without giving effect to any adjustment therein) to
the number of such shares called for on the face of this Warrant
minus the number of such shares purchased by the Registered
Holder upon such exercise as provided in subsection 1(a) above.
2. Adjustments.
(a) If the outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Purchase Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Purchase Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Purchase Price, the
number of shares of Warrant Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercisable of this Warrant immediately prior
to such adjustment, multiplied by the Purchase Price in effect immediately prior
to such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(b) If there shall occur any capital reorganization or reclassification of
the Company's Common Stock (other than a change in par value or a subdivision or
combination as provided for in subsection 2(a) above), or any consolidation or
merger of the Company with or into another corporation, or a transfer of all or
substantially all of the assets of the Company, or the payment of a liquidating
distribution then, as part of any such reorganization, reclassification,
consolidation, merger, sale or liquidating distribution, lawful provision shall
be made so that the Registered Holder of this Warrant shall have the right
thereafter to receive upon
2
the exercise hereof (to the extent, if any, still exercisable) the kind and
amount of shares of stock or other securities or property which such Registered
Holder would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, as the case may be, such Registered Holder had held the number of
shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined by
the Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the Registered Holder of this Warrant such that the provisions set forth in
this Section 2 (including provisions with respect to adjustment of the Purchase
Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(c) In any case in which this Section 2 shall require that any adjustment
in the number of shares of Warrant Stock or other property for which this
Warrant may be exercised be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event issuing
to the Registered Holder the amount of Warrant Stock and other property, if any,
issuable upon exercise of this Warrant after such record date that is over and
above the Warrant Stock and other property, if any, issuable upon exercise of
this Warrant as in effect prior to such adjustment; provided that upon request
the Company shall deliver to the Registered Holder a due bill or other
appropriate instrument evidencing the Registered Holder's right to receive such
additional shares or property upon the occurrence of the event requiring such
adjustment.
(d) When any adjustment is required to be made in the Purchase Price, the
Company shall promptly mail to the Registered Holder a certificate setting forth
the Purchase Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Such certificate shall also set forth the
kind and amount of stock or other securities or property for which this Warrant
shall be exercisable following the occurrence of any of the events specified in
subsection 2(a) or 2(b) above.
3. Fractional Shares.
The Company shall not be required upon the exercise of this Warrant to
issue any fractional shares, but shall make an adjustment therefor in cash on
the basis of the mean between the low bid and high asked prices of the Warrant
Stock on the market or exchange on which the stock of the Company then trades or
the closing market price of the Warrant Stock on a national securities exchange
on the trading day immediately prior to the date of exercise, whichever is
applicable, or if neither is applicable, then on the basis of the then market
value of the Warrant Stock as shall be reasonably determined by the Board of
Directors of the Company.
4. Limitation on Sales; Registration.
(a) The Registered Holder, and each subsequent holder of this Warrant, if
any, acknowledges that this Warrant and the Warrant Stock have not been
registered under the
3
Securities Act of 1933, as now in force or hereafter amended, or any successor
legislation (the "Act"), and agrees not to sell, pledge, distribute, offer for
sale, transfer or otherwise dispose of this Warrant or any Warrant Stock issued
upon its exercise in the absence of (i) an effective registration statement
under the Act as to this Warrant or such Warrant Stock and registration or
qualification of this Warrant or such Warrant Stock under any applicable Blue
Sky or state securities law then in effect, or (ii) an opinion of counsel,
satisfactory to the Company and the Registered Holder, that such registration
and qualification are not required. Without limiting the generality of the
foregoing, unless the offering and sale of the Warrant Stock to be issued upon
the particular exercise of this Warrant shall have been effectively registered
under the Act, the Company shall be under no obligation to issue the shares
covered by such exercise unless and until the Registered Holder shall have
executed an investment letter in form and substance satisfactory to the Company,
including a warranty at the time of such exercise that it is acquiring such
shares for its own account, for investment and not with a view to, or for sale
in connection with, the distribution of any such shares, in which event the
Registered Holder shall be bound by the provisions of a legend to such effect on
the certificate(s) representing the Warrant Stock. In addition, without limiting
the generality of the foregoing, the Company may delay issuance of the Warrant
Stock until completion of any action or obtaining of any consent, which the
Company deems necessary under any applicable law (including without limitation
state securities or "blue sky" laws).
