SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a)
(AMENDMENT NO. 1)*
CONVERGENCE COMMUNICATIONS, INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
None
----------------
(CUSIP Number)
Michael E. Cahill, Esq.
Managing Director & General Counsel
The TCW Group, Inc.
865 South Figueroa Street, Ste. 1800
Los Angeles, California 90017
(213) 244-0000
- -----------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 16, 1999
- -----------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box. |_|
NOTE: schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 28 Pages)
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page. The information
required on the remainder of this cover page shall not be deemed to be
"filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE TCW GROUP, INC.
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
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3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ROBERT A. DAY
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN, HC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW INVESTMENT MANAGEMENT COMPANY
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO, IA
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW ADVISORS, INC.
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO, IA
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW PRIVATE EQUITY HOLDINGS CORP.
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BAEZA & CO., L.L.C.
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MARIO L. BAEZA
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW/LATIN AMERICA MANAGEMENT PARTNERS, LLC
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW/LATIN AMERICA PRIVATE EQUITY PARTNERS, L.P.
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO, AF
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW/LATIN AMERICA PARTNERS, LLC
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) | |
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. NONE
- -----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TCW/CCI HOLDING LLC
- -----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) | |
(b) |X|
- -----------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- -----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
- -----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -----------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BY 4,666,666
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,666,666
- -----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,666,666 (See Item 5)
- -----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |X|
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.45% (See Item 5)
- -----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- -----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
This Amendment No. 1 is filed on behalf of
(1) The TCW Group, Inc., a Nevada corporation ("TCWG");
(2) Robert A. Day, an individual;
(3) TCW Investment Management Company, a California corporation
and wholly-owned subsidiary of TCWG ("TIMCO");
(4) TCW Advisors, Inc., a New York corporation and wholly-owned
subsidiary of TIMCO ("TCW Advisors");
(5) TCW Private Equity Holdings Corp., a New York corporation
and wholly owned subsidiary of TCW Advisors ("TCW PEH");
(6) Baeza & Co., L.L.C., a Delaware limited liability company
wholly owned by Mario L. Baeza ("Baeza & Co.");
(7) Mario L. Baeza, an individual;
(8) TCW/Latin America Partners, L.L.C., a Delaware limited
liability company, the two members of which are TCW PEH and
Baeza & Co. ("TCW/LAP");
(9) TCW/Latin America Management Partners, L.L.C., a Delaware
limited liability company, the managing member of which is
TCW/LAP ("TCW/LAMP");
(10) TCW/Latin America Private Equity Partners, L.P., a Delaware
limited partnership of which TCW/LAMP is the general
partner, acting through TCW/LAP ("TCW/LAPEP");
(11) TCW/CCI Holding LLC, a Delaware limited liability company,
wholly owned by TCW/LAPEP ("TCW/CCI").
TCWG, Robert Day, TIMCO, TCW Advisors and TCW PEH are referred to herein as
the "TCW Related Entities". The TCW Related Entities and Baeza & Co.,
TCW/LAP, TCW/LAMP, TCW/LAPEP and TCW/CCI are hereinafter collectively
referred to as the "Reporting Persons". The Amendment No. 1 filed on behalf
of the Reporting Persons amends the Statement on Schedule 13D, dated
October 28, 1999 (the "Schedule 13D") with respect to the Common Stock, par
value $0.001 per share (the "Common Stock") of Convergence Communications,
Inc., a Nevada corporation (the "Issuer"). Capitalized terms used but not
defined herein shall have the meanings ascribed thereto in the Schedule
13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is hereby supplemented as follows:
On November 16, 1999 the Issuer sold 1,333,333 shares of the Issuer's
Series C Convertible Preferred Stock, par value $0.001 per share (the
"Series C Preferred Stock") to TCW/CCI at a purchase price of $7.50 per
share for an aggregate amount of $10,000,000 in cash. Substantially all the
funds for the acquisition of such Series C Preferred Stock were obtained
from the limited partners of TCW/LAPEP.
ITEM 5. INTEREST AND SECURITIES OF THE ISSUER
Item 5 is hereby supplemented as follows:
(a) As of the date of this Amendment No. 1 to the Schedule 13D,
TCW/CCI holds 3,333,333 shares of Series C Preferred Stock, a currently
exercisable Option to purchase 1,333,333 shares of Series C Preferred Stock
(the "Option") and no shares of Common Stock. The Series C Preferred Stock
votes on a one-for-one basis with the Common Stock and is convertible at
the option of the holder on a one-for-one basis (subject to certain
anti-dilution adjustments) into shares of Common Stock, and is subject to
mandatory conversion on the same basis upon the occurrence of either of the
following: (i) all the parties to the Shareholders Agreement (as defined in
Item 6, below), acting together, transfer their Issuer securities for cash
or publicly traded securities, or (ii) there occurs a registered public
offering of the Issuer's securities meeting certain requirements. The
Series C Preferred Stock held by TCW/CCI and the Series C Preferred Stock
issuable upon the exercise of the Option, if converted into Common Stock,
would represent approximately 28.45% of the Common Stock and, assuming the
other shares of the Series C Preferred Stock (including those shares
issuable on the exercise of other options for Series C Preferred Stock)
were also converted into Common Stock, would represent approximately 18.40%
of the Common Stock.
Each of the Reporting Parties, other than TCW/CCI, as a parent corporation
or partnership or as a general partner or member of other Reporting
Parties, may be deemed to beneficially own the Series C Preferred Stock.
Each of TCWG, Robert Day, TIMCO, TCW Advisors, TCW PEH, Baeza & Co. and
Mario L. Baeza disclaim beneficial ownership of the Series C Preferred
Stock and any Common Stock reported herein and the filing of this Statement
shall not be construed as an admission that such entities and individuals
are the beneficial owners of any securities covered by this Statement.
Pursuant to Rule 13d-5(b)(1) promulgated under the Securities Exchange Act
of 1934 (the "Exchange Act"), to the extent a "group" is deemed to exist by
virtue of the Stockholders Agreement, each of the Reporting Persons would
be deemed to have beneficial ownership, for purposes of Sections 13(g) and
13(d) of the Exchange Act, of all of the equity securities of the Issuer
beneficially owner by the other parties to the Stockholders Agreement.
Accordingly, the Reporting Persons would be deemed to beneficially own an
aggregate of 25,358,748 shares of Common Stock, or approximately 96.97% of
the outstanding shares of Common Stock (assuming the conversion of all the
outstanding Series C Preferred Stock held by the parties to the
Shareholders Agreement to Common Stock).
The filing of this Statement shall not be construed as an admission, for
the purposes of Sections 13(g) and 13(d) and Regulation 13D-G of the
Exchange Act nor for any other purpose or under any other provision of the
Exchange Act or the rules promulgated thereunder, that any of the Reporting
Persons is the beneficial owner of any securities owned by any other party
to the Stockholders Agreement.
(b) TCW/LAP as the person acting on behalf of TCW/LAMP, the general
partner of TCW/LAPEP, and TCW/LAPEP, as the sole member of TCW/CCI, have
the power to vote and dispose of the TCW/CCI Preferred Stock held by
TCW/CCI. Therefore, TCW/LAP, TCW/LAMP, TCW/LAPEP and TCW/CCI collectively
have the power to vote and dispose of the Series C Preferred Stock. In
addition, TCW PEH and Baeza & Co., as the 50% owners of TCW/LAP, and Mr.
Baeza, as the sole owner of Baeza & Co., may be deemed to beneficially own
the Series C Preferred Stock. TCW PEH, Baeza & Co. and Mr. Baeza each
disclaims beneficial ownership of the shares of the Series C Preferred
Stock and any Common Stock reported herein and the filing of this Statement
shall not be construed as an admission that any such entity is the
beneficial owner of any securities covered by this statement.
TIMCO, as the parent corporation of TCW Advisors, TCW Advisors as the
parent corporation of TCW PEH, TCWG, as the parent corporation of TIMCO,
and Robert Day, the Chairman of the Board of TCWG, may be deemed to
beneficially own the Series C Preferred Stock. TCW Advisors, TIMCO, TCWG
and Mr. Day each disclaims beneficial ownership of the shares of the Series
C Preferred Stock and any Common Stock reported herein and the filing of
this Statement shall not be construed as an admission that any such entity
is the beneficial owner of any securities covered by this statement.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Item 6 is hereby supplemented as follows:
On November 16, 1999, TCW/CCI received early termination of the waiting
period requirements under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, satisfying the HSR Condition. Accordingly, the Option
became exercisable on such date. On November 16, 1999, pursuant to the
Stock Purchase Agreement, the Issuer sold to TCW/CCI 1,333,333 shares of
Series C Preferred Stock; in addition, on such date, pursuant to a
Participation Agreement, dated as of October 15, 1999, between the Issuer,
TCW/CCI and certain other shareholders of the Issuer, the Issuer granted to
TCW/CCI an additional warrant entitling TCW/CCI to purchase 333,333 shares
of Common Stock of the Issuer, containing the same terms and conditions as
the original warrant to purchase 500,000 shares of the Issuer granted to
TCW/CCI on October 18, 1999.
