Contract
Exhibit
4.2
THIS
WARRANT AND ANY INTEREST ISSUABLE UPON THE EXERCISE OF THIS WARRANT ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AND CONDITIONS SET FORTH IN THE AMENDED
AND
RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF APRIL 13, 2005, BY
AND
AMONG THE MEMBERS OF NEXTWAVE WIRELESS LLC. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED FROM NEXTWAVE WIRELESS AT ITS PRINCIPAL EXECUTIVE OFFICES. ANY
TRANSFEREE OF THIS WARRANT OR ANY INTEREST ISSUABLE UPON EXERCISE OF THIS
WARRANT SHALL BE DEEMED TO AGREE TO BE BOUND BY THE TERMS OF THE
AGREEMENT.
THIS
WARRANT AND ANY INTEREST ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER THIS
WARRANT NOR ANY SUCH INTERESTS MAY BE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
WARRANT
To
Purchase Limited Liability Company Interest of
THIS
IS
TO CERTIFY that Station 4, LLC or registered assigns ("Holder"), is entitled
upon the due exercise hereof at any time during the Exercise Period (as
hereinafter defined) to purchase up to Three Million (3,000,000) Interests
(as
defined below) of NextWave Wireless LLC, a Delaware limited liability company,
at the Exercise Price (as hereinafter defined), and to exercise the other
rights, powers and privileges hereinafter provided, all on the terms and subject
to the conditions hereinafter set forth.
ARTICLE
I
DEFINITIONS
The
terms
defined in this ARTICLE I, whenever used in this Warrant, shall have the
respective meanings hereinafter specified.
"Advisory
Services Agreement"
means
the Advisory Services Agreement, with an effective date as of September 1,
2005,
between Station 4, LLC and NextWave Broadband Inc., as the same may be amended
from time to time.
"Commission"
means
the Securities and Exchange Commission or any other Federal agency from time
to
time administering the Securities Act.
"Company"
means
NextWave Wireless LLC, a Delaware limited liability company, and any successor
limited liability company, corporation or partnership.
“Interest”
has
the
meaning set forth in the LLC Agreement, or means the equivalent thereof in
the
event of any reorganization or reclassification of the Interests of the Company
after the effective date of the Advisory Services Agreement, including, without
limitation as provided in Section 11.01 of the LLC Agreement.
"Exercise
Period"
means
the period commencing on the Issue Date and terminating on the fifth anniversary
of that date.
"Exercise
Price"
means
(i) One Dollar ($1.00) of warrant exercise credit (as described in Section
3(a)
of the Advisory Services Agreement) or (ii) One Dollar ($1.00) in cash;
provided, however, if the Holder pays the Exercise Price in cash, the Holder
shall forfeit One Dollar ($1.00) of warrant exercise credit for each One Dollar
($1.00) in cash paid.
"Initial
Holder"
means
Station 4, LLC, the initial holder of this Warrant.
"Issue
Date"
means
September 1, 2005, the initial date of issuance of this Warrant.
"LLC
Agreement"
means
Amended and Restated Limited Liability Company Agreement of NextWave Wireless
LLC dated as of April 13, 2005.
"Notice
of Exercise"
means
the form of Notice of Exercise appearing at the end of this
Warrant.
"Securities
Act"
means
the Securities Act of 1933, as amended, or any successor Federal statute and
the
rules and regulations of the Commission promulgated thereunder, all as the
same
shall be in effect from time to time.
"Warrant"
means
this warrant dated as of the Issue Date issued to the Initial Holder and all
warrants issued upon the partial exercise, transfer or division of or in
substitution for any Warrant.
Whenever
used in this Warrant, any noun or pronoun shall be deemed to include both the
singular and plural and to cover all genders, and the words "herein", "hereof",
and "hereunder" and words of similar import shall refer to this instrument
as a
whole, includ-ing any amendments hereto.
ARTICLE
II
EXERCISE
OF WARRANT
2.1 Manner
of Exercise; Issuance of Interests.
To
exercise this Warrant, the Holder shall deliver to the Company (a) a Notice
of
Exercise in the form attached hereto, duly executed by the holder hereof, (b)
an
amount equal to the aggregate Exercise Price, and (c) this Warrant. If the
Holder elects to pay the Exercise Price in cash, payment of the Exercise Price
shall be made by (a) wire transfer of funds to an account in a bank located
in
the United States designated by the Company for such purpose, or (b) certified
or official bank check payable to the order of the Company and drawn on a member
of the New York Clearing House.
