Exhibit 4.4
WARRANT AGREEMENT
IRIDIUM COMMUNICATIONS INC.
and
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Warrant Agent
_______________________________
WARRANT AGREEMENT
Dated as of September 29, 2009
WARRANT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. Appointment of Warrant
Agent
1
SECTION 2. Warrant
Certificates
1
SECTION 3. Execution of Warrant
Certificates
1
SECTION 4. Registration and
Countersignature
2
SECTION 5. Registration of
Transfers and Exchanges; Transfer Restrictions
2
SECTION 6. Terms of
Warrants
2
SECTION 7. Payment of
Taxes
6
SECTION 8. Mutilated or Missing
Warrant Certificates
6
SECTION 9. Reservation of Warrant
Shares
6
SECTION 10. Obtaining Stock
Exchange Listings; State Registration
7
SECTION 11. Adjustment of Number of
Warrant Shares
7
SECTION 12. Fractional
Interests
17
SECTION 13. Notices to Warrant
Holders
17
SECTION 14. Merger, Consolidation
or Change of Name of Warrant Agent
18
SECTION 15. Warrant
Agent
19
SECTION 16. Change of Warrant
Agent
22
SECTION 17. Notices to Company and
Warrant Agent
22
SECTION 18. Supplements and
Amendments
23
SECTION 19. Successors
24
SECTION 20. Termination
24
SECTION 21. Governing
Law
24
SECTION 22. Benefits of This
Agreement
24
i
SECTION 23. Counterparts
24
SECTION 24. Force
Majeure
24
Exhibit A
Form of Warrant Certificate
ii
This Warrant Agreement (this “
Agreement ”) is made as of September 29, 2009, by and
between Iridium Communications Inc., a Delaware corporation (the
“ Company ”) and American Stock Transfer &
Trust Company, a New York corporation (the “ Warrant
Agent ”).
WHEREAS , the Company and the Warrant Agent entered into that
certain Amended and Restated Warrant Agreement dated as of February
20, 2008 pursuant to which the Company issued warrants (the “
Current Warrants ”) to purchase one share of its
common stock, par value $0.001 per share (the “ Common
Stock ”); and
WHEREAS , the Company entered into warrant purchase and
exchange agreements with certain holders of Current Warrants,
pursuant to which the Company agreed to purchase Current Warrants
from certain holders thereof in consideration for, inter
alia , new warrants to purchase one share of Common Stock at an
exercise price of $11.50 per share (the “ Warrants
”). The shares of Common Stock issuable upon exercise
of the Warrants are referred to as the “ Warrant
Shares ”; and
WHEREAS , the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act,
in connection with the issuance, transfer, exchange and exercise of
Warrants 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. Appointment of
Warrant Agent . The Company hereby appoints the Warrant
Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the
Warrant Agent hereby accepts such appointment.
SECTION
2. Warrant
Certificates . The certificates evidencing the Warrants
(the “ Warrant Certificates ”) to be delivered
pursuant to this Agreement shall be in registered form only and
shall be substantially in the form set forth in Exhibit A
attached hereto.
SECTION
3. Execution of
Warrant Certificates . Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board or its
Chief Executive Officer or a Senior Vice President or its Treasurer
and by its Secretary or an Assistant Secretary. Each such
signature upon the Warrant Certificates may be in the form of a
facsimile signature of the present or any future Chairman of the
Board, President, Chief Executive Officer, Vice President,
Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Warrant Certificates and for that purpose the
Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Chief Executive
Officer, Vice President, Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of he or she shall
have ceased to hold such office.
In case any officer of the Company who
shall have signed any of the Warrant Certificates shall cease to be
such officer before the Warrant Certificates so signed shall have
been countersigned by the Warrant Agent, or disposed of by the
Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person
had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf
of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be
a proper officer of the Company to sign such Warrant Certificate,
although at the date of the execution of this Agreement any such
person was not such officer.
Warrant Certificates shall be dated the
date of countersignature by the Warrant Agent.
SECTION
4. Registration and
Countersignature . Warrant Certificates shall be
countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. The Warrant Agent shall,
upon written instructions of the Chairman of the Board, the
President or Chief Executive Officer, a Vice President, the
Treasurer or the Chief Financial Officer of the Company,
countersign, issue and deliver Warrants as provided in this
Agreement.
