EXHIBIT 4.5
U.S. WIRELESS CORPORATION
and
---------------------,
as Warrant Agent
FORM OF
WARRANT AGREEMENT
Dated as of ____________
Table of Contents
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
Section 1.01. Issuance of Warrants............................................................................2
Section 1.02. Execution and Delivery of Warrant Certificates..................................................2
Section 1.03. Issuance of Warrant Certificates................................................................4
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Warrant Price...................................................................................4
Section 2.02. Duration of Warrants............................................................................4
Section 2.03. Exercise of Warrants............................................................................4
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.01. No Rights as Warrant Securityholders Conferred by Warrants or Warrant Certificates..............6
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.......................................6
Section 3.03. Holder of Warrant Certificate May Enforce Rights................................................6
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.01. Exchange and Transfer of Warrant Certificates...................................................7
Section 4.02. Treatment of Holders of Warrant Certificates....................................................7
Section 4.03. Cancellation of Warrant Certificates............................................................8
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent...................................................................................8
Section 5.02. Conditions of Warrant Agent's Obligations.......................................................8
Section 5.03. Resignation and Appointment of Successor.......................................................10
Section 5.04. Payment of Taxes...............................................................................11
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Amendment......................................................................................11
Section 6.02. Notices and Demands to the Company and Warrant Agent...........................................11
Section 6.03. Addresses......................................................................................11
Section 6.04. Applicable Law.................................................................................11
Section 6.05. Delivery of Prospectus.........................................................................11
Section 6.06. Obtaining of Governmental Approvals............................................................12
Section 6.07. Persons Having Rights under Warrant Agreement..................................................12
Section 6.08. Headings.......................................................................................12
Section 6.09. Counterparts...................................................................................12
Section 6.10. Inspection of Agreement........................................................................12
Section 6.11. Adjustment of Number of [Preferred Stock] [Shares of Common Stock]; Notices....................12
Section 6.12. Fractional Shares..............................................................................18
THIS WARRANT AGREEMENT dated as of _____________ between U.S. Wireless
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company") and _____________, a
______________ organized and existing under the laws of _________________, as
Warrant Agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time,
either jointly or separately, certain of its (i) senior debt securities (the
"Senior Debt Securities"), and/or (ii) subordinated debt securities (the
"Subordinated Debt Securities", and, together with the Senior Debt Securities,
the "Debt Securities"), and/or (iii) preferred stock, par value $.01 (the
"Preferred Stock"), and/or (iv) common stock, par value $.01 per share (the
"Common Stock"), and/or (v) warrants (the "Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock, and/or (vi) units consisting of two
or more of the foregoing securities (the "Units) in one or more offerings on
terms determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No. 333- ),
including a prospectus, relating to the securities described above and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"); and
[If Debt Securities - WHEREAS, the Company has entered into an senior
indenture dated as of _____________ (the "Senior Indenture"), with
______________________________, as trustee (such trustee, and any successor to
such trustee, to be herein called the "Trustee"), and a subordinated indenture
dated as of ____________ (the "Subordinated Indenture and together with the
Senior Indenture, the "Indenture"), with ______________________________, as
Trustee, providing for the issuance from time to time of its [Senior]
[Subordinated] Debt Securities to be issued in one or more series as provided in
the Indenture; and]
[If Preferred Stock - WHEREAS, the Company has established a series of
Preferred Stock in accordance with the terms of the Certificate of Vote of
Directors Establishing a Series of a Class of Stock relating to such Preferred
Stock (the "Certificate of Vote"); and]
[If Warrants attached - WHEREAS, the Company proposes to sell the [Debt
Securities] [Preferred Stock] [Common Stock] now being offered (the "Offered
Securities" ) with warrant certificates evidencing one or more warrants (the
"Warrants" or, individually, a "Warrant") representing the right to purchase the
[Debt Securities] [Preferred Stock] [Common Stock] purchasable through exercise
of the Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and]
[If Warrants alone - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [Debt Securities][Preferred
Stock][Common Stock] purchasable through exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Warrant Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
Section 1.01. Issuance of Warrants. [If Offered Securities with Warrants
Attached] - Warrants shall be [initially] issued in connection with the issuance
of the Offered Securities [but shall be separately transferable on and after
____________ (the "Detachable Date")][and shall not be separately transferable].
Warrant Certificates shall be [initially] issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
________ Warrants for each [share of Offered Securities] [$________ principal
amount of Offered Securities or its equivalent in a foreign currency or
composite currency] included in such unit.] [If Warrants alone - Upon issuance
each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase [________ shares of Warrant Securities] [a
Warrant Security in the principal amount of $_________ or its equivalent in a
foreign currency or composite currency].
