<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)/1/
GST TELECOMMUNICATIONS INC.
- -------------------------------------------------------------------------------
(NAME OF ISSUER)
Common Shares, without nominal or par value
- -------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
39573Q
----------------------------------------------------
(CUSIP Number)
Maria Gray, Esq. John A. Maraia, Esq.
Orrick, Herrington & Sutcliffe Corporate Counsel
400 Sansome Street Legal Department
San Francisco, CA 94111 Tomen America Inc.
(415) 773-5464 1285 Avenue of The Americas
New York, New York 10019
(212) 397-5734
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS)
September 30, 1997
-------------------------------------------------------------------
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of this class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
(Continued on following pages)
- ------------------
/1/ 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).
<PAGE>
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CUSIP NO. 39573Q 13D PAGE 2 OF 38 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tomen Corporation
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (A) [X]
(B) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
WC
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO [_]
5 ITEM 2(d) or 2(e)
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Japan
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 477,914
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,348,143
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 477,914
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,348,143
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,826,057
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
6.68%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
CO
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<PAGE>
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CUSIP NO. 39573Q 13D PAGE 3 OF 38 PAGES
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- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tomen America Inc.
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (A) [X]
(B) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
WC
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO [_]
5 ITEM 2(d) or 2(e)
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
New York
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,348,143
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,348,143
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,348,143
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
4.93%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
CO
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<PAGE>
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CUSIP NO. 39573Q 13D PAGE 4 OF 38 PAGES
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- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tomen Communication LLC
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (A) [X]
(B) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
WC
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO [_]
5 ITEM 2(d) or 2(e)
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
120,229
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
120,229
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
120,229
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
.05%
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TYPE OF REPORTING PERSON
14
CO
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<PAGE>
Page 5 of 38
Tomen Corporation, Tomen America Inc. and TM Communications LLC hereby
amend and restate in its entirety the single joint statement on Schedule 13D
filed with the Securities and Exchange Commission (the "SEC") on November 3,
1994, amended and restated in Amendment No. 1 filed with the SEC on November 23,
1994, Amendment No. 2 filed with the SEC on May 2, 1995, and Amendment No. 3
filed with the SEC on May 24, 1996, with respect to the shares of Common Stock
of GST Telecommunications Inc. (formerly known as "Greenstar Telecommunications
Inc.") as follows:
ITEM 1. SECURITY AND ISSUER
-------------------
This Statement relates to the Common Shares, without par value (the
"Shares"), of GST Telecommunications Inc., a corporation organized under the
laws of Canada and formerly known as Greenstar Telecommunications Inc. (the
"Corporation"). The address of the principal executive office of the
Corporation is 900-999 West Hastings Street, Vancouver, British Columbia, Canada
V6C 2W2.
ITEM 2. IDENTITY AND BACKGROUND
-----------------------
(a, b, c and f) This Statement is being filed by (i) Tomen
Corporation, a corporation organized under the laws of Japan ("Tomen"), the
principal business of which is a general trading company (sogo shosha) involved
in domestic and foreign trading of a wide range of products, including
foodstuffs, apparel, housing, industrial plant, tankers, aircraft and minerals,
(ii) Tomen America Inc., a New York corporation ("Tomen America"), the principal
business of which is to serve as the United States subsidiary of Tomen, carrying
on the trading business as it relates to the United States, and (iii) TM
Communications LLC, a Delaware limited liability company ("TMC"), the principal
business of which is to participate in certain telecommunications projects. The
principal office of Tomen is 14-27, Akasaka 2-chome, Minato-ku, Tokyo, Japan.
The principal office of Tomen America and TMC is 1285 Avenue of The Americas,
New York, New York 10019. Tomen America is a wholly-owned subsidiary of Tomen.
TMC is owned 80% by Tomen America and 20% by Tomen. Exhibit 1 hereto sets forth
the name, principal business, address and citizenship of each of the executive
officers and directors of Tomen, Tomen America and TMC, and is incorporated
herein by reference.
(d and e) During the last five years, none of Tomen, Tomen America,
TMC or any of the persons listed on Exhibit 1 has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors); or
(ii) was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities law or finding
any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
-------------------------------------------------
Pursuant to a Greenstar Telecommunications Inc. Common Stock Purchase
Agreement dated October 24, 1994 (the "GSI Purchase Agreement"), among the
Corporation and Tomen America, the Corporation agreed to sell, and Tomen America
agreed to purchase, certain units ("Units"), each consisting of one Share and a
warrant to purchase one-half of a Share (a "Warrant"). Tomen America purchased
500,000 Units at $4.60 per Unit for an aggregate purchase price of U.S.
$2,300,000. The Warrants issued on October 24, 1994 were exercised on October
23, 1996 at an exercise price of $5.52 per Share on the terms and conditions set
forth in the GSI Purchase Agreement and the Warrant.
The Corporation, Tomen and Tomen America amended the GSI Purchase
Agreement on November 18, 1994, effective as of October 24, 1994, to provide for
the purchase of 75% of the Shares and Warrants purchased thereunder by Tomen
America and the purchase of 25% of such Shares and Warrants by Tomen, in the
same aggregate amount, and on the terms and conditions set forth in the GSI
Purchase Agreement, as amended.