The Company and the Warrant Agent may
deem and treat the registered holder(s) of the Warrant Certificates
as the absolute owner(s) thereof (notwithstanding any notation of
ownership or other writing thereon made by anyone), for all
purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION
5. Registration of
Transfers and Exchanges; Transfer Restrictions . The
Warrant Agent shall from time to time, subject to the limitations
of this Section 5, register the transfer of any outstanding Warrant
Certificates upon the records to be maintained by it for that
purpose, upon surrender thereof duly endorsed or accompanied (if so
required by the Warrant Agent) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent,
duly executed by the registered holder or holders thereof or by the
duly appointed legal representative thereof or by a duly authorized
attorney. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee(s) and the
surrendered Warrant Certificate shall be cancelled by the Warrant
Agent. Cancelled Warrant Certificates shall thereafter be disposed
of by the Warrant Agent in its customary manner.
Subject to the terms of this Agreement,
Warrant Certificates may be exchanged at the option of the
holder(s) thereof, when surrendered to the Warrant Agent at its
principal corporate trust office, which is currently located at the
address listed in Section 17 hereof, for another Warrant
Certificate or other Warrant Certificates of like tenor and
representing in the aggregate a like number of Warrants. Any
holder desiring to exchange a Warrant Certificate shall deliver a
written request to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a
written instrument or instruments of transfer in form satisfactory
to the Warrant Agent, the Warrant Certificate or Certificates to be
so exchanged. Warrant Certificates surrendered for exchange shall
be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates shall then be disposed of by such Warrant Agent in its
customary manner.
The Warrant Agent is hereby authorized to
countersign, in accordance with the provisions of this Section 5
and of Section 4 hereof, the new Warrant Certificates required
pursuant to the provisions of this Section 5.
SECTION
6. Terms of
Warrants .
(a)
Exercise Price and Exercise
Period .
2
The initial exercise price per
share that Warrant Shares shall be purchasable upon the exercise of
Warrants (the “ Exercise Price ”) shall be
$11.50 per share, and each Warrant shall be initially exercisable
to purchase one share of Common Stock.
Subject to the terms of this Agreement
(including without limitation Section 6(e) below), each Warrant
holder shall have the right, which may be exercised commencing at
the opening of business on the first day of the applicable Warrant
Exercise Period set forth below and until 5:00 p.m., New York time,
on the last day of such Warrant Exercise Period, to receive from
the Company 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 then in
effect for such Warrant Shares or on a cashless basis pursuant to
Section 6(d), if applicable. No adjustments as to dividends
will be made upon exercise of the Warrants.
The “ Warrant Exercise
Period ” shall (x) commence (subject to Section 6(e)
below) on the date hereof, and (y) shall end on the earlier of: (i)
February 14, 2015, or (ii) the Business Day preceding the date on
which such Warrants are redeemed pursuant to Section 6(b) below or
expire pursuant to Section 6(f) below.
The “ Last Reported Sale
Price ” of the Common Stock on any date of determination
means:
(i)
the last reported sale price for the
regular trading session (without considering after hours or other
trading outside regular trading session hours) of the Common Stock
(regular way) on the NASDAQ Stock Market (“ Nasdaq
”) on that date,
(ii)
if the Common Stock is not listed for
trading on Nasdaq on that date, last reported sale price as
reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is so
listed,
(iii)
if the Common Stock is not so reported,
the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the OTC Bulletin Board, the
National Quotation Bureau or similar organization, or
(iv)
if the Common Stock is not so quoted, the
average of the mid-point of the last bid and ask prices for the
Common Stock from at least three nationally recognized
investment-banking firms that the Company selects for this
purpose.
Each Warrant not exercised or redeemed
prior to 5:00 p.m., New York time, on the last day of the Warrant
Exercise Period shall become void and all rights thereunder and all
rights in respect thereof under this Agreement shall cease as of
such time.
(b)
Redemption of Warrants
.
3
The Company may call the Warrants for
redemption, in whole and not in part, at a price of $.01 per
Warrant, upon not less than 30 days’ prior written notice of
redemption to each Warrant holder, at any time after such Warrants
have become exercisable pursuant to Section 6(a), if, and only
if, (i) the Last Reported Sale Price has equaled or exceeded $18.00
per share for any 20 trading days within a 30-trading day period
ending on the third Business Day prior to the notice of redemption
to Warrant holders and (ii) at all times between the date of such
notice of redemption and the redemption date a registration
statement is in effect covering the Warrant Shares issuable upon
exercise of the Warrants and a current prospectus relating to those
Warrant Shares is available.
Upon a call for redemption of Warrants by
the Company, the Company shall have the right to require all
holders of Warrants subject to redemption who exercise such
Warrants after the Company’s call for redemption to do so on
a cashless basis in accordance with the procedures set forth in
Section 6(d).
(c)
Exercise Procedure
.