2
Upon
receipt of the required deliveries, the Company shall, as promptly as
practicable, and in any event within five (5) business days thereafter, cause
to
be issued and delivered to the holder hereof or, subject to the provisions
hereof, the transferee designated in the Notice of Exercise, a counterpart
signature page to the LLC Agreement. Upon due execution of such signature page
to the LLC Agreement, the Holder (or such transferee) shall be admitted as
a
Member, having all rights of a Member.
2.2 Compliance
with Securities Laws.
This
Warrant may not be exercised at any time that the issuance of Interests (or
other securities for which this Warrant is then issuable) would not be in
compliance with the Securities Act or any applicable state securities
laws.
2.3 Effectiveness
of Exercise.
Unless
otherwise requested by the Holder, this Warrant shall be deemed to have been
exercised and such admission as a Member shall be deemed to have occurred,
and
the holder or transferee so designated in the Notice of Exercise shall be deemed
to have become a Member for all purposes, as of the close of business on the
first date that the Notice of Exercise, payment of the Exercise Price and this
Warrant have been received by the Company.
2.4 Restrictions
on Transfer.
This
Warrant and all rights hereunder shall be assignable and transferable by the
Holder only pursuant to the transfer provision set forth in the LLC Agreement.
For any transfer permitted in accordance with such provisions, the Holder shall
surrender this Warrant with a properly executed assignment at the principal
offices of the Company (or such other office or agency of the Company as it
may
designate in writing to the Holder).
2.5 Ownership.
The
Company and any agent of the Company may treat the Person in whose name this
Warrant is registered on the register kept at the principal office of the
Company as the owner and Holder hereof for all purposes, notwithstanding any
notice to the contrary. This Warrant, if properly assigned, may be exercised
by
a new holder without first having a new Warrant issued.
ARTICLE
III
CERTAIN
COVENANTS
3.1 Interest.
Notwithstanding any contrary provision of the Agreement, the Interests issuable
upon exercise of this Warrant shall be fully vested upon issuance.
3.2 Transfer
and Exchange.
Upon
full compliance by the Holder with the transfer provisions set forth in the
LLC
Agreement, the Company shall execute and deliver, subject to the provisions
hereof, in the name of the designated transferee or transferees, one or more
new
Warrants representing the right to purchase a like amount of Interests. Whenever
this Warrant is so surrendered for exchange, the Company shall execute and
deliver the Warrants which the holder making the exchange is entitled to
receive.
3
Every
Warrant presented or surrendered for registration of transfer or exchange shall
be accompanied by an Assignment in the form attached hereto, duly executed
by
the holder thereof or its attorney duly authorized in writing and if requested
by the Company, an opinion of counsel that the transfer or exchange is exempt
from registration under the Act.
All
Warrants issued upon any registration of transfer or exchange of Warrants shall
be the valid obligations of the Company, evidencing the same rights, and
entitled to the same benefits, as the Warrants surrendered upon such
registration of transfer or exchange.
3.3 Replacement.
Upon
receipt of evidence reason-ably satisfactory to the Company of the ownership
and
the loss, theft, destruction or mutilation of any Warrant, and in the case
of
any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Company, or, in the case of any such mutilation upon
sur-render of such certificate, the Company shall execute and deliver in lieu
of
such certificate a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, de-stroyed or mutilated certificate.
3.4 Adjustments.
(a)
If
the Company shall, after the Issue Date, adjust by any manner its outstanding
number of Interests into a greater or smaller number of Interests, then the
number of Interests that may thereafter be purchased upon the exercise of this
Warrant must be increased or decreased, as the case may be, in proportion to
the
increase or decrease of Interests, and the Exercise Price must be decreased
or
increased in such proportion.
(b)
In
case of any capital reorganization or reclas-sification or recapitalization
of
the Interests of the Company (including, without limitation, in the case of
a
public offering of the securities of the Company), or in case of the
consolidation or merger of the Company with or into another limited liability
company, corporation, or other entity, or in case of the sale or transfer of
the
property of the Company as an entirety or substantially as an entirety, there
shall thereafter be deliverable upon the exercise of this Warrant or any portion
thereof (in lieu of or in addition to the number of Interests theretofore
deliverable, as appropriate) the number of Interests or other securities or
property which a holder of such number of Interests would have received upon
such event, and at the same aggregate Exercise Price.