Pursuant to the GSI Purchase Agreement, as amended, the Corporation
agreed to register the 500,000 Shares issued on October 24, 1994 and the Shares
to be issued pursuant to the exercise of certain warrants and
<PAGE>
Page 6 of 38
options, from time to time after April 23, 1995, subject to certain conditions
set forth in the GSI Purchase Agreement, as amended, so that such Shares can be
sold publicly in the United States.
In addition, the Corporation agreed to cause GST Telecom Inc., a
Delaware corporation ("GST") to invite a representative designated jointly by
Tomen and Tomen America to attend all meetings of GST's Board of Directors in a
nonvoting observer capacity, and to invite a representative designated by Tomen
and Tomen America to attend all meetings of the Corporation's Board of Directors
in a nonvoting observer capacity until such designee shall be appointed as a
director of the Corporation, which the Corporation agreed would occur no later
than February 28, 1995. The Corporation increased the size of its Board of
Directors to accommodate the director designated by Tomen and Tomen America and
subsequently appointed a designee of Tomen and Tomen Corporation to the Board.
On April 26, 1995, pursuant to an option granted under the GSI
Purchase Agreement, Tomen America purchased an additional 250,000 Units
(consisting of 250,000 Shares and a Warrant to purchase 125,000 Shares) at $4.68
per Unit for an aggregate purchase price of U.S.$1,170,000. The Warrants issued
on April 26, 1995 were exercised on April 25, 1997 at an exercise price of
$5.616 per Share on the terms and conditions set forth in the GSI Purchase
Agreement and Warrant W-5 and W-6.
On September 15, 1995, Tomen America sold twenty-five percent (25%) of
the Units purchased on April 26, 1995 from the Corporation to Tomen at $4.68 per
Unit, for an aggregate purchase price of $292,500. As a result of this purchase
and sale, Tomen America's Warrant for 125,000 Units was cancelled and replaced
by a Warrant of Tomen to purchase 31,250 Shares, and a warrant of Tomen America
to purchase 93,750 Shares. Copies of Warrant W-5 and W-6 are attached hereto as
Exhibit 8 and 9, respectively, and incorporated herein by reference.
On May 24, 1996 the GSI Purchase Agreement was further amended by
Amendment No. 2 which provides for the right to purchase by Tomen or an
affiliate of Tomen, additional Shares and Warrants. A copy of Amendment No. 2
is attached hereto as Exhibit 10 and is incorporated herein by reference.
On May 24, 1996, pursuant to rights granted under the GSI Purchase
Agreement, as amended, Tomen purchased an additional 62,500 Units (consisting of
62,500 Shares and a Warrant to purchase 31,250 Shares), Tomen America purchased
187,500 Units (consisting of 187,500 Shares and a Warrant to purchase 93,750
Shares), and TMC purchased 74,074 Shares and a Warrant to purchase 46,155
Shares. The Warrants issued on May 24, 1996 are exercisable at any time before
5:00 p.m. Pacific Standard time on May 23, 1998 at an exercise price of $12.96
per Share on the terms and conditions set forth in the GSI Purchase Agreement,
as amended, and the Warrants. Copies of Warrants W-7, W-8 and W-9 are attached
hereto as Exhibits 11, 12 and 13 and incorporated herein by reference.
On September 30, 1997, pursuant to rights granted under the GSI
Purchase Agreement, as amended, Tomen purchased an additional 65,414 Units
(consisting of 65,414 Shares and a Warrant to purchase 37,500 Shares), and Tomen
America purchased 65,414 Units (consisting of 65,414 Shares and a Warrant to
purchase 37,500 Shares). The Warrants issued on September 30, 1997 are
exercisable at any time before 5:00 p.m. Pacific Standard time on September 29,
1999 at an exercise price of $12.61 per Share on the terms and conditions set
forth in the GSI Purchase Agreement, as amended, and the Warrants. Copies of
Warrants W-12 and W-13 are attached hereto as Exhibits 15 and 16 and
incorporated herein by reference.
The funds to acquire the Units under the GSI Purchase Agreement, as
amended, were obtained in full from working capital. Tomen, Tomen America and
TMC currently anticipate that future exercises of Warrants will also be funded
from working capital.
<PAGE>
Page 7 of 38
ITEM 4. PURPOSE OF TRANSACTION
----------------------
Tomen, Tomen America and TMC currently intend to hold the
Corporation's Shares for investment purposes. Neither Tomen, Tomen America nor
TMC has any current intention to purchase additional Shares other than pursuant
to the exercise of the Warrants.