A Warrant may be exercised upon surrender
to the Company at the principal stock transfer office of the
Warrant Agent, which is currently located at the address listed in
Section 17 hereof, of the certificate or certificates evidencing
the Warrants to be exercised with the form of election to purchase
on the reverse thereof duly filled in and signed and such other
documentation as the Warrant Agent may reasonably request, and upon
payment to the Warrant Agent for the account of the Company of the
Exercise Price (adjusted as herein provided if applicable) or on a
cashless basis pursuant to Section 6(d), if applicable, for
the number of Warrant Shares in respect of which such Warrants are
then exercised. Payment of the aggregate Exercise Price (unless on
a cashless basis pursuant to Section 6(d)) shall be made by
certified or official bank check payable to the order of the
Company in New York Clearing House Funds, or the equivalent
thereof. In no event will any Warrants be settled on a net
cash basis.
Subject to the provisions of Section 7
hereof, upon such surrender of Warrants and payment of the Exercise
Price or on a cashless basis pursuant to Section 6(d), if
applicable, the Company shall issue and cause to be delivered with
all reasonable dispatch to and in such name or names as the Warrant
holder may designate, a certificate or certificates for the number
of full Warrant Shares issuable upon the exercise of such Warrants.
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 or on a cashless basis pursuant to Section 6(d), if
applicable.
The Warrants shall be exercisable, at the
election of the holders thereof, either in full or from time to
time in part and, in the event that a certificate evidencing
Warrants is exercised in respect of fewer than all of the Warrant
Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the
remaining Warrant or Warrants will be issued, and the Warrant Agent
is hereby irrevocably authorized to countersign and to deliver the
required new Warrant Certificate or Certificates pursuant to the
provisions of this Section 6 and of Section 4 hereof, and the
Company, whenever required by the Warrant Agent, shall supply the
Warrant Agent with Warrant Certificates duly executed on behalf of
the
4
Company for such purpose. The
Warrant Agent may assume that any Warrant presented for exercise is
permitted to be so exercised under applicable law and shall have no
liability for acting in reliance on such assumption.
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 its customary manner. The Warrant
Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies
received by the Warrant Agent for the purchase of the Warrant
Shares through the exercise of such Warrants.
The Warrant Agent shall keep copies of
this Agreement and any notices given or received hereunder
available for inspection by the holders with reasonable prior
written notice during normal business hours at its office.
The Company shall supply the Warrant Agent from time to time
with such numbers of copies of this Agreement as the Warrant Agent
may request.
(d)
Cashless Exercise
.
(i)
Upon a call for redemption of Warrants on
a cashless basis by the Company pursuant to Section 6(b) (the
“ Cashless Exercise Demand ”), all holders of
Warrants subject to redemption who exercise such Warrants shall do
so on a cashless basis.
(ii)
If the Company makes a Cashless Exercise
Demand with respect to the Warrants subject to redemption that the
holders thereof have elected to exercise after the Company’s
call for redemption, then upon surrender of such Warrants in
accordance with Section 6(c), the Company shall issue and cause to
be delivered with all reasonable dispatch to and in such name or
names as such Warrant holder may designate, a certificate or
certificates for the number of full Warrant Shares to be issued
upon such cashless exercise, computed by using the following
formula:
X =
The Warrant Shares to be issued in
connection with such cashless exercise to the holder of the
Warrants being exercised.
Y =
The number of Warrant Shares underlying
the Warrants being exercised.
A =
The value of one Warrant as of the date
of the exercise, which shall be determined by using the following
formula:
A = B - the Exercise Price
B =
The Fair Market Value of a share of
Common Stock.
For purposes of this Section 6(d), the
“ Fair Market Value ” of a share of Common Stock
shall mean the average of the Last Reported Sale Prices for the ten
trading days ending on the third
5
trading day prior to the date on which
the notice of redemption is sent to the holders of the Warrants.
(iii)
If the Company makes a Cashless Exercise
Demand, the notice of redemption shall contain the information
necessary to calculate the number of Warrant Shares to be received
by Warrant holders upon exercise of the Warrants, including the
Fair Market Value in such case.
(e)
Registration Requirement
. Notwithstanding anything else in
this Section 6, no Warrants may be exercised unless at the time of
exercise (i) a registration statement covering the Warrant Shares
to be issued upon exercise is effective under the Act and (ii) a
prospectus thereunder relating to the Warrant Shares is current.