(b) Upon the exercise of this Warrant in full, if the Company is then
eligible to register Common Stock under the Act on Form S-3, the Company shall,
as soon as practicable thereafter but in no event later than 45 days following
such exercise, file a registration statement on Form S-3 covering the Warrant
Stock issuable upon such exercise (a "Sprint Registration Statement") and, after
such filing, the Company shall use reasonable efforts to cause such Sprint
Registration Statement to become effective and to maintain the effectiveness
thereof for a period of one (1) year, or until such earlier date as such Warrant
Stock may be transferred without registration under the Act; provided that (i)
the effectiveness of the Sprint Registration Statement may be terminated earlier
if and to the extent that all of the Warrant Stock shall have been disposed of
by the holder or holders thereof and (ii) the Company's obligation under this
Section 3(b) to file a Sprint Registration Statement as soon as practicable and
to use reasonable efforts to cause such Sprint Registration Statement to become
effective shall be suspended in the event and during such period as certain
circumstances exist (such circumstances being hereinafter referred to as a
"Suspension Event") which would make it impractical or inadvisable in the
Company's good faith opinion to file a Sprint Registration Statement, but such
suspension shall only continue until (y) such event is no longer continuing or
(z) ninety (90) days after the commencement of such suspension, whichever is
earlier. A Suspension Event shall include, but shall not be limited to, (1) an
underwritten primary offering by the Company if the Company is advised in
writing by the managing underwriter of such underwritten offering that, in its
good faith judgment, the sale of securities under a Sprint Registration
Statement would interfere with the successful marketing of the securities to be
offered under such primary offering; (2) pending negotiation relating to, or
existence of any other event, fact or circumstances which would require
disclosure by the Company in the Sprint Registration Statement of information
regarding the Company or its business, business plans, financial condition or
results of operations which
4
has not previously been disclosed by the Company in a report filed under the
Securities Exchange Act of 1934, as amended, or by public announcement; or (3)
if the holder or holders of Warrant Stock on whose behalf the Sprint
Registration Statement is being prepared fails to cooperate with the Company and
to furnish to the Company all information in connection with the preparation of
the Sprint Registration Statement as the Company may reasonably request.
(c) All fees and expenses incurred by the Company in connection with the
performance of its obligation to register the Warrant Stock pursuant to
subsection 3(b) shall be borne by the Company; provided that, in the event of
any underwritten offering of such Warrant Stock, all underwriting discounts and
selling commissions, if any, fees and expenses of the holder or holders thereof
or of its or their counsel, and transfer taxes applicable to the sale of such
Warrant Stock, shall be borne by such holder or holders.
(d) If applicable, the Company shall provide timely notice to the market
on which the stock of the Company then trades of its intent to issue Warrant
Stock to the Registered Holder upon the exercise of this Warrant, and shall
comply in full with any and all requirements of such market applicable to the
issuance, listing and trading of such shares of Warrant Stock subsequent to such
issuance.
(e) The Registered Holder agrees, and each other holder of Warrant Stock
agrees, if requested by the Company or the representative of the underwriters
underwriting an offering of Common Stock (or other securities of the Company)
from time to time, not to sell or otherwise transfer or dispose of any Warrant
Stock then held by the Registered Holder or such other holder during such period
of time following the effective date of any registration statement of the
Company (other than the Sprint Registration Statement) filed under the Act for
the period of time with respect to which a majority of the executive officers of
the Company agree not to sell shares of Common Stock (or other securities of the
Company). Such agreement shall be in writing in a form satisfactory to the
Company and such representative. The Company may impose stop-transfer
instructions with respect to the Warrant Stock subject to the foregoing
restriction until the end of such period.