Other than as discussed herein, neither Tomen, Tomen America nor TMC
has any plans or proposals which relate to or would result in (i) the
acquisition of additional securities of the Corporation or the disposition of
securities of the Corporation; (ii) an extraordinary corporate transaction, such
as a merger, reorganization or liquidation involving the Corporation or any of
its subsidiaries; (iii) a sale or transfer of a material amount of assets of the
Corporation or any of its subsidiaries; (iv) any change in the present board of
directors or management of the Corporation, including any plans or proposals to
change the number or term of directors or to fill any existing vacancies on the
board; (v) any material change in the present capitalization or dividend policy
of the Corporation; (vi) any other material change in the Corporation's business
or corporate structure; (vii) changes in the Corporation's charter, bylaws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Corporation by any person; (viii) causing a class
of the Corporation's securities to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association; (ix) a class of the
Corporation's equity securities becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities and Exchange Act of
1934; or (x) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF ISSUER
--------------------------------
(a) Tomen America may be deemed to be the beneficial owner of
1,348,143 Shares: (i) 375,000 Shares issued on October 24, 1994 pursuant to the
GSI Purchase Agreement, as amended; (ii) 187,500 Shares issued on April 26, 1995
pursuant to an exercise of an option pursuant to such agreement; (iii) 261,574
Shares issued on May 24, 1996 pursuant to such agreement (comprised of 187,500
Shares issued to Tomen America and 74,074 Shares issued to TMC); (iv) 187,500
Shares issued upon exercise of Warrants received on October 24, 1994; (v) 93,750
Shares issued upon exercise of Warrants received on April 26, 1995; (vi) 139,905
Shares to be issued upon exercise of a Warrant received on May 24, 1996
(comprised of 93,750 Shares to be issued to Tomen America and 46,155 Shares to
be issued to TMC); (vii) 65,414 Shares issued September 30, 1997 pursuant to the
GSI Purchase Agreement, as amended; and (viii) 37,500 Shares to be issued upon
exercise of a warrant received September 30, 1997. Such Shares constitute 4.93%
of the outstanding Shares (based on information obtained from the Corporation),
after giving effect to the issuance of the Shares and the Warrants pursuant to
the GSI Purchase Agreement, as amended, and assuming no other change in the
outstanding Shares.
TMC may be deemed to be the beneficial owner of 120,229 Shares:
(i) 74,074 Shares issued on May 24, 1996 issued pursuant to the GSI Purchase
Agreement as amended, and (ii) 46,155 Shares to be issued upon exercise of
Warrants received on May 24, 1996.
Tomen may be deemed to be the beneficial owner of 1,826,057 Shares:
(i) 500,000 Shares issued on October 24, 1994 pursuant to the GSI Purchase
Agreement, as amended (comprised of 125,000 Shares issued directly to Tomen
together with 375,000 Shares issued to Tomen America); (ii) 250,000 Shares
issued on April 26, 1995 pursuant to an exercise of an option pursuant to such
agreement (comprised of 187,500 Shares held by Tomen America and 62,500 Shares
held by Tomen pursuant to the September 15, 1995 transfer); (iii) 324,074 Shares
issued on May 24, 1996 pursuant to such agreement (comprised of 62,500 issued
directly to Tomen, 187,500 Shares issued to Tomen America and 74,074 Shares
issued to TMC); (iv) 250,000 Shares issued upon exercise of the Warrants
received on October 24, 1994 (comprised of 62,500 Shares issued directly to
Tomen and 187,500 Shares issued to Tomen America); (v) 125,000 Shares issued
upon exercise of Warrants received on April 26, 1995 (comprised of 93,750 Shares
issued to Tomen America and 31,250 Shares issued to Tomen pursuant to the
September 14, 1995 transfer); (vi) 171,155 Shares to be issued upon exercise of
Warrants received on May 24, 1996 (comprised of 31,250 Shares issuable directly
to Tomen, 93,750 Shares issuable to Tomen America, and 46,155 Shares issuable to
TMC); (vii) 130,828 Shares issued in September 30, 1997 pursuant to the GSI
Purchase Agreement, as amended (comprised of 65,414 Shares issued directly to
Tomen and
<PAGE>
Page 8 of 38
65,414 Shares issued to Tomen America); and 75,000 Shares to be issued upon
exercise of Warrants received on September 30, 1997 (comprised of 37,500 Shares
issuable directly to Tomen and 37,500 Shares issuable to Tomen America). Such
Shares constitute 6.68% of the outstanding Shares (based on information obtained
from the Corporation), after giving effect to the issuance of the Shares and the
Warrants pursuant to the GSI Purchase Agreement, as amended, and assuming no
other change in the outstanding Shares.
To the knowledge of Tomen, Tomen America and TMC none of the persons
described on Exhibit 1 owns any of the Corporation's Shares.
(b) By virtue of its direct ownership of all of the stock of Tomen
America and indirect ownership of all of the interests of TMC, Tomen may be
deemed to share with Tomen America and TMC, the power to vote or direct the vote
and the power to dispose or to direct the disposition of the Shares owned by
Tomen America and TMC.
(c) None in addition to the transactions described in Item 3.
(d-e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
------------------------------------------------------
Except as described in Items 2, 3 and 4, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Corporation.
<PAGE>
Page 9 of 38
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
--------------------------------
The following exhibits are incorporated herein by reference:
1. Executive Officers and Directors of Tomen Corporation and
Tomen America Inc. who are not Reporting Persons.