The Company shall use its best efforts to have a registration
statement in effect covering Warrant Shares issuable upon exercise
of the Warrants from the date the Warrants become exercisable but
in no event later than 30 Business Days from the date hereof and to
maintain a current prospectus relating to those Warrant Shares
until the Warrants expire or are redeemed. In the event that,
at the end of the Warrant Exercise Period, a registration statement
covering the Warrant Shares to be issued upon exercise is not
effective under the Act, all the rights of holders hereunder shall
terminate and all of the Warrants shall expire unexercised and
worthless. In no event shall the Warrants be settled on a net
cash basis nor shall the Company be required to issue unregistered
shares upon the exercise of any Warrant.
SECTION
7. Payment of
Taxes . The Company will pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided , however , that the
Company 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 the
Company 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 the Company the amount of such
tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION
8. Mutilated or
Missing Warrant Certificates . In case any of the Warrant
Certificates shall be mutilated, lost, stolen or destroyed, the
Company shall issue and the Warrant Agent shall countersign, in
exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and substitution for
the Warrant Certificate lost, stolen or destroyed, a new Warrant
Certificate of like tenor and representing an equivalent number of
Warrants, but only upon receipt of evidence satisfactory to the
Company and the Warrant Agent of such loss, theft or destruction of
such Warrant Certificate and indemnity, also satisfactory to the
Company and the Warrant Agent. Applicants for such new
Warrant Certificates must pay such reasonable charges as the
Company may prescribe.
SECTION
9. Reservation of
Warrant Shares . The Company 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
6
upon the exercise of all outstanding
Warrants. The Warrant Agent shall have no duty to verify
availability of such shares set aside by the Company.
The Company or, if appointed, the
transfer agent for the Common Stock (the “Transfer
Agent”) and every subsequent transfer agent for any shares of
the Common Stock issuable upon the exercise of any of the Warrants
will be irrevocably authorized and directed at all times to reserve
such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on
file with the Transfer Agent and with every subsequent transfer
agent for any shares of the Common Stock issuable upon the exercise
of 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. The
Company will supply such Transfer Agent with duly executed
certificates for such purposes. The Company will furnish such
Transfer Agent a copy of all notices of adjustments and
certificates related thereto, transmitted to each holder pursuant
to Section 13 hereof.
Before taking any action which would
cause an adjustment pursuant to Section 11 hereof to reduce the
Exercise Price below the then par value (if any) of the Warrant
Shares, the Company will take any commercially reasonable corporate
action which may, in the opinion of its counsel (which may be
counsel employed by the Company), be necessary in order that the
Company may validly and legally issue fully paid and nonassessable
Warrant Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant
Shares which may be issued upon exercise of Warrants will, upon
payment of the Exercise Price therefor or on a cashless basis
pursuant to Section 6(d), if applicable, and 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
10. Obtaining Stock
Exchange Listings; State Registration . The Company will
from time to time take all commercially reasonable actions 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. To the extent that the Common Stock is not listed on
a national securities exchange or there is no exemption from state
“blue sky” securities laws for the issuance of the
Warrant Shares, the Company will take all commercially reasonable
actions which may be necessary so that the Warrant Shares are
registered in all states in which the holders of the Warrants
reside.
SECTION
11. Adjustment of
Number of Warrant Shares . The number of Warrant Shares
issuable upon the exercise of each Warrant is subject to adjustment
from time to time upon the occurrence of the events enumerated in
this Section 11. For purposes of this Section 11,
“Common Stock” means shares now or hereafter authorized
of any class of common stock of the Company and any other stock of
the Company, 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 the
Company without limit as to per share amount.
7
(a)
Adjustment for Change in Capital
Stock .
If the Company:
(1)
pays a dividend or makes a distribution
on its Common Stock in either case in shares of its Common
Stock;
(2)
subdivides its outstanding shares of
Common Stock into a greater number of shares;
(3)
combines its outstanding shares of Common
Stock into a smaller number of shares;
(4)
makes a distribution on its Common Stock
in shares of its capital stock other than Common Stock;
or
(5)
issues by reclassification of its Common
Stock any shares of its capital stock,
then the number of shares of Common Stock
issuable upon exercise of each Warrant immediately prior to such
action shall be proportionately adjusted so that the holder of any
Warrant thereafter exercised shall receive the aggregate number and
kind of shares of capital stock of the Company 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.
Such adjustment shall be made
successively whenever any event listed above shall
occur.
(b)
Adjustment for Rights Issue
.
If the Company distributes any rights,
options or warrants to all holders of its Common Stock entitling
them to purchase shares of Common Stock at a price per share less
than the Last Reported Sale Price per share on the Business Day
immediately preceding the ex-dividend date for such distribution of
rights, options or warrants, the number of shares of Common Stock
issuable upon exercise of each Warrant shall be adjusted in
accordance with the formula:
