Exhibit 4.1
NEITHER THESE SECURITIES NOR THE SECURITIES FOR
WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
GLOBALSTAR, INC
.
WARRANT
Dated: June 19,
2009
Globalstar, Inc., a Delaware
corporation (the “ Company ”), hereby certifies
that, for value received, Thermo Funding Company LLC or its
registered assigns (the “ Holder ”), is entitled
to purchase from the Company up to a number of shares of common
stock, $0.0001 par value per share (the “ Common Stock
”), of the Company (each such share, a “ Warrant
Share ” and all such shares, the “ Warrant
Shares ”) calculated as provided below at an exercise
price equal to $0.01 per share (as adjusted from time to time as
provided in Section 9 , the “Exercise
Price”), subject to the limitations set forth in
Section 11, at any time and from on or after
stockholder approval of the Loan Agreement is obtained in
accordance with The Nasdaq Stock Market Listing Rules and
rules promulgated under the Securities Exchange Act of 1934
(the “ Initial Exercise Date ”) and through and
including June 19, 2014 (the “ Expiration Date
”), and subject to the following terms and conditions.
This Warrant (this “ Warrant ”) is issued
pursuant to the Contingent Equity Agreement, dated as of
June 19, 2009 by and between the Company and Thermo Funding
Company LLC (the “ Contingent Equity Agreement
”). Subject to Section 9 , the number of
Warrant Shares shall be 4,379,562.
1.
Definitions
. In
addition to the terms defined elsewhere in this Warrant,
capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Contingent Equity
Agreement.
2.
Registration
of Warrant . The Company shall
register this Warrant, upon records to be maintained by the Company
for that purpose (the “ Warrant Register ”), in the name of the
record Holder hereof from time to time. The Company may deem
and treat the registered Holder of record of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent
actual notice to the contrary.
3.
Registration
of Transfers . The Company shall
register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. Upon any such
registration of transfer, a new warrant to purchase Common Stock,
in substantially the form of this Warrant (any such new warrant, a
“ New Warrant
”),
evidencing
the portion of this Warrant
so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so
transferred, if any, shall be issued to the transferring
Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance by such transferee of all of
the rights and obligations of a holder of a Warrant.
4.
Exercise and
Duration of Warrants .
(a)
This Warrant
shall be exercisable by the registered Holder at any time and from
time to time on or after the Initial Exercise Date and including
the Expiration Date. At 6:30 P.M., New York City time on
the Expiration Date, the portion of this Warrant not exercised
prior thereto shall be and become void and of no value.
(b)
A Holder may
exercise this Warrant by delivering to the Company (i) an
exercise notice, in the form attached hereto (the “
Exercise Notice ”), appropriately
completed and duly signed, and (ii) payment in cash of the
Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised, and the date such items are delivered
to the Company (as determined in accordance with the notice
provisions hereof) is an “Exercise Date.” The
Holder shall not be required to deliver the original Warrant in
order to affect an exercise hereunder. Execution and delivery
of the Exercise Notice shall have the same effect as cancellation
of the original Warrant and issuance of a New Warrant evidencing
the right to purchase the remaining number of Warrant
Shares.
5.
Delivery of
Warrant Shares .
(a)
Upon exercise of
this Warrant, the Company shall promptly (but in no event later
than three trading days after the Exercise Date) issue or cause to
be issued and cause to be delivered to or upon the written order of
the Holder and in such name or names as the Holder may designate, a
certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends unless a registration statement
covering the resale of the Warrant Shares and naming the Holder as
a selling stockholder thereunder is not then effective or the
Warrant Shares are not freely transferable without volume
restrictions pursuant to Rule 144 under the Securities
Act. The Holder, or any person or entity (“
Person ”) so designated by
the Holder to receive Warrant Shares, shall be deemed to have
become the holder of record of such Warrant Shares as of the
Exercise Date. The Company shall, upon request of the Holder,
use its best efforts to deliver Warrant Shares hereunder
electronically through The Depository Trust Company or another
established clearing corporation performing similar
functions.
(b)
This Warrant is
exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of
this Warrant following one or more partial exercises, the Company
shall issue or cause to be issued, at its expense, a New Warrant
evidencing the right to purchase the remaining number of Warrant
Shares.
(c)
The
Company’s obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the
same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged
breach
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by the Holder or any other
Person of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other Person, and
irrespective of any other circumstance which might otherwise limit
such obligation of the Company to the Holder in connection with the
issuance of Warrant Shares. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of
this Warrant as required pursuant to the terms
hereof.
6.
Charges, Taxes
and Expenses . Issuance and
delivery of certificates for shares of Common Stock upon exercise
of this Warrant shall be made without charge to the Holder for any
issue or transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company; provided, however, that the Company shall not be required
to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares
or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
7.
Replacement of
Warrant . If this Warrant is
mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this
Warrant, a New Warrant, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable bond or indemnity, if
requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe.
8.
Reservation of
Warrant Shares . The Company covenants
that it will at all times reserve and keep available out of the
aggregate of its authorized but unissued and otherwise unreserved
Common Stock, solely for the purpose of enabling it to issue
Warrant Shares upon exercise of this Warrant as herein provided,
the number of Warrant Shares which are then issuable and
deliverable upon the exercise of this entire Warrant, free from
preemptive rights or any other contingent purchase rights of
persons other than the Holder (after giving effect to the
adjustments and restrictions of Section 9 , if any).
The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable.
The Company will take all such action as may be necessary to assure
that such shares of Common Stock may be issued as provided herein
without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation
system upon which the Common Stock may be listed.
9.
Certain
Adjustments . The Exercise Price
and number of Warrant Shares issuable upon exercise of this Warrant
are subject to adjustment from time to time as set forth in this
Section 9 .
(a)
Stock
Dividends and Splits . If the Company, at
any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a
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distribution on any class of
capital stock that is payable in shares of Common Stock other than
dividends or other distributions payable in respect of any series
of the Company’s preferred stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares,
or (iii) combines outstanding shares of Common Stock into a
smaller number of shares, then in each such case the Exercise Price
shall be multiplied by a fraction of which the
numerator
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