2. Greenstar Telecommunications Inc. Common Stock Purchase
Agreement dated October 24, 1994, between the Corporation
and Tomen America. *
3. Amendment No. 1 to Greenstar Telecommunications Inc. Common
Stock Purchase Agreement.*
4. Tomen America Inc. Warrant to purchase 187,500 Shares. *
5. Tomen Corporation Warrant to purchase 62,500 Shares. *
6. Joint Filing Agreement between Tomen Corporation and Tomen
America Inc. *
7. Power of Attorney of Tomen Corporation. *
8. Tomen Corporation Warrant to purchase 31,250 Shares. *
9. Tomen America Warrant to purchase 93,750 Shares. *
10. Amendment No. 2 to Greenstar Telecommunications Inc. Common
Stock Purchase Agreement. *
11. Tomen Corporation Warrant to purchase 31,250 Shares. *
12. Tomen America Inc. Warrant to purchase 93,750 Shares. *
13. TM Communications LLC Warrant to purchase 46,155 Shares. *
14. Joint Filing Agreement between Tomen Corporation, Tomen
America Inc., and TM Communications LLC. *
15. Tomen Corporation Warrant to purchase 37,500 Shares.
16. Tomen America Inc. Warrant to purchase 37,500 Shares.
17. Power of Attorney of Tomen Corporation.
- ----------------
* Previously filed.
<PAGE>
Page 10 of 38
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certify that the information set
forth in this statement is true, complete and correct.
Dated: October 8, 1997 TOMEN CORPORATION
By *
---------------------------------
Name: Morihiko Tashiro
Title: Managing Director
Electronics &
Telecommunications Division
TOMEN AMERICA INC.
By /s/ Daizo Nakano
--------------------------------
Name: Daizo Nakano
Title: Vice President
TM COMMUNICATIONS LLC
By /s/ Daizo Nakano
--------------------------------
Name: Daizo Nakano
Title: Manager
*By: /s/ Daizo Nakano
-----------------------------
Daizo Nakano,
Attorney-in-Fact
<PAGE>
Page 11 of 38
EXHIBIT INDEX
-------------
Exhibit Sequentially
Numbered Page
--------------------
1. Executive Officers and Directors of Tomen
Corporation and Tomen America Inc. who are not
Reporting Persons.
2. Greenstar Telecommunications Inc. Common Stock
Purchase Agreement dated October 24, 1994, between
the Corporation and Tomen America.*
3. Amendment No. 1 to Greenstar Telecommunications Inc.
Common Stock Purchase Agreement. *
4. Tomen America Inc. Warrant to purchase 187,500
Shares. *
5. Tomen Corporation Warrant to purchase 62,500
Shares. *
6. Joint Filing Agreement between Tomen Corporation and
Tomen America Inc.*
7. Power of Attorney of Tomen Corporation. *
8. Tomen Corporation Warrant to purchase 31,250 Shares.*
9. Tomen America Warrant to purchase 93,750 Shares. *
10. Amendment No. 2 to Greenstar Telecommunications Inc.
Common Stock Purchase Agreement. *
11. Tomen Corporation Warrant to purchase 31,250
Shares. *
12. Tomen America Inc. Warrant to purchase 93,750
Shares. *
13. TM Communications LLC Warrant to purchase 46,155
Shares. *
14. Joint Filing Agreement between Tomen Corporation,
Tomen America Inc., and TM Communications LLC. *
15. Tomen Corporation Warrant to purchase 37,500 Shares.
16. Tomen America Inc. Warrant to purchase 37,500 Shares.
17. Power of Attorney of Tomen Corporation.
<PAGE>
Page 12 of 38
EXHIBIT 1
---------
Executive Officers and Directors of
Tomen Corporation, Tomen America Inc.
and TM Communications LLC
Who Are Not Reporting Persons
-----------------------------------
The following sets forth certain information about executive officers
and directors of Tomen, Tomen America and TM Communications LLC who are not
Reporting Persons. Each of such persons is a citizen of Japan, with the
exception of Robert B. Cohen and Jon S. Gardner who are citizens of the United
States.
<TABLE>
<CAPTION>
Present Principal Occupation or
Employment; Name, Principal Business,
and Address in Which Such Employment is
Name and Residence or Employment is Conducted (if Different
Business Address from Business Address of Employer)
- --------------------- ----------------------------------------
<S> <C>
Yasuo Matsukawa Chairman and Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Akihiro Tsuji President and Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hideo Hirata Executive Vice President and Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hisashi Takemura President and Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kazuo Miyaoka Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Takeshi Emi Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
</TABLE>
<PAGE>
Page 13 of 38
<TABLE>
<S> <C>
Susumu Matsui Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshiaki Ueki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kichibe Ozaki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Tsutomu Nishiwaki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Katsuhiko Mizutani Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Keiji Kuwata Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Morihiko Tashiro Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Satoshi Miwa Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Naoyuki Matsunobu Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yuzo Takeshige Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
</TABLE>
<PAGE>
Page 14 of 38
<TABLE>
<S> <C>
Hajime Kawamura Managing Director
1285 Avenue of the Americas Tomen Corporation
New York, New York 10019 President and Director
(business) Tomen America Inc.
Kiyobumi Yamada Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hiroshi Uemura Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Michio Ishidate Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kazuhiko Otsuka Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hiroshi Nagatomo Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hiroyuki Tsuchimoto Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshitaka Mangyoku Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kenzo Inoue Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
</TABLE>
<PAGE>
Page 15 of 38
<TABLE>
<S> <C>
Kouji Taira Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshio Tadeno Director
14-27 Akasaka 2-chome Tomen Corporation
Tokyo, Japan (business)
Yoji Kikkawa Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kimikani Ushizaki Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Minota Kano Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Shinichi Yamada Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Takahiko Nishida Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Katsumi Yamada Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Toshio Hori Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Robert B. Cohen Executive Vice President,
1285 Avenue of the Americas Secretary and Director
New York, New York 10019 Tomen America Inc.
(business)
</TABLE>
<PAGE>
Page 16 of 38
<TABLE>
<S> <C>
Tadashi Kobayashi Senior Vice President
1285 Avenue of the Americas Tomen America Inc.
New York, New York 10019
(business)
Jon S. Gardner Senior Vice President
1285 Avenue of the Americas Tomen America Inc.
New York, New York 10019
(business)
Hideki Mushika Vice President and Treasurer
1285 Avenue of the Americas Tomen America Inc.
New York, New York 10019
(business)
Masahito Honda Manager
1285 Avenue of the Americas TM Communications LLC
New York, New York 10019
(business)
Daizo Nakano Manager
1285 Avenue of the Americas TM Communications LLC
New York, New York 10019
(business)
</TABLE>
<PAGE>
EXHIBIT 15
WARRANT
-------
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE WITHOUT THE
PRIOR APPROVAL OF THE VANCOUVER STOCK EXCHANGE UNTIL SEPTEMBER 30, 1998.
No. W - 12 Warrant to Purchase 37,500 Shares of
Common Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
GST TELECOMMUNICATIONS, INC.
Void after September 29, 1999
This certifies that, for value received, Tomen Corporation, a Japan
corporation, or registered assigns ("Holder") is entitled, subject to the terms
set forth below, to purchase from GST Telecommunications, Inc., a Canadian
corporation (the "Company"), Thirty-Seven Thousand Five Hundred (37,500) shares
of the Common Stock, no par value (the "Common Stock") of the Company, as
constituted on September 30, 1997 (the "Warrant Issue Date"), upon surrender
hereof, at the principal office of the Company referred to below, with the
subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The number,
---------
character and Exercise Price of such share of the Common Stock are subject to
adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, which is one of a series of warrants issued for the Common Stock
of the Company, and any warrants delivered in substitution or exchange therefor
as provided herein.
This Warrant is issued in connection with the transactions described in
Section 2.1 of that certain Greenstar Telecommunications Inc. Stock Purchase
Agreement between the Company and Tomen America Inc. ("Tomen America"), dated as
of October 24, 1994, as amended by Amendment No. 1 among the Company, Tomen
America and Tomen Corporation, dated as of November 18, 1994 and Amendment No. 2
among the Company,
<PAGE>
Tomen America and Tomen Corporation, dated as of May 24, 1996, (the "GSI Stock
Purchase Agreement"). The holder of this Warrant is subject to certain
restrictions set forth in the GSI Stock Purchase Agreement and shall be entitled
to certain rights and privileges set forth in the GSI Stock Purchase Agreement.
This Warrant is one of the Warrants referred to as the "Warrants" in the GSI
Stock Purchase Agreement.
1. TERM OF WARRANT. Subject to the terms and conditions set forth herein,
---------------
this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific standard
time, on September 29, 1999 (the day which is two (2) years after the Warrant
Issue Date), and shall be void thereafter.
2. EXERCISE PRICE. The Exercise Price at which this Warrant may be
--------------
exercised shall be $ 12.61 per share of Common Stock (one hundred and twenty
percent (120%) of the per share price of the shares of the Company's Common
Stock purchased by Tomen America on the Warrant Issue Date) as adjusted from
time to time pursuant to Section 11 hereof.
----------
3. EXERCISE OF WARRANT.
-------------------
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part, at any time, or from time to time, during the
term hereof as described in Section 1 above, by the surrender of this Warrant
---------
and the Notice of Exercise annexed hereto duly completed and executed on behalf
of the Holder, at the office of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the Holder at the
address of the Holder appearing on the books of the Company, upon payment (i) in
cash or by check acceptable to the Company, (ii) by cancellation by the Holder
of indebtedness of the Company to the Holder then due and payable by the
Company, or (iii) by a combination of (i) and (ii), of the purchase price of the
shares to be purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
(c) Net Issue Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise and notice of such
2
<PAGE>
election in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation)
B = Exercise Price (as adjusted to the date of such calculations
For purposes of the above calculation, fair market value of one share of
Common Stock shall be determined by the Company's Board of Directors in good
faith; PROVIDED, HOWEVER, that where there exists a public market for the
Company's Common Stock at the time of such exercise, the fair market value per
share shall be the average of the closing bid and asked prices of the Common
Stock quoted in the Over-The-Counter Market Summary or the last reported sale
price of the Common Stock or the closing price quoted on the NASDAQ National
Market System or on any exchange on which the Common Stock is listed (including,
without limitation, the American Stock Exchange), whichever is applicable, as
published in the Western Edition of The Wall Street Journal for the five (5)
trading days prior to the date of determination of fair market value.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or script
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the fair market value
of the Common Stock multiplied by such fraction.
5. REPLACEMENT OF WARRANT. On 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, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, or surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. Subject to Section 9 and 11 of this Warrant,
---------------------- --------- --
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the
3
<PAGE>
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
-------------------
(a) Warrant Register. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change its address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given
to the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the Common Stock or other securities then
------------
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Non-negotiability of Warrant. This Warrant
may not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are required by
the Company). Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto), and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers and contained in this Section 7,
---------
the Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
(e) Compliance with Securities Laws.
4
<PAGE>
(i) The Holder of this Warrant, by acceptance thereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances that will not
result in a violation of the Act or any state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that the shares of Common Stock so
purchased are being acquired solely for the Holder's own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale.
(ii) This Warrant and all shares of Common Stock issued upon exercise
hereof shall be stamped or imprinted with legends in substantially the following
form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY
SECURITIES OR SHARES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES AND
RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE WITHOUT THE
PRIOR APPROVAL OF THE VANCOUVER STOCK EXCHANGE UNTIL SEPTEMBER 30, 1998.
8. RESERVATION OF STOCK. The Company covenants that during the term this
--------------------
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation to provide
sufficient reserves of shares of Common Stock issuable upon exercise of the
Warrant. The Company further covenants that all shares that may be issued upon
the exercise of rights represented by this Warrant, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein). The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
9. NOTICES.
-------
5
<PAGE>
(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
----------
issue a certificate signed by its Chief Financial Officer setting forth in
reasonable detail, the event required the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by first-
class mail, postage prepaid) to the Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing.
10. AMENDMENTS.
----------
(a) This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such damage, waiver, discharge or termination is
sought.
6
<PAGE>
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The Exercise Price and the number of shares purchasable
-----------
hereunder are subject to adjustment from to time as follows.
11.1 Merger, Sale of Assets, etc. If at any time while this Warrant,
or any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then as a part of such
reorganization, merger, consolidation, sale or transfer lawful provision shall
be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
payment of the Exercise Price then in effect, the number of shares of stock or
other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11.1 shall
---------- ------------
similarly apply to successive reorganization, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Warrant with respect to the rights and interests of
the Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
11.2 Reclassification, etc. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
----------
7
<PAGE>
11.3 Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.4 Adjustments for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible Stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or other additional stock available by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
the provisions of this Section 11.
----------
11.5 Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
----------
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
11.6 No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
----------
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holders of this Warrant against impairment.
12. REGISTRATION RIGHTS. Upon exercise of this Warrant, the Holder shall
-------------------
have and be entitled to exercise, together with all other holders of Registrable
Securities possessing registration rights under the GSI Stock Purchase
Agreement, the rights of registration granted under the GSI Stock Purchase
Agreement to Registrable Securities (with respect to the shares of GSI Common
Stock issued on exercise of this Warrant). By its receipt of this Warrant,
Holder agrees to be bound by the Agreement upon exercise of this Warrant as a
party thereto.
8
<PAGE>
13. GOVERNING LAW. The terms and conditions of this Warrant shall be
-------------
governed by and construed in accordance with New York law, except that body of
law relating to choice of laws.
14. MISCELLANEOUS. The headings in this Warrant are for purposes of
-------------
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be mailed by
first-class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who shall
have furnished an address to the Company in writing.
IN WITNESS WHEREOF, GST Telecommunications, Inc. has caused this
Warrant to be executed by its officer thereunto duly authorized.
Dated: September 30, 1997
GST TELECOMMUNICATIONS, INC.
By: /s/ Clifford V. Sander
-----------------------
Name: Clifford V. Sander
Title: Senior Vice President,
Treasurer & Chief Accounting
Officer
9
<PAGE>
NOTICE OF EXERCISE
To: GST Telecommunications, Inc.
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of GST Telecommunications, Inc., pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price for such shares in
full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of the Common Stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of Common Stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of Tomen Corporation [OR IN SUCH OTHER NAME AS IS
SPECIFIED BELOW:
____________________________________
(NAME)
____________________________________]
(NAME)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of Tomen Corporation [OR IN SUCH OTHER NAME AS IS SPECIFIED
BELOW:
____________________________________]
(NAME)
TOMEN CORPORATION
Date: By:__________________________________
Name:
Title:
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
and does hereby irrevocably constitute and appoint Attorney ___________________
to make such transfer on the books of GST Telecommunications, Inc., maintained
for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will not
offer, sell or otherwise dispose of this Warrant or any shares of stock to be
issued upon exercise hereof except under circumstances which will not result in
a violation of the Securities Act of 1933, as amended, or any state securities
laws. Further, the Assignee has acknowledged that upon exercise of this Warrant,
the Assignee shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of stock so purchased are being
acquired for investment and not with a view toward distribution or resale.