Section 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated as of
its issue date and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant Certificates may be listed or authorized for trading, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by its
Chairman of the Board, the Chief Executive Officer, President, Chief Financial
Officer and Treasurer, Executive Director, Global Treasury or Comptroller, and
attested by its Clerk or any of its Assistant Clerks, under its corporate seal.
Such signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company, and
any Warrant Certificate may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Warrant Certificate, shall be
the proper officers of the Company, although at the date of the execution of
this Agreement any such person was not such officer.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _________], without charge to the holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
[If bearer Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Offered Securities with Warrants
which are not immediately detachable, prior to the Detachable Date, the [bearer]
[registered owner] of the Offered Security to which such Warrant Certificate was
initially attached, and after such Detachable Date] the bearer of such Warrant
Certificate.]
[If registered Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Offered Securities with Warrants which are
not immediately detachable - or upon the register of the Offered Securities
prior to the Detachable Date.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date.]
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates evidencing
the right to purchase [___ shares] [an aggregate principal amount not exceeding
$_________] of Warrant Securities or its equivalent in a foreign currency or
composite currency (except as provided in Sections 2.03(c), 3.02 and 4.01) may
be executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right to purchase [____ shares] [up to $___________ aggregate principal amount]
of Warrant Securities or its equivalent in a foreign currency or composite
currency and shall deliver such Warrant Certificates to or upon the order of the
Company. Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates [If registered Warrants - or in connection
with their transfer], as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Warrant Price. [On __________, ] the exercise price of each
Warrant is [$]___________. [During the period from __________ through and
including _________, the exercise price of each Warrant will be [$]________ plus
[accreted original issue discount] [accrued interest] from ________. On
_________, the exercise price of each Warrant will be [$]_________. During the
period from ____________, through and including __________, the exercise price
of each Warrant will be [$]_______________ plus [accreted original issue
discount] [accrued interest] from ___________; [in each case the original issue
discount will be accreted at a __% annual rate, computed on a [semiannual]
[annual] basis using a 360-day year consisting of twelve 30-day months;] [in
each case accrued interest will be computed at a rate equal to __%]]. Such
purchase price of Warrant Securities may be denominated in U.S. dollars or its
equivalent in a foreign currency or composite currency and may be determined in
reference to an index and is referred to in this Agreement as the "Warrant
Price." [The original issue discount for each $1,000 principal amount of Warrant
Securities (or its equivalent thereof in a foreign currency or composite
currency) is [$]_____________.]
Section 2.02. Duration of Warrants. Each Warrant evidenced by a Warrant
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [_____________] and at or before the close of business
on _____________ (the "Expiration Date"). Each Warrant not exercised at or
before the close of business on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant and
under this Agreement shall cease.
Section 2.03. Exercise of Warrants. During the period specified in Section 2.02,
any whole number of Warrants, if the Warrant Certificate evidencing the same
shall have been countersigned by the Warrant Agent, may be exercised by
providing certain information set forth on the reverse side of the Warrant
Certificate and by paying in full, [in cash or by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised, to
the Warrant Agent at its corporate trust office, ____________________ [or at
________________________], provided that such exercise is subject to receipt
within five Business Days (as defined in Section 6.11(f) hereof) of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the Company by
telephone at the end of each day on which a [payment] [wire transfer] for the
exercise of Warrants is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephonic advice to the Company in
writing.
(a) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company [and the Trustee under the Indenture] of the number of
Warrants exercised in accordance with the terms and conditions of this Agreement
and the Warrant Certificates, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company
[or the Trustee] shall reasonably require.
(b) As soon as practicable after the exercise of any Warrant or Warrants, the
Company shall issue[, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant or Warrants,] the Warrant Security or Warrant Securities to which such
holder is entitled, in fully registered form, registered in such name or names
as may be directed by such holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver to or upon the order of such holder, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(c) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer involved
in the issue of the Warrant Securities; and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any Warrant
Securities until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.01. No Rights as Warrant Securityholders Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any,) or interest, if any, on the Warrant Securities or to enforce any of the
covenants in the Indenture].
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and of indemnity reasonably satisfactory to them and, in
the case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants. Upon the issuance of
any new Warrant Certificate under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Warrant Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Warrant Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, [the Trustee,] the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrant or Warrants
evidenced by his Warrant Certificate in the manner provided in his Warrant
Certificate and in this Warrant Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.01. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable or Warrants alone -
Upon] [If Offered Securities with Warrants which are not immediately detachable
- Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purposes of effecting or in
conjunction with an exchange or transfer of such Offered Security. On or prior
to the Detachable Date, each transfer of the Offered Security on the register of
the Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent or [__________], Warrant Certificates may be
exchanged for other Warrant Certificates in denominations evidencing Warrants,
each Warrant entitling the holder thereof to purchase [_____ shares]
[$_____________ principal amount of Warrant Securities or its equivalent in a
foreign currency or composite currency] at the Warrant Price [If registered
Warrants - or may be transferred in whole or in part] [If bearer or registered
Warrants - provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered.] [If
registered Warrants - The Warrant Agent shall keep, at its corporate trust
office [or at __________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates in
accordance with Section 1.02 and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or at ______] for transfer, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Warrant Agent.] No service charge
shall be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that may be imposed in connection with any such
exchange or transfer. Whenever any Warrant Certificates are so surrendered for
exchange or transfer an authorized officer of the Warrant Agent shall
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company,
as so requested. The Warrant Agent shall not be required to effect any exchange
or transfer which will result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant. All Warrant Certificates issued upon any exchange or transfer of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Warrant
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
Section 4.02. Treatment of Holders of Warrant Certificates. [If Offered
Securities with bearer Warrants which are not immediately detachable - Subject
to Section 4.01, each] [If Offered Securities with bearer Warrants which are
immediately detachable or bearer Warrants alone - Each] Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent and
all other persons dealing with such bearer as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.] [If
registered Warrants alone or registered Warrants which are not immediately
detachable - Every holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the Warrant Certificate
is transferred on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company and the Warrant Agent may
treat the registered holder as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
Section 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, transfer or exercise of the Warrants evidenced thereby
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Warrant Agreement, no Warrant Certificate shall be
issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver
to the Company from time to time or otherwise dispose of cancelled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent. The Company hereby appoints ____________ as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth; and ____________
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees to pay the Warrant
Agent promptly the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability, or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim or liability in the premises.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrants, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
with any of the owners or holders of the Warrants.
(c) Documents. The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in reliance upon
any Warrant Certificates, notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(d) Certain Transactions. The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, any Warrants,
with the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may engage
or be interested in any financial or other transaction with the Company and may
act on, or as depositary, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall
be deemed to prevent the Warrant Agent from acting as Trustee under the
Indenture.]
(e) No Liability for Interest. The Warrant Agent shall not be under any
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Warrant Agreement or of the Warrants.
(f) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of any of the Warrants.
(g) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates contained (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(h) No Implied Obligations. The Warrant Agent shall be obligated to perform such
duties as are herein and in the Warrant Certificates specifically set forth and
no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
Section 5.03. Resignation and Appointment of Successor. The Company agrees, for
the benefit of the holders from time to time of the Warrant Certificates, that
there shall at all times be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(a) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation will become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent hereunder may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligations
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(b) In case at any time the Warrant Agent shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable Federal or State bankruptcy law or
similar law or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any substantial part of its
property or assets, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or of all or any
substantial part of its property or assets shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions of Title
11 of the United States Code, as now constituted or hereafter amended, or under
any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, it shall be disqualified from serving as Warrant Agent and a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by
the successor Warrant Agent of such appointment, the Warrant Agent so
disqualified shall cease to be Warrant Agent hereunder.
(c) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without
further act, deed or conveyance, shall become vested with all authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such predecessor,
upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to transfer, deliver and pay over, and such successor Warrant
Agent shall be entitled to receive, all monies, securities and other property on
deposit with or held by such predecessor, as Warrant Agent hereunder.
(d) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Warrant Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 5.04. Payment of Taxes. The Company will pay all stamp and other duties,
if any, to which, under the laws of the United States of America, this Warrant
Agreement or the original issuance of the Warrant Certificates may be subject.
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Amendment. This Warrant Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Warrant Agreement as the
Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
Section 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice of demand to
the Company.
Section 6.03. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Warrant Agreement shall be addressed to
_____________, Attention: ____________, and any communications from the Warrant
Agent to the Company with respect to this Warrant Agreement shall be addressed
to U.S. Wireless Corporation, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
Section 6.04. Applicable Law. The validity, interpretation and performance of
this Warrant Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York.
Section 6.05. Delivery of Prospectus. The Company will furnish to the Warrant
Agent sufficient copies of a prospectus relating to the Warrant Securities
deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise, a Prospectus.
Section 6.06. Obtaining of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under United States Federal and State laws (including,
without limitation, maintenance of the effectiveness of a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement. Nothing in this
Warrant Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements in this Warrant Agreement contained shall be for the
sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the holders of the Warrant Certificates.
Section 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Warrant Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.09. Counterparts. This Warrant 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 6.10. Inspection of Agreement. A copy of this Warrant Agreement shall be
available at all reasonable times 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 6.11. Adjustment of Number of [Preferred Stock] [Shares of Common
Stock]; Notices. The number of [Preferred Stock] [shares of Common Stock]
purchasable upon the exercise of each Warrant (the "Exercise Rate") is subject
to adjustment from time to time as provided in this Section or as may otherwise
be provided in an amendment hereto, subject to Section 6.01 hereof.
(a) Dividends or Distributions in [Preferred Stock] [Shares of Common Stock]. In
case the Company shall pay or make a dividend or other distribution on [any
class or series of Preferred Stock for which Warrants may be exercised] [its
Common Stock] in [such Preferred Stock] [shares of its Common Stock], the
Exercise Rate in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Exercise Rate by a
fraction of which the numerator shall be the number of shares of [such Preferred
Stock] [Common Stock] outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of [Preferred Stock] [Common Stock] at
any time outstanding shall not include shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on
shares of [Preferred Stock] [Common Stock] held in the treasury of the Company.
(b) Rights or Warrants. In case the Company shall issue rights or warrants to
all holders of [a class or series of its Preferred Stock for which Warrants may
be exercised] [shares of its Common Stock] entitling them to subscribe for or
purchase shares of [such Preferred Stock] [Common Stock] at a price per share
less than the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Stock] [Common Stock] on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, the Exercise Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Exercise Rate by a fraction of which the numerator shall be the number of
shares of [such Preferred Stock] [Common Stock] outstanding at the close of
business on the date fixed for such determination plus the number of shares of
[such Preferred Stock] [Common Stock] which the aggregate of the offering price
of the total number of shares of [such Preferred Stock] [Common Stock] so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of [such Preferred Stock]
[Common Stock] outstanding at the close of business on the date fixed for such
determination plus the number of shares of [such Preferred Stock] [Common Stock]
so offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (b), the number of
shares of [Preferred Stock] [Common Stock] at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of [Preferred Stock] [Common Stock]. The Company will not issue any rights or
warrants in respect of shares of [Preferred Stock] [Common Stock] held in the
treasury of the Company.
(c) Subdivision or Combination. In case outstanding shares of [a class or series
of its Preferred Stock for which Warrants are exercisable] [Common Stock] shall
be subdivided into a greater number of shares of [such Preferred Stock] [Common
Stock], the Exercise Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of [a
class or series of its Preferred Stock for which Warrants are exercisable]
[Common Stock] shall each be combined into a smaller number of shares of [such
Preferred Stock] [Common Stock], the Exercise Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) Dividend or Distribution of Assets. In case the Company shall, by dividend
or otherwise, distribute to all holders of [a class or series of its Preferred
Stock for which Warrants are exercisable] [shares of its Common Stock] evidences
of its indebtedness or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section, any dividend or
distribution paid in cash out of the retained earnings of the Company and any
dividend or distribution referred to in paragraph (a) of this Section), the
Exercise Rate shall be adjusted so that the same shall equal the price
determined by dividing the Exercise Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section) of [such Preferred Stock] [Common Stock] on the date fixed for
such determination less the then fair-market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Warrant Agent and any other Registrar) of the portion
of the assets or evidences of indebtedness so distributed applicable to one
share of [such Preferred Stock] [Common Stock] and the denominator shall be such
current market price per share of [such Preferred Stock] [Common Stock], such
adjustment to become effective immediately prior to the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such distribution.
(e) Reclassification. The reclassification of [a class or series of its
Preferred Stock for which Warrants are exercisable] [the Company's Common Stock]
into securities other than such [Preferred Stock] [Common Stock] (other than any
reclassification upon a consolidation or merger to which paragraph (1) of this
Section applies) shall be deemed to involve a distribution of such securities
other than such [Preferred Stock] [Common Stock] to all holders of [such
Preferred Stock] [Common Stock] (and the effective date of such reclassification
shall be deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section), and (ii) a
subdivision or combination, as the case may be, of the number of shares of [such
Preferred Stock] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Stock] [Common
Stock] outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "The day upon which such subdivision
becomes effective" or "The day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section).
(f) Current Market Price. For the purpose of any computation under paragraphs
(b) and (d) of this Section, the current market price per share of [Preferred
Stock] [Common Stock] on any date shall be deemed to be the average of the daily
closing prices for the 15 consecutive Business Days selected by the Company
commencing not less than 20 nor more than 30 Business Days before the day in
question. The closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if such [Preferred Stock are] [Common Stock
is] not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which such [Preferred Stock are] [Common Stock
is] listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the Nasdaq National Market or, if such
[Preferred Stock are] [Common Stock is] not listed or admitted to trading on any
national securities exchange or quoted on such Nasdaq National Market, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for the purpose. In the event that no such market trading exists,
the current market price will be determined by three independent nationally
reorganized investment banking firms selected by the Company in such manner as
the Board of Directors deems appropriate. "Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions where Warrants may be surrendered for exercise are authorized or
obligated by law or executive order to close.
(g) Adjustments for Tax Purposes. The Company may make such adjustments in the
Exercise Rate, in addition to those required by paragraphs (a), (b), (c) and (d)
of this Section, as it considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights shall not
be taxable to the recipients.
(h) No Adjustment Below Par Value. Notwithstanding the provisions of this
Section, the Exercise Rate shall not be increased such that the price paid per
share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Rate, for legally issued, fully paid and
nonassessable shares of [Preferred Stock] [Common Stock].
(i) Permitted Distributions. The granting of the right to purchase shares of
[Preferred Stock] [Common Stock] (whether from treasury shares or otherwise),
pursuant to (i) any dividend or interest reinvestment plan or [Preferred Stock]
[Common Stock] purchase plan providing for the reinvestment of dividends or
interest payable on securities of the Company and/or the investment of periodic
optional payments; and (ii) any stock option plans and/or employee benefit or
similar plans shall not be deemed to constitute an issue of rights or warrants
by the Company.
(j) No Adjustments Necessary. No adjustment in the Exercise Rate shall be
required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, provided, however, that any adjustment
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(k) Notice of Adjustment. Whenever the Exercise Rate is adjusted as herein
provided, the Company shall forthwith compute the adjusted Exercise Rate in
accordance herewith and prepare a certificate signed by an officer of the
Company setting forth the adjusted Exercise Rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Warrant Agent and any other Registrar and (ii) cause
a notice stating that such adjustment has been effected and the adjusted
Exercise Rate to be mailed to the holders of Warrants at their last addresses as
they shall appear on the Warrant Register.
(l) Successor Company. In case of any reclassification or change of outstanding
shares of [the class or series of Preferred Stock issuable upon exercise of the
Warrants] [Common Stock] (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger or consolidation of the Company with
one or more other corporations (other than a merger or consolidation in which
the Company is the continuing corporation and which does not result in any
reclassification or change of outstanding shares of [the class or series of
Preferred Stock issuable upon exercise of the Warrants] [Common Stock]), or in
case of the merger of the Company into another corporation, or in case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the holder of Warrants of each series
then outstanding shall have the right to exercise such Warrant for the kind and
amount of shares of capital stock or other securities and property, including
cash, receivable upon reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of [such class or series of
Preferred Stock] [Common Stock] for which such Warrant might have been exercised
immediately prior to such reclassification, change consolidation, merger, sale
or conveyance. In any such case, the Company, or such successor or purchasing
corporation, as the case may be, shall execute and deliver to the Warrant Agent
a supplemental Warrant Agreement containing provisions to the effect set forth
above and providing further for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) Company to Reserve Capital Securities. The Company shall at all times
reserve and keep available out of the aggregate of its authorized but unissued
shares or its issued shares held in its treasury, or both, for the purpose of
effecting the exercise of the Warrants, such full number of its duly authorized
shares of [Preferred Stock] [Common Stock] as shall from time to time be
sufficient to effect the exercise of all outstanding Warrants.
If any shares of [Preferred Stock] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon exercise, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
The Company covenants that all shares of [Preferred Stock] [Common
Stock] which may be delivered upon exercise of Warrants shall upon delivery be
fully paid and nonassessable by the Company, subject to [ADD APPROPRIATE
DELAWARE LAW PROVISIONS, IF APPLICABLE] and, except for taxes in connection with
the exercise of the Warrants, free from all taxes, liens and charges with
respect to the issue or delivery thereof.
(n) Company to Give Notice of Certain Events. In the event
(1) that the Company shall pay any dividend or make any distribution to the
holders of shares of [Preferred Stock issuable upon exercise of the Warrants]
[Common Stock] otherwise than in cash charged against consolidated net earnings
or retained earnings of the Company and its consolidated subsidiaries or in
[such Preferred Stock] [shares of Common Stock]; or
(2) that the Company shall offer for subscription or purchase, pro rata, to
the holders of [Preferred Stock issuable upon exercise of the Warrants] [Common
Stock] any additional shares of stock of any class or any securities exercisable
for or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares of [the class
or series of Preferred Stock issuable upon the exercise of the Warrants] [Common
Stock] (other than a change in par value, or from par value to no par value, or
from no par combination), or of any merger of consolidation of the Company with,
or merger of the Company into, another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and which does
not result in reclassification or change of outstanding shares of [Preferred
Stock issuable upon exercise of the Warrants] [Common Stock]), or of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least twenty
days (or ten days in any case specified in clause (1) or (2) above) prior to (i)
the record date fixed with respect to any of the events specified in (1) and (2)
above and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly after providing such notice to the Warrant Agent or such
other Registrar a copy of such notice to the holders thereof at their last
addresses as they shall appear upon the Warrant Register. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(o) Company Determination Final. Any determination that the Company or the
Board of Directors must make pursuant to this Section is conclusive.
(p) Warrant Agent's Adjustment Disclaimer. The Warrant Agent has no duty to
determine when an adjustment under this Section should be made, how it should be
made or what it should be. The Warrant Agent has no duty to determine whether a
supplemental warrant agreement under paragraph (l) need be entered into or
whether any provisions of any supplemental warrant agreement are correct. The
Warrant Agent shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon exercise of Warrants.
The Warrant Agent shall not be responsible for the Company's failure to comply
with this Section.
(q) Adjustments and Warrant Certificates. Irrespective of any adjustments in the
number or kind of shares purchasable upon the exercise of the Warrants, Warrant
Certificates theretofore or thereafter issued may continue to express the same
number and kind of shares per Warrant as are stated on the Warrant Certificates
initially issuable pursuant to this Agreement.
(r) Subsequent Event. After an adjustment to the Exercise Rate under this
Section, any subsequent event requiring an adjustment under this Section shall
cause an adjustment to the Exercise Rate as so adjusted.
Section 6.12. Fractional Shares. The Company shall not be required to deliver
fractions of shares of [Preferred Stock] [Common Stock] upon exercises of
Warrants. If more than one Warrant shall be surrendered for exercise at one time
by the same holder, the number of full shares which shall be deliverable upon
exercise thereof shall be computed on the basis of the aggregate of the Warrants
so surrendered instead of any fractional share of [Preferred Stock] [Common
Stock] which would otherwise be issuable upon exercise of any Warrant or
Warrants (or specified portions thereof). The Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price per share of [Preferred Stock] [Common Stock] (as determined
in accordance with Section 6.11(f) or in any other manner prescribed by the
Board of Directors) at the close of business on the last Business Day prior to
the Date of Exercise.]
IN WITNESS WHEREOF, U.S. Wireless Corporation has caused this Warrant
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Clerk or one of
its Assistant Clerks; and ___________________ has caused this Warrant Agreement
to be signed by one of its duly authorized officers, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, all as of the day and year first above written.
U.S. WIRELESS CORPORATION
By
[Warrant Agent]
By
EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants which transferred or exchanged
are not immediately.] unless attached to a detachable:
[Title of Offered Securities]
[Form of Legend if Prior to ________ this
Warrants are not exercised in whole or in part.] Warrant cannot be immediately exercisable:
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
U.S. WIRELESS CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN THE CITY OF NEW YORK ON
-----------.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [owner] to purchase, at any time [after the
close of business on ___________ and] on or before the close of business on
____________, [$]__________ [principal amount] [shares] of [Title of Warrant
Securities] (the "Warrant Securities") of U.S. Wireless Corporation (the
"Company"), issued and to be issued [under the Indenture (as hereinafter
defined)] [by the Company], on the following basis: [on __________,] the
exercise price of each Warrant is [$]_______________, [during the period from
_________ through and including ___________, the exercise price of each Warrant
will be [$]___________ plus [accreted original issue discount] [accrued
interest] from __________, on ______________, the exercise price of each Warrant
will be [$]__________, during the period from __________, through and including
_____________, the exercise price of each Warrant will be [$]________ plus
[accreted original issue discount] [accrued interest] from __________, [in each
case, the original issue discount will be accreted at a _ % annual rate,
computed on a [semiannual] [annual] basis, using a 360-day year consisting of
twelve 30-day months;] [in each case accrued interest will be computed at a rate
equal to __%]] (the "Warrant Price")]. [The original issue discount for each
[$]_________ principal amount of Warrant Securities is [$]__________]. The
[bearer] [owner] may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, in lawful money
of _______, [in cash or by certified check or official bank check or by bank
wire transfer, in each case,] [by bank wire transfer] in immediately available
funds, the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent] or its successor as warrant agent (the "Warrant Agent"),
currently at the address specified on the reverse hereof [or __________,] and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in [denominations
of [$]___________ and any integral multiples thereof] [any number of whole
shares]. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the [registered owner] [bearer]
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ (the "Warrant Agreement"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
[registered owner] [bearer] of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _________________].
[The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued [by the
Company pursuant to the Certificate of Vote applicable to such Warrant
Securities] [under and in accordance with an Indenture dated as of
________________ (the "Indenture"), between the Company and ___________________,
_______________, as trustee (such trustee, and any successor to such trustee, to
be herein called the "Trustee") and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture, including the form of the
Warrant Securities, are on file at the corporate trust office of the Trustee
[and at ________________]].]
[If Offered Securities with bearer Warrants which are not immediately
detachable - Prior to ________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with bearer Warrants which are immediately
detachable or bearer Warrants alone - This Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.
[If Offered Securities with registered Warrants which are not
immediately detachable - Prior to __________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, this [If Offered Securities
with registered Warrants which are immediately detachable or registered Warrants
alone - This] Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ____________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone - After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner]
[bearer] hereof to any of the rights of a registered owner of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.]
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________
U.S. WIRELESS CORPORATION
By
As Warrant Agent:
By
Authorized Signature