3.5 Notices.
In
case
the Company after the Issue Date shall propose to (i) make any distribution
to
the holders of Interests, (ii) offer to the Members rights to subscribe for
or
purchase any additional Interests of any class or any other rights or options,
(iii) effect any event requiring the unanimous consent of the Members, (iv)
effect any reclassification of the Interests, sale of Interests, or any capital
reorganization or any consolidation or merger, or any sale, transfer or other
disposition of its property, assets and business as an entirety or substantially
as an entirety, or the liquidation, dissolution or winding up of the Company
(“Reorganization”), or (v) conduct an initial public offering of any of its
securities, then, in each such case, the Company shall mail to the holder of
this Warrant notice of such proposed action setting forth all material
information relating to the proposed event. Such notice shall be mailed, at
least ten (10) days prior to the record date for determining holders (x) for
purposes of receiving such payment or offer or (y) entitled to vote, or entitled
to approve or participate in such Reorganization.
4
3.6 No
Impairment or Amendment.
The
Company will (a) take all such other action as may be necessary or appropriate
in order that the Company may validly issue fully paid and nonassessable
Interests upon the full exercise of this Warrant and (b) obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant; provided, however, that the Company shall not
be
required to effect a registration under the Securities Act or any state
securities laws to permit issuance of the Interests issuable upon exercise
of
this Warrant.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
The
Company hereby represents and warrants to the Initial Holder and each subsequent
Holder of this Warrant that as of the Issue Date:
4.1 Organization
and Capitalization of the Company.
The
Company is a limited liability company duly organized, validly existing and
in
good standing under the laws of the State of Delaware. There is only one class
of Interests outstanding for the Company.
4.2 Authority.
The
Company has full power and authority to execute and deliver this Warrant and
to
perform all of its obligations hereunder, and the execution, delivery and
performance hereof have been duly authorized by all necessary company action
on
its part. This Warrant has been duly executed on behalf of the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms.
4.3 No
Legal Bar.
None of
the execution, delivery or performance of this Warrant will (a) conflict
with or result in a violation of the certificate of formation of the Company
or
the LLC Agreement, (b) conflict with or result in a violation of any law,
statute, regulation, order or decree applicable to the Company, (c) require
any consent or authorization or filing with, or other act by or in respect
of,
any governmental authority, or (d) result in a breach of, constitute a
default under or constitute an event creating rights of acceleration,
termination or cancellation under any mortgage, lease, contract, franchise,
instrument or other agreement to which the Company is a party or by which it
is
bound.
5
ARTICLE
V
VESTING
5.1 Vesting
Schedule.
Notwithstanding anything herein to the contrary except as otherwise set forth
in
this Article V, the rights to purchase the Interests set forth in this Warrant
shall vest in accordance with the following provisions, and the Holder shall
be
entitled to exercise this Warrant only as to that portion of the Interests
as to
which Holder's rights shall have vested:
(a) On
the
date hereof, Holder shall be fully vested in its rights to purchase one-third
of
the Interests that are subject to this Warrant;
(b) On
the
first anniversary of the date hereof, Holder shall be fully vested in its rights
to purchase two-thirds of the Interests that are subject to this Warrant;
and
(c) On
the
second anniversary of the date hereof, Holder shall be fully vested in its
rights to purchase one hundred percent (100%) of the Interests that are subject
to this Warrant.
5.2 Acceleration
of Vesting.
Holder
shall immediately and automatically fully vest in its rights to purchase 100%
of
the Interests that are subject to this Agreement upon the occurrence of any
of
the following events:
(a)
there
shall be a Change in Control (as defined in the Advisory Services Agreement)
of
the Company; or
(b)
the
Advisory Services Agreement shall be terminated by either party thereto for
any
reason whatsoever other than a termination by the Company of the Advisor for
Cause (as defined in the Advisory Services Agreement) or a termination by the
Advisor absent a failure of the Company to perform its obligations
thereunder.
5.3 Termination
of Vesting.
Holder
shall not be entitled to vest in any further rights hereunder following a
termination of the Advisory Services Agreement by the Company for Cause or
a
termination of the Advisory Services Agreement by the Advisor absent a failure
of the Company to perform its obligations thereunder; however, Holder shall
retain all rights to acquire Interests as to which Holder has previously
vested.
ARTICLE
VI
MISCELLANEOUS
6.1 Nonwaiver.
No
course of dealing or any delay or failure to exercise any right, power or remedy
hereunder on the part of the holder hereof shall operate as a waiver of or
otherwise prejudice such holder's rights, powers or remedies.
6.2 Holder
Not a Member.