The foregoing description of the agreements to which TCW/CCI is a party is
qualified in its entirety by reference to such agreements, copies of which
are filed as Exhibits hereto and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby supplemented as follows:
Exhibit H Warrant for the Purchase of Shares of Common Stock of
Convergence Communications, Inc. dated November 16, 1999
issued to TCW/CCI Holding LLC.
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certify that the information set forth in this Statement is
true, complete and correct.
Dated as of this 22nd day of November, 1999.
THE TCW GROUP, INC.
By: /s/ Susan Marsch
------------------------------------------
Name: Susan Marsch
Title: Authorized Signatory
TCW INVESTMENT MANAGEMENT CO.
By: /s/ Susan Marsch
------------------------------------------
Name: Susan Marsch
Title: Authorized Signatory
TCW ADVISORS, INC.
By: /s/ Susan Marsch
------------------------------------------
Name: Susan Marsch
Title: Authorized Signatory
ROBERT A. DAY
By: /s/ Susan Marsch
------------------------------------------
Name: Susan Marsch
Title: Under Power of Attorney dated
March 31, 1999, on file with
Schedule 13G for Hibbett
Sporting Goods, Inc., dated
April 9, 1999
TCW PRIVATE EQUITY HOLDINGS CORP.
By: /s/ Susan Marsch
------------------------------------------
Name: Susan Marsch
Title: Authorized Signatory
BAEZA & CO. L.L.C.
By: /s/ Mario L. Baeza
------------------------------------------
Name: Mario L. Baeza
Title: Authorized Signatory
MARIO L. BAEZA
/s/ Mario L. Baeza
- ---------------------------------------------
Mario L. Baeza
TCW/LATIN AMERICA PARTNERS, L.L.C.
By: TCW PRIVATE EQUITY HOLDINGS CORP.
By: /s/ Susan Marsch
-------------------------------------
Name: Susan Marsch
Title: Authorized Signatory
By: BAEZA & CO. L.L.C.
By: /s/ Mario L. Baeza
-------------------------------------
Name: Mario L. Baeza
Title: Authorized Signatory
TCW/LATIN AMERICA MANAGEMENT PARTNERS, L.L.C.
By: TCW/LATIN AMERICA PARTNERS, L.L.C.
By: TCW PRIVATE EQUITY HOLDINGS CORP.
By: /s/ Susan Marsch
--------------------------------
Name: Susan Marsch
Title: Authorized Signatory
By: BAEZA & CO. L.L.C.
By: /s/ Mario L. Baeza
--------------------------------
Name: Mario L. Baeza
Title: Authorized Signatory
TCW/LATIN AMERICA PRIVATE EQUITY PARTNERS
By: TCW/LATIN AMERICA PARTNERS, L.L.C.
By: TCW PRIVATE EQUITY HOLDINGS CORP.
By: /s/ Susan Marsch
--------------------------------
Name: Susan Marsch
Title: Authorized Signatory
By: BAEZA & CO. L.L.C.
By: /s/ Mario L. Baeza
--------------------------------
Name: Mario L. Baeza
Title: Authorized Signatory
TCW/CCI HOLDING L.L.C.
By: /s/ Mario L Baeza
------------------------------------------
Name: Mario L. Baeza
Title: Authorized Signatory
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO THE SECURITIES
OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED IN THE UNITED
STATES, EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE
144A UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER
SUCH ACT, PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE IS FURNISHED TO THE COMPANY
THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS
AVAILABLE.
Series C
Warrant No. 7 For the Purchase of 333,333
Shares of Common Stock
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
CONVERGENCE COMMUNICATIONS, INC.
(A NEVADA CORPORATION)
Convergence Communications, Inc., a Nevada corporation ("Company"),
hereby certifies that TCW/CCI Holding LLC ("Investor"), or its registered
assigns of this Warrant ("Registered Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company Three Hundred and
Thirty Three Thousand Three Hundred and Thirty Three (333,333) fully paid
and nonassessable shares of common stock (subject to adjustment as set
forth in Section 5 below), $.001 par value ("Common Stock"), of the Company
at an exercise price determined as set out in Section 2 below, subject to
adjustment as set forth in Section 5 below. The shares of Common Stock
issuable upon exercise of this Warrant ("Warrant"), and the exercise price
hereunder for each of such shares, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as
the "Warrant Shares" and the "Per Share Exercise Price", respectively.
The issue of this Warrant is one of a series of transactions
contemplated to occur under a certain Participation Agreement among the
Company, Investor, and certain other parties thereto and dated October 15,
1999 ("Participation Agreement"). Capitalized terms used in this Warrant
and not otherwise defined herein shall have the meaning given them in the
Participation Agreement.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in
whole or in part, at any time and from time to time during the
period from the date hereof through 5:00 p.m. New York time on
October 18, 2003 (the "Exercise Period"), provided that events
have occurred that permit the Per Share Exercise Price to be
determined as set out in Section 2, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit A
duly executed by the Registered Holder, at the principal office
of the Company, or at such other office or agency as the
Company may designate, together with the purchase price for
such shares, which may be paid in cash, or in the manner
provided for in Section 3, provided, however, that if the Per
Share Exercise Price is determined as set out in Section 2(c),
then the Warrant shall be deemed to be exercised in its
entirety on the last day of the Exercise Period, and within 10
Business Days thereafter or, if later, within five Business
Days after the Company's demand therefor, the Registered Holder
shall surrender this Warrant, with the purchase form appended
hereto as Exhibit A duly executed by the Registered Holder, at
the principal office of the Company, or at such other office or
agency as the Company may designate, together with the purchase
price for such shares, which may be paid in cash, or in the
manner provided for in Section 3.
(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 the Warrant shall have been exercised as provided in
subsection 1(a) above. At such time, the Person or Persons in
whose name or names any certificates for Warrant Shares 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 Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in
whole or in part, and in any event within 20 calendar days
after the Per Share Exercise Price shall have been paid, 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 such Registered Holder (upon
payment by such Registered Holder of any applicable transfer
taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be
entitled upon such exercise plus, in lieu of any
fractional share to which such Registered Holder would
otherwise be entitled, cash in an amount determined
pursuant to Section 6 hereof; and
(ii) in case such exercise is in part only, a new warrant
(dated the date hereof) of like tenor, calling in the
aggregate on the face thereof for a number of Warrant
Shares equal to the number of such shares called for on
the face of this Warrant, minus the number of such shares
previously issued pursuant to any exercise of the Warrant.
2. Determination of Exercise Price. The Per Share Exercise Price shall
be determined as follows, in each case, subject to adjustment as set
out in Section 5:
(a) If a Realized Valuation Event occurs prior to the last day of
the Exercise Period then, if the value per share of the Common
Stock as evidenced by the Realized Valuation Event (without
taking into consideration the number of shares of Common Stock
issuable under this or the other Series C Warrants, but taking
into consideration the number of such shares issuable under all
other warrants, convertible securities and options then
outstanding) (the "Realized Value Before") is an amount that,
when discounted to the Going-In Value from the date of the
Realized Valuation Event to the Closing Date (based on a 365
day year), yields a return equal to the daily equivalent of 45%
per annum or greater, then the Per Share Exercise Price shall
be equal to the Realized Value Before. Otherwise, the Per Share
Exercise Price shall be determined as provided in Section 2(b).
(b) If the Realized Value Before is not sufficient to provide the
yield as set out in Section 2(a), then the Per Share Exercise
Price shall be a price less than the Realized Value Before,
which price (the "Lower Price") shall be determined such that:
(i) the sum of (A) the number of shares of Common Stock into
which all of the Series C Preferred Stock acquired by the
Investor at the Closing is convertible multiplied by the
value of the Common Stock as evidenced by the Realized
Valuation Event (taking into consideration the number of
shares of Common Stock issuable under this and all other
warrants, convertible securities and options then
outstanding) (the "Realized Value After"), plus (B) the
number of Warrant Shares multiplied by the difference
between the Realized Value After and the Lower Price,
(ii) when discounted from the date of the Realized Valuation
Event to the Closing Date (based on a 365 day year for the
number of days elapsed) to an amount equal to the
aggregate purchase price of all the Series C Preferred
Stock acquired by the Investor at the Closing,
yields a return equal to the daily equivalent of 45% per annum,
provided that the Lower Price shall not be greater than the
Realized Value After nor less than U.S. $0.01. An example of
such a calculation is set out as Schedule 1 to this Warrant.
(c) If a Realized Valuation Event fails to occur prior to the last
day of the Exercise Period, then the Per Share Exercise Price
shall be U.S.$0.01.
3. Cashless Exercise. The Registered Holder may elect to pay the Per
Share Exercise Price (a) by surrender to the Company of shares of
Common Stock which have been held by the Registered Holder for at
least six months, and which have a fair value, on the date of
exercise, equal to the Per Share Exercise Price for the number of
Warrants exercised, (b) by surrender to the Company of shares of
Series C Convertible Preferred Stock with a Realized Value After,
determined on an as converted basis, equal to the Per Share Exercise
Price for the number of Warrant Shares exercised, (c) by surrender
to the Company of this Warrant (as provided in Section 4 below) or
(d) by a combination of cash and/or any of the securities described
in clauses (b), (c) or (d) of this Section 3.
4. Conversion Rights. The Registered Holder shall have the right to
convert Warrant or any portion thereof (the "Conversion Right") into
Warrant Shares as provided in this Section, but only if this Warrant
shall otherwise be exercisable hereunder.
Upon exercise of the Conversion Right with respect to a particular
number of Warrant Shares (the "Converted Warrant Shares"), the
Company shall deliver to the Registered Holder (without payment by
the Registered Holder of any cash or other consideration) a number
of Warrant Shares determined as follows:
(a) a quotient is obtained by dividing
(i) the difference between (A) the Realized Value After (but,
if the Conversion Right is exercised after the date on
which the Realized Valuation Event occurs, the higher of
the Realized Value After and the fair value of the Common
Stock as of the date of exercise) and (B) the Per Share
Exercise Price, by
(ii) the Realized Value After (or, if the Conversion Right is
exercised after the date on which the Realized Valuation
Event occurs, the higher of the Realized Value After and
the fair value of the Common Stock), and
(b) then the quotient is multiplied by the number of Converted
Warrant Shares.
5. Adjustments. The number and kind of securities issuable upon the
exercise of this Warrant and the Per Share Exercise Price shall be
subject to adjustment from time to time in accordance with the
following provisions.
(a) Certain Definitions. For purposes of this Warrant:
(i) The term "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued, or deemed to be issued
by the Company pursuant to subsection (e) of this Section
5, after the Subsequent Closing Date, as that term is
defined in the Participation Agreement or, if no
Subsequent Closing, as defined in the Participation
Agreement, takes place, the first date of issuance of
this Warrant (the "Original Issue Date") except:
(A) issuances of Common Stock, convertible Securities
and/or Options to officers, employees, consultants or
directors; provided that such issuances pursuant to
this clause (A) in the aggregate do not exceed more
than 10% of the shares of Common Stock outstanding,
as determined on a fully-diluted basis (the
"Management Securities"); and
(B) issuances of Common Stock, Convertible Securities,
warrants and/or Options granted or approved to be
granted by the Board on or prior to the Original
Issue Date.
(ii) The term "Common Stock" shall mean (A) the Common Stock
and (B) the stock of the Company of any class, or series
within a class, whether now or hereafter authorized,
which has the right to participate in the distribution of
either earnings or assets of the Company without limit as
to the amount or percentage.
(iii) The term "Convertible Securities" shall mean any evidence
of indebtedness, shares or other securities (other than
the Series C Warrants, the FundElec/Internexus Warrants
and the Series C Shares) convertible into or exercisable
or exchangeable for Common Stock.
(iv) The term "Options" shall mean any and all rights, options
or warrants (other than the Management Securities, the
Series C Warrants, the FondElec/Internexus Warrants and
the Series C Shares) to subscribe for, purchase or
otherwise in any manner acquire Common Stock or
Convertible Securities.
(b) Merger or Subdivision or Combination of Shares. In the event of
a merger or consolidation to which the Company is a party prior
to a given exercise of this Warrant, the securities issuable
upon the exercise of this Warrant shall, after such merger or
consolidation, be exercisable into such kind and number of
shares of stock and/or other securities, cash or other property
which the Registered Holder would have been entitled to receive
if the Registered Holder had exercised this Warrant prior to
such consolidation or merger. If outstanding shares of Common
Stock are subdivided, or a record is taken of the holders of
Common Stock for the purpose of so subdividing, prior to a
given exercise of this Warrant, the Per Share Exercise Price
applicable to the shares issuable upon such exercise shall be
reduced proportionately and the number of shares issuable
pursuant to this Warrant shall be proportionately increased. If
outstanding shares of Common Stock are combined, or a record is
taken of the holders of Common Stock for the purpose of so
combining, prior to a given exercise of this Warrant, the Per
Share Exercise Price applicable to the shares issuable upon
such exercise shall be increased proportionately and the number
of shares issuable pursuant to this Warrant shall be
proportionately decreased.