Dated:
-------------------------
---------------------------------------
Signature of Holder
<PAGE>
EXHIBIT 16
WARRANT
-------
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE WITHOUT THE
PRIOR APPROVAL OF THE VANCOUVER STOCK EXCHANGE UNTIL SEPTEMBER 30, 1998.
No. W - 13 Warrant to Purchase 37,500 Shares of
Common Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
GST TELECOMMUNICATIONS, INC.
Void after September 29, 1999
This certifies that, for value received, Tomen America Inc., a New York
corporation, or registered assigns ("Holder") is entitled, subject to the terms
set forth below, to purchase from GST Telecommunications, Inc., a Canadian
corporation (the "Company"), Thirty-Seven Thousand Five Hundred (37,500) shares
of the Common Stock, no par value (the "Common Stock") of the Company, as
constituted on September 30, 1997 (the "Warrant Issue Date"), upon surrender
hereof, at the principal office of the Company referred to below, with the
subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The number,
---------
character and Exercise Price of such share of the Common Stock are subject to
adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, which is one of a series of warrants issued for the Common Stock
of the Company, and any warrants delivered in substitution or exchange therefor
as provided herein.
This Warrant is issued in connection with the transactions described in
Section 2.1 of that certain Greenstar Telecommunications Inc. Stock Purchase
Agreement between the Company and Tomen America Inc. ("Tomen America"), dated as
of October 24, 1994, as amended by Amendment No. 1 among the Company, Tomen
America and Tomen Corporation, dated as of November 18, 1994 and Amendment No. 2
among the Company,
<PAGE>
Tomen America and Tomen Corporation, dated as of May 24, 1996, (the "GSI Stock
Purchase Agreement"). The holder of this Warrant is subject to certain
restrictions set forth in the GSI Stock Purchase Agreement and shall be entitled
to certain rights and privileges set forth in the GSI Stock Purchase Agreement.
This Warrant is one of the Warrants referred to as the "Warrants" in the GSI
Stock Purchase Agreement.
1. TERM OF WARRANT. Subject to the terms and conditions set forth herein,
---------------
this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific standard
time, on September 29, 1999 (the day which is two (2) years after the Warrant
Issue Date), and shall be void thereafter.
2. EXERCISE PRICE. The Exercise Price at which this Warrant may be
--------------
exercised shall be $ 12.61 per share of Common Stock (one hundred and twenty
percent (120%) of the per share price of the shares of the Company's Common
Stock purchased by Tomen America on the Warrant Issue Date) as adjusted from
time to time pursuant to Section 11 hereof.
----------
3. EXERCISE OF WARRANT.
-------------------
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part, at any time, or from time to time, during the
term hereof as described in Section 1 above, by the surrender of this Warrant
---------
and the Notice of Exercise annexed hereto duly completed and executed on behalf
of the Holder, at the office of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the Holder at the
address of the Holder appearing on the books of the Company, upon payment (i) in
cash or by check acceptable to the Company, (ii) by cancellation by the Holder
of indebtedness of the Company to the Holder then due and payable by the
Company, or (iii) by a combination of (i) and (ii), of the purchase price of the
shares to be purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
(c) Net Issue Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise and notice of such
2
<PAGE>
election in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation)
B = Exercise Price (as adjusted to the date of such calculations
For purposes of the above calculation, fair market value of one share of
Common Stock shall be determined by the Company's Board of Directors in good
faith; PROVIDED, HOWEVER, that where there exists a public market for the
Company's Common Stock at the time of such exercise, the fair market value per
share shall be the average of the closing bid and asked prices of the Common
Stock quoted in the Over-The-Counter Market Summary or the last reported sale
price of the Common Stock or the closing price quoted on the NASDAQ National
Market System or on any exchange on which the Common Stock is listed (including,
without limitation, the American Stock Exchange), whichever is applicable, as
published in the Western Edition of The Wall Street Journal for the five (5)
trading days prior to the date of determination of fair market value.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or script
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the fair market value
of the Common Stock multiplied by such fraction.
5. REPLACEMENT OF WARRANT. On 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, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, or surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. Subject to Section 9 and 11 of this Warrant,
---------------------- --------- --
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the
3
<PAGE>
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
-------------------
(a) Warrant Register. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change its address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given
to the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the Common Stock or other securities then
------------
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Non-negotiability of Warrant. This Warrant
may not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are required by
the Company). Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto), and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers and contained in this Section 7,
---------
the Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
(e) Compliance with Securities Laws.
4
<PAGE>
(i) The Holder of this Warrant, by acceptance thereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances that will not
result in a violation of the Act or any state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that the shares of Common Stock so
purchased are being acquired solely for the Holder's own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale.
(ii) This Warrant and all shares of Common Stock issued upon
exercise hereof shall be stamped or imprinted with legends in substantially the
following form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY
SECURITIES OR SHARES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES AND
RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE WITHOUT THE
PRIOR APPROVAL OF THE VANCOUVER STOCK EXCHANGE UNTIL SEPTEMBER 30, 1998.
8. RESERVATION OF STOCK. The Company covenants that during the term this
--------------------
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation to provide
sufficient reserves of shares of Common Stock issuable upon exercise of the
Warrant. The Company further covenants that all shares that may be issued upon
the exercise of rights represented by this Warrant, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein). The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
9. NOTICES.
-------
5
<PAGE>
(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
----------
issue a certificate signed by its Chief Financial Officer setting forth in
reasonable detail, the event required the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by first-
class mail, postage prepaid) to the Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing.
10. AMENDMENTS.
----------
(a) This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such damage, waiver, discharge or termination is
sought.
6
<PAGE>
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The Exercise Price and the number of shares purchasable
-----------
hereunder are subject to adjustment from to time as follows.
11.1 Merger, Sale of Assets, etc. If at any time while this Warrant,
or any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then as a part of such
reorganization, merger, consolidation, sale or transfer lawful provision shall
be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
payment of the Exercise Price then in effect, the number of shares of stock or
other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11.1 shall
---------- ------------
similarly apply to successive reorganization, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Warrant with respect to the rights and interests of
the Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
11.2 Reclassification, etc. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
----------
7
<PAGE>
11.3 Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.4 Adjustments for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible Stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or other additional stock available by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
the provisions of this Section 11.
----------
11.5 Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
----------
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon
the written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
11.6 No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
----------
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holders of this Warrant against impairment.
12. REGISTRATION RIGHTS. Upon exercise of this Warrant, the Holder shall
-------------------
have and be entitled to exercise, together with all other holders of Registrable
Securities possessing registration rights under the GSI Stock Purchase
Agreement, the rights of registration granted under the GSI Stock Purchase
Agreement to Registrable Securities (with respect to the shares of GSI Common
Stock issued on exercise of this Warrant). By its receipt of this Warrant,
Holder agrees to be bound by the Agreement upon exercise of this Warrant as a
party thereto.
8
<PAGE>
13. GOVERNING LAW. The terms and conditions of this Warrant shall be
-------------
governed by and construed in accordance with New York law, except that body of
law relating to choice of laws.
14. MISCELLANEOUS. The headings in this Warrant are for purposes of
-------------
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be mailed by
first-class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who shall
have furnished an address to the Company in writing.
IN WITNESS WHEREOF, GST Telecommunications, Inc. has caused this
Warrant to be executed by its officer thereunto duly authorized.
Dated: September 30, 1997
GST TELECOMMUNICATIONS, INC.
By: /s/ Clifford V. Sander
-----------------------
Name: Clifford V. Sander
Title: Senior Vice President,
Treasurer & Chief Accounting
Officer
9
<PAGE>
NOTICE OF EXERCISE
To: GST Telecommunications, Inc.
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of GST Telecommunications, Inc., pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price for such shares in
full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of the Common Stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of Common Stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of Tomen America Inc. [OR IN SUCH OTHER NAME AS IS
SPECIFIED BELOW:
---------------------------
(NAME)
---------------------------
(NAME)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of Tomen America Inc. [OR IN SUCH OTHER NAME AS IS SPECIFIED
BELOW:
---------------------------
(NAME)
TOMEN AMERICA INC.
Date: By:
Name:
Title:
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
and does hereby irrevocably constitute and appoint Attorney ____________________
__________ to make such transfer on the books of GST Telecommunications, Inc.,
maintained for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will not
offer, sell or otherwise dispose of this Warrant or any shares of stock to be
issued upon exercise hereof except under circumstances which will not result in
a violation of the Securities Act of 1933, as amended, or any state securities
laws. Further, the Assignee has acknowledged that upon exercise of this
Warrant, the Assignee shall, if requested by the Company, confirm in writing, in
a form satisfactory to the Company, that the shares of stock so purchased are
being acquired for investment and not with a view toward distribution or resale.
Dated:
------------------------
---------------------------------
Signature of Holder
<PAGE>
EXHIBIT 17
POWER OF ATTORNEY
-----------------
The undersigned, on behalf of Tomen Corporation, hereby constitutes and
appoints Hajime Kawamura and Daizo Nakano, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to act for it and in its name, place and stead, in any way in
which it could act, in all capacities, granting full power and authority to them
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully, to all intents and purposes, as it
might or could do, with respect to all matters in any way relating to the
preparation, execution and filing with the Securities and Exchange Commission of
a Schedule 13D, with all exhibits thereto and other documents in connection
therewith, and all filings with securities exchanges, including without
limitation, the Vancouver Stock Exchange and the American Stock Exchange,
relating to the Common Stock of GST Telecommunications, Inc., a Canadian
corporation, together with all amendments thereto.
Date: April 14, 1997
TOMEN CORPORATION
By: /s/ Morihiko Tashiro
------------------------------------
Name: Morihiko Tashiro
Title: Managing Director
Electronics & Telecommunications
Division