5. Notices of Record Date, Etc.
In the event that:
(a) the Company shall set a record date for the purpose of entitling or
enabling the holders of its Common Stock (or other stock or securities
at the time deliverable upon the exercise of this Warrant) to receive
any dividend or other distribution (other than a dividend payable
solely in Common Stock or out of funds legally available therefor), or
to receive any right to subscribe for or purchase any shares of stock
of any class or any other securities, or to receive any other right,
or
(b) there shall occur any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company
5
with or into another corporation (other than a consolidation or merger
in which the Company is the surviving entity), or any transfer of all
or substantially all of the assets of the Company, or
(c) there shall occur any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, (ii) the effective date
of such reorganization, reclassification, consolidation, merger or transfer or
(iii) the date of such dissolution, liquidation or winding-up is to take place,
and also specifying, if applicable, the date and time as of which the holders of
record of Common Stock (or such other stock or securities at the time
deliverable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such organization, reclassification,
consolidation, merger, transfer, dissolution, liquidation or winding-up. Such
notice shall be mailed at least ten (10) days prior to the record date or
effective date for the event specified in such notice, provided that the failure
to so mail such notice shall affect the legality or validity of any such action.
6. Reservation of Stock.
The Company will at all times reserve and keep available, solely for
issuance and delivery upon the exercise of this Warrant, such shares of Warrant
Stock and other stock, securities and property, as from time to time shall be
issuable upon the exercise of this Warrant.
7. Replacement of Warrants.
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and (in the case of loss,
theft or destruction) upon delivery of an indemnity agreement (with surety if
reasonably required) in an amount reasonably satisfactory to the Company, or (in
the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
8. Transfers, Etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. The Registered Holder may
change its, his or her address as shown on the warrant register by written
notice to the Company requesting such change.
(b) This Warrant shall not be transferable by the Registered Holder and
shall be exercisable only by the Registered Holder, provided that this Warrant
may be transferred to, and may be exercisable by, any company that directly, or
indirectly through one or more
6
intermediaries, controls, is controlled by, or is under common control with, the
Registered Holder. Subject to the foregoing, this Warrant shall not be assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to execution, attachment or similar process without the
prior written consent of the Company. Any attempted transfer, assignment,
pledge, hypothecation or other disposition of this Warrant or of any rights
granted hereunder contrary to the provisions of this Section 8, or the levy of
any attachment or similar process upon this Warrant or such rights, shall be
null and void.
(c) Until any transfer of this Warrant is made in the warrant register,
the Company may treat the Registered Holder of this Warrant as the absolute
owner hereof for all purposes; provided, however, that if and when this Warrant
is properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
9. Mailing of Notices, Etc.
All notices and other communications from the Company to the Registered
Holder of this Warrant shall be mailed by first-class certified or registered
mail, postage prepaid, to the address furnished to the Company in writing by the
last Registered Holder of this Warrant who shall have furnished an address to
the Company in writing. All notices and other communications from the Registered
Holder of this Warrant or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or such other address as the Company shall so
notify the Registered Holder.
10. No Rights as Stockholder.
Until the exercise of this Warrant, the Registered Holder of this Warrant
shall not have or exercise any rights by virtue hereof as a stockholder of the
Company.
11. Change or Waiver.
Any term of this Warrant may be changed or waived only by an instrument in
writing signed by the party against which enforcement of the change or waiver is
sought.
12. Headings.
The headings in this Warrant are for purposes of reference only and shall
not limit or otherwise affect the meaning of any provision of this Warrant.
13. Governing Law.
This Warrant will be governed by and construed in accordance with the laws
of the State of Illinois.
7
iPCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Dated: July 12, 2000 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
8
EXHIBIT I
PURCHASE FORM
To: iPCS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The undersigned pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase ________________________ shares
of Common Stock (the "Common Stock") covered by such Warrant and herewith makes
payment of $__________, representing the full purchase price for such shares at
the price per share provided for in such Warrant.
The undersigned understands and acknowledges the terms and restrictions on
the right to transfer or dispose of the Common Stock set forth in Sections 4 and
7 of the attached Warrant, which the undersigned has carefully reviewed. The
undersigned consents to the placing of a legend on its certificate for the
Common Stock referring to such restrictions and the placing of stop transfer
orders until the Common Stock may be transferred in accordance with the terms of
such restrictions.
[REGISTERED HOLDER or its permitted assignee]
By: _________________________________________
Name: __________________________________
Title: _________________________________
Dated: ___________________________
9