(c) Stock Dividends. If shares of Common Stock are issued as a
dividend or other distribution on the Common Stock (or such
dividend or distribution is declared or a record is taken of
the holders of Common Stock for the purpose of receiving such
dividend or distribution), prior to a given exercise of this
Warrant, the Per Share Exercise Price applicable to the Warrant
Shares issuable upon such exercise shall be adjusted to an
amount determined by multiplying the Per Share Exercise Price
otherwise applicable by a fraction (i) the numerator of which
shall be the number of shares of Common Stock outstanding
immediately prior to the declaration or payment of such
dividend or other distribution, and (ii) the denominator of
which shall be the total number of shares of Common Stock
outstanding immediately after the declaration or payment of
such dividend or other distribution and the number of Warrant
Shares issuable pursuant to this Warrant shall be adjusted to a
number determined by multiplying the number of Warrant Shares
by the inverse of that fraction. In the event that the Company
shall declare or pay any dividend on the Common Stock payable
in any right to acquire Common Stock for no consideration, then
the Company shall be deemed to have made a dividend payable in
Common Stock in an amount of shares equal to the maximum number
of shares issuable upon exercise of such rights to acquire
Common Stock.
(d) Issuance of Additional Shares of Common Stock. If the Company
issues any Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant
to subsection (e) below) prior to a given exercise of this
Warrant (other than as provided in the foregoing subsections
(b) and (c)), for no consideration or for a consideration per
share less than the Per Share Exercise Price otherwise
applicable to the shares issuable upon such exercise, the Per
Share Exercise Price shall be reduced to a price equal to the
price at which the Additional Shares of Common Stock were
issued.
(e) Deemed Issue of Additional Shares of Common Stock. If the
Company at any time or from time to time after the date hereof
issues any Convertible Securities or Options or fixes a record
date for the determination of holders of any class of
securities then entitled to receive any such Options or
Convertible Securities, then the maximum number of shares (as
set forth in the instrument relating thereto without regard to
any provisions contained therein designed to protect against
dilution) of Common Stock issuable upon the exercise of such
Options, or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issue of Options or
Convertible Securities or, in case such a record date shall
have been fixed, as of the close of business on such record
date, provided that in any such case in which Additional Shares
of Common Stock are deemed to be issued:
(i) no further adjustments in the Per Share Exercise Price
shall be made by reason of the subsequent issue of
Convertible Securities or shares of Common Stock upon the
exercise of such Options or the issue of Common Stock upon
the conversion or exchange of such Convertible Securities;
and
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any
increase or decrease in the consideration payable to the
Company, or increase or decrease in the number of shares
of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Per Share Exercise Price computed
taking into account the original issuance of such Options
or Convertible Securities (or upon the occurrence of a
record date with respect thereto), and any subsequent
adjustments based thereon, by reason of any such increase
or decrease becoming effective, shall be recomputed to
reflect such increase or decrease insofar as it affects
such Options or the rights of conversion or exchange under
such Convertible Securities (provided, however, that no
such adjustment of the Per Share Exercise Price shall
affect Common Stock previously issued upon exercise of
this Warrant).
(f) Determination of Consideration. For purposes of this Section 5,
the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(i) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be the aggregate
amount of cash received by the Company; and
(B) insofar as it consists of property other than cash,
be computed at the fair value thereof at the time of
the issue, as determined in good faith by the vote of
a majority of the Board, or if the Board cannot reach
such agreement, by a qualified independent public
accounting firm, other than the accounting firm then
engaged as the Company's independent auditors.
(ii) Options and Convertible Securities. The consideration per
share received by the Company for Additional Shares of
Common Stock deemed to have been issued pursuant to
subsection (e) above, relating to Options and Convertible
Securities, shall be determined by dividing:
(A) the total amount, if any, received or receivable by
the Company as consideration for the issue of such
Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set
forth in the instruments relating thereto, without
regard to any provision contained therein designed to
protect against dilution) payable to the Company upon
the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the
case of Options for Convertible Securities, the
exercise of such Options for Convertible Securities
and the conversion or exchange of such Convertible
Securities, by
(B) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without
regard to any provision contained therein designed to
protect against dilution) issuable upon the exercise
of such Options or conversion or exchange of such
Convertible Securities.
(g) Other Provisions Applicable to Adjustment Under this Section.
The following provisions shall be applicable to the adjustments
in Per Share Exercise Price as provided in this Section 5:
(i) Treasury Shares. The number of shares of Common Stock at
any time outstanding shall not include any shares thereof
then directly or indirectly owned or held by or for the
account of the Company.
(ii) Other Action Affecting Common Stock. If the Company shall
take any action affecting the outstanding number of
shares of Common Stock other than an action described in
any of the foregoing subsections 5(b) through 5(e)
hereof, inclusive, which would have an inequitable effect
on the holders of this Warrant, then the Per Share
Exercise Price shall be adjusted in such manner and at
such time as the Board on the advice of the Company's
independent public accountants may in good faith
determine to be equitable in the circumstances.
(iii) Minimum Adjustment. No adjustment of the Per Share
Exercise Price shall be made if the amount of any such
adjustment would be an amount less than one percent (1%)
of the Per Share Exercise Price then in effect, but any
such amount shall be carried forward and an adjustment in
respect thereof shall be made at the time of and together
with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried
forward, shall aggregate an increase or decrease of one
percent (1%) or more.
(iv) Certain Adjustments. The Per Share Exercise Price shall
not be adjusted upward except in the event of a
combination of the outstanding shares of Common Stock
into a smaller number of shares of Common Stock or in the
event of a readjustment of the Per Share Exercise Price.
(h) Adjustment to Lowest Price. The Company acknowledges and agrees
that the foregoing provisions of this Section 5 may require
adjustments to be made in response to various circumstances,
which adjustments may result in varying calculations of the Per
Share Exercise Price, and that, notwithstanding any of such
foregoing provisions, the Per Share Exercise Price applicable
upon a given exercise of this Warrant shall, in any case, be
the lowest of the amounts so calculable up to the date of
exercise.
(i) Notices of Adjustments. Whenever the Per Share Exercise Price
is adjusted as herein provided, an officer of the Company shall
compute the adjusted Per Share Exercise Price in accordance
with the foregoing provisions and shall prepare a written
certificate setting forth such adjusted Per Share Exercise
Price and showing in detail the facts upon which such
adjustment is based, and such written instrument shall promptly
be delivered to the recordholders of this Warrant.
6. 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 for the Warrant Shares on the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. or the closing market price of the Warrant
Shares 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 fair
market value of a Warrant Share as shall be reasonably determined by
the Board.
7. Limitation on Sales, etc. The Registered Holder acknowledges that
this Warrant and the Warrant Shares have not been registered under
the Securities Act of 1933, as amended (the "Act"), and agrees,
except as specified in the proviso hereto, not --- to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Shares issued upon its exercise in the
absence of (a) an effective registration statement under the Act as
to this Warrant or the Warrant Shares issued upon its exercise or
both, as the case may be, and registration or qualification of this
Warrant or such Warrant Shares under any applicable Blue Sky or
state securities law then in effect, or (b) an opinion of counsel,
satisfactory to the Company, that such registration and
qualification are not required; provided that the Registered Holder
may transfer this Warrant at any time to any of its affiliates.
Without limiting the generality of the foregoing, unless the
offering and sale of the Warrant Shares to be issued upon the
exercise of the Warrant shall have been effectively registered under
the Act and unless the sale is to an affiliate of the Registered
Holder, 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
reasonably 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
a legend in substantially the following form shall be endorsed upon
the certificate(s) representing the Warrant Shares issued pursuant
to such exercise:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
pursuant to the securities or "Blue Sky" laws of any state.
Such securities may not be offered, sold, transferred,
pledged, hypothecated or otherwise assigned, except pursuant
to (i) a registration statement with respect to such
securities which is effective under such Act, (ii) Rule 144
or Rule 144A under such Act, or (iii) any other exemption
from registration under such Act, provided that, if requested
by the Company, an opinion of counsel reasonably satisfactory
in form and substance is furnished to the Company that an
exemption from the registration requirements of such Act is
available.
8. Valid Issuance; Reservation of Stock. All shares of Common Stock
issuable upon the exercise of this Warrant shall, upon issuance by
the Company, be validly issued, fully paid and nonassessable, free
from preemptive rights and free from all taxes, liens or charges
with respect thereto created or imposed by the Company. The Company
will at all times reserve and keep available, solely for issuance
and delivery upon the exercise of this Warrant, such Warrant Shares
and other stock, securities and property, as from time to time shall
be issuable upon the exercise of this Warrant and shall, if required
to effect the purposes of this Warrant, use its best efforts to
cause the authorization of additional capital stock of the Company
through the amendment of the Company's articles of incorporation or
otherwise.
9. 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 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.
10. Transfers, etc. The Registered Holder acknowledges and agrees that
this Warrant and its underlying securities are subject to certain
restrictions on transfer set forth in the CCI Shareholders'
Agreement, as that term is defined in the Participation Agreement,
and that any transfer of this Warrant shall be subject to the
Registered Holder's compliance with such transfer restrictions. The
Company will maintain a register containing the names and addresses
of the Registered Holders of this Warrant. Any Registered Holder may
change its, his or her address as shown on the warrant register by
written notice to the Company requesting such change. 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 and shall not be bound to
recognize any equitable or other claim to or interest in this
Warrant on the part of any other person; 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.
11. Registration Rights. This Warrant shall entitle the Registered
Holder of this Warrant to the registration, holdback, piggyback and
other rights set forth in the Amended and Restated Registration
Rights Agreement dated as of the date hereof by and among the
Holder, certain other Persons, and the Company, by which the
Registered Holder agrees to be bound.
12. 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, sent
by reputable overnight delivery or by facsimile 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, sent by reputable overnight delivery or by facsimile
(801-532-6060) to the Company at its offices at 102 West 500 South,
Suite 320, Salt Lake City, Utah 84101, to the attention of
President, or such other address, or to the attention of such other
officer, as the Company shall so notify the Registered Holder.
13. No Rights as Stockholders. 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.
14. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against whom
enforcement of the change or waiver is sought.
15. Headings. The headings of this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
16. Governing Law. This Warrant will be governed by and construed in
accordance with the law of the State of New York including Section
5-1401 of the New York General Obligations Law. All disputes arising
under or relation to this Warrant shall first be subject to
conciliation in accordance with the Rules of Conciliation of the
International Chamber of Commerce and, failing conciliation, be
finally settled under the Rules of Arbitration of the International
Chamber of Commerce by three arbitrators appointed in accordance
with said Rules. The place of arbitration shall be New York, New
York. The language of the arbitration shall be English. In the event
any dispute under the Participation Agreement relates in any way to
the validity, performance or interpretation of this Warrant and an
arbitral tribunal is constituted pursuant to Section 11(n) of the
Participation Agreement, all parties to any dispute hereunder agree
(i) to be joined to the procedures initiated pursuant to Section
11(n) of the Participation Agreement; (ii) to have any proceedings
initiated hereunder consolidated with proceedings initiated pursuant
to Section 11(n) of the Participation Agreement and (iii) to be
bound by any ruling of the arbitral tribunal constituted pursuant to
Section 11(n) of the Participation Agreement or any interim or final
award thereof. Submission of disputes to arbitration pursuant to the
Rules of Arbitration of the International Chamber of Commerce, in
consolidation with any disputes submitted to arbitration pursuant to
Section 11(n) of the Participation Agreement as provided above,
shall be the sole method of resolving disputes between the Parties
hereto. Judgment upon an arbitration award may be entered in any
court having jurisdiction.
Dated: November 16, 1999 CONVERGENCE COMMUNICATIONS, INC.
By: /s/ Lance D'Ambrosio
----------------------------
Name: Lance D'Ambrosio
Title:
EXHIBIT A
PURCHASE FORM
To: Convergence Communications, Inc.
102 West 500 South
Suite 320
Salt Lake City, Utah 84101
Dated:
In accordance with the provisions set forth in the attached Warrant,
the undersigned hereby irrevocably elects to purchase _________ shares of
the Common Stock covered by such Warrant and herewith makes payment
therefor in full at the price per share provided for in such Warrant.
The undersigned has had the opportunity to ask questions of and
receive answers from the officers of the Company regarding the affairs of
the Company and related matters, and has had the opportunity to obtain
additional information necessary to verify the accuracy of all information
so obtained.
The undersigned understands that the shares have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
other jurisdiction, and hereby represents to the Company that the
undersigned is acquiring the 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.
Signature
Address