Prior
to the exercise of this Warrant, the Holder shall not be entitled to any of
the
rights of a Member including, without limitation, the right as a Member to
(a)
vote on or consent to any proposed action of the Company or (b) attend any
meetings of Members of the Company.
6
6.3 Notices.
Any
notice, demand or delivery to be made pursuant to the provisions of this Warrant
shall be sent as provided in Section 11.06 of the LLC Agreement, addressed
to
(a) the Holder, c/o Xxxx Xxxxxxxxxx, at 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or (b) the Company at its principal office, 00 Xxxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxx, Esq. A
copy
of any notice given by Holder to the Company shall simultaneously be given
by
the Holder to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxx, Esq. A copy of any notice given by the
Company to Holder shall simultaneously be given by the Company to Xxxxxxxxxx
Xxxxx & Xxxxxx P.C., 000 00xx
Xxxxxx,
00xx
Xxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxxx, Esq. The holder of this
Warrant and the Company may each designate a different address by notice to
the
other pursuant to this Section 6.3.
6.4 Like
Tenor.
All
Warrants shall at all times be identical, except as to the preamble thereof
and
hereof.
6.5 Successors
and Assigns.
This
Warrant and the rights evidenced hereby shall inure to the benefit of and be
binding upon the successors and assigns of the Company and the holder
hereof.
6.6 Modification
and Severability.
If, in
any action before any court or agency legally empowered to enforce any provision
contained herein, any provision hereof is found to be unenforceable, then such
provision shall be deemed modified to the extent necessary to make it
enforceable by such court or agency. If any such provision is not durable as
set
forth in the preceding sentence, the unenforceability of such provision shall
not affect the other provisions of this Agreement, but this Agreement shall
be
construed as if such unenforceable provision had never been contained
herein.
6.7 Amendment.
This
Warrant may not be modified or amended except by written agreement of the
Company and the holder hereof.
6.8 Headings.
The
headings of the Articles and Sections of this Warrant are for the convenience
of
reference only and shall not, for any purpose, be deemed a part of this
Warrant.
7
6.9 Governing
Law.
This
Warrant shall be governed by the laws of the State of New York.
Dated
as
of _______________, 2005.
a
Delaware limited liability company
By:
Name:
Title:
ASSIGNMENT
FORM
(To
be
executed only upon the assignment
of
the
within Warrant)
FOR
VALUE
RECEIVED, the undersigned registered holder of the within Warrant hereby sells,
assigns and transfers unto _______________, whose address is
________________________ _____________ all of the rights of the undersigned
under the within Warrant, with respect to Interests of NextWave Wireless, LLC
(the "Company") and, if such Interests shall not include all the Interests
issuable as provided in the within Warrant, that a new Warrant of like tenor
for
the Interests not being purchased hereunder be issued in the name of and
delivered to the undersigned, and does hereby irrevocably constitute and appoint
___________________ Attorney to register such transfer on the books of the
Company maintained for the purpose, with full power of substitution in the
premises.
Dated:
Signature
Guaranteed: By:
(Signature
of Registered Holder)
________________________________
By:
Title:
NOTICE:The
signature to this Assignment must correspond with the name as written upon
the
face of the within Warrant in every particular, without alteration or
enlargement or any change whatever.
8
|
The
signature to this Assignment must be guaranteed by a commercial bank
or
trust company in the United States or a member firm of the New York
Stock
Exchange.
|
NOTICE
OF EXERCISE FORM
(To
be
executed only upon partial or full
exercise
of the within Warrant)
The
undersigned registered holder of the within Warrant irrevocably exercises the
within Warrant for and purchases ____ Interests of NextWave Wireless LLC and
herewith makes payment therefor in the amount of the Exercise Price, all at
the
price and on the terms and conditions specified in the within Warrant, and
requests that a certificate for the Interests of NextWave Wireless LLC hereby
purchased be issued in the name of and delivered to (choose one) (a) the
undersigned or (b) __________________, whose address is ____________________,
and, if such Interests shall not include all the Interests issuable as provided
in the within Warrant, that a new Warrant of like tenor for the Interests not
being purchased hereunder be issued in the name of and delivered to the
undersigned.
Dated:
___________, ____
By:______________________________________
(Signature
of Registered Holder)
Signature
Guaranteed:
_______________________
By:____________________
[Title:]
| NOTICE: | The signature to this Notice of Exercise must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatever. |
|
The
signature to this Notice of Exercise must be guaranteed by a commercial
bank or trust company in the United States or a member firm of the
New
York Stock Exchange.
|
