EXHIBIT 4.10
WARRANT AGREEMENT AMENDMENT AND WAIVER
This AMENDMENT TO WARRANT AGREEMENT AND WAIVER is dated as of
March 30, 2000 ("AGREEMENT"), by and between PATHNET, INC. (the "Company"), a
Delaware corporation, and THE BANK OF NEW YORK, warrant agent (with any
successor warrant agent, the "WARRANT AGENT").
WHEREAS, the Company proposes to enter into a reorganization
involving the Company, Pathnet Telecommunications, Inc. ("Pathnet Telecom"), the
existing shareholders of Company, and certain proposed new shareholders of
Pathnet Telecom (the "Reorganization").
WHEREAS, in conjunction with the Reorganization, the Company
and the Warrant Agent desire to amend the Warrant Agreement (the "Warrant
Agreement") dated as April 8, 1998 by and between the Company and the Warrant
Agent pursuant to the terms of this Agreement.
WHEREAS, in conjunction with the Reorganization, the Company
and the Warrant Agent desire to waive certain provisions of the Warrant
Agreement as set out in this Agreement.
WHEREAS, Section 7.01 of the Warrant Agreement provides that
the Company and the Warrant Agent may amend the terms of the Warrant Agreement
and the Warrants, and waivers to departures from the terms of the Warrant
Agreement and Warrants may be given, with the consent of the Requisite Warrant
Holders (as defined in the Warrant Agreement).
WHEREAS, the Requisite Warrant Holders have consented to the
proposed amendments to and waivers of the Warrant Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized terms used herein and not defined
herein shall have the meanings ascribed to such terms in the Warrant Agreement.
ARTICLE II
AMENDMENTS
SECTION 2.01. Effective as of the date hereof, Section 5.01(d)
of the Warrant Agreement shall be amended by inserting, immediately after the
phrase, "(a "Fundamental Transaction")," in the sixth line, the following words:
"(it being understood that a single transaction or series of related
transactions pursuant to which not less than ninety-five percent of the
outstanding shares of capital stock of the Company are exchanged for shares in a
single Affiliate (or any Person who, pursuant to such transaction, will become
such an Affiliate) shall be deemed to be a Fundamental Transaction, and the
Affiliate acquiring such shares shall, for purposes of this clause, be deemed to
be the Surviving Person (as defined below)),".
SECTION 2.02. Subject to, and effective as of, the
consummation of the Reorganization, the date "April 8, 2000" shall be deleted
where it appears in the definition of "Exercise Event" in Section 2.01 of the
Warrant Agreement, and from the two places where it appears in Exhibit A (Form
of Warrant Certificate) to the Warrant Agreement and in each place where such
date is deleted the date "April 30, 2001" shall be inserted.
ARTICLE III
WAIVERS
......... SECTION 3.01. The Company and the Warrant Agent hereby waive
the provisions of Section 2.02(a) of the Warrant Agreement such that the
consummation of the Reorganization will not be deemed to constitute a Change of
Control nor an Exercise Event for the purposes of the Warrant Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. This Agreement shall be governed by and
construed in accordance with the laws of the state of New York.
SECTION 4.02. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 4.03. A copy of this Agreement shall be available
during regular business hours at the principal corporate trust office of the
Warrant Agent, for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
SECTION 4.04. Except as expressly amended or waived by this
Agreement, the Warrant Agreement shall continue unchanged and in full force and
effect.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the day and year first above written.
PATHNET, INC.
By:/s/ X.X. Xxxxxxxx V
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Name:
Title:
THE BANK OF NEW YORK,
Warrant Agent
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
