Exhibit 4.9
LEAP WIRELESS INTERNATIONAL, INC.
and
__________,
as Warrant Agent
FORM OF
WARRANT AGREEMENT
Dated as of __________, 20__
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............................... 3
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......................................................... 5
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.................. 6
Section 4.02. Treatment of Holders of Warrant Certificates................... 7
Section 4.03. Cancellation of Warrant Certificates........................... 7
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....................... 9
Section 5.04. Payment of Taxes............................................... 10
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............................ 11
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.............................................. 17
THIS WARRANT AGREEMENT dated as of __________ between Leap Wireless
International, Inc., 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) debt securities (the "Debt
Securities"), (ii) shares of preferred stock, par value $.0001 per share (the
"Preferred Stock"), (iii) Preferred Stock represented by depositary shares (the
"Depositary Shares"), (iv) shares of common stock, par value $.0001 per share
(the "Common Stock"), (v) warrants to purchase Debt Securities, Preferred Stock
or Common Stock (the "Warrants"), (vi) rights to purchase Common Stock (the
"Rights"), and/or (vii) 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. 333-45388),
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 indenture
dated as of __________ (the "Indenture"), with __________, as trustee (such
trustee, and any successor to such trustee, to be herein called the "Trustee"),
providing for the issuance from time to time of its 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 or Chief Financial
Officer, 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.
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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
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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
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[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 (i) 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
5
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
6
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
7
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
8
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, however, 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
9
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.
10
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 Leap
Wireless International, Inc., 00000 Xxxxxxx Xxxxxx Xxxxx, 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 and hereof shall be
governed by, and construed in accordance with, the law of the State of New York,
including, without limitation, Section 5-1401 of the New York Obligations Law,
without regard, to the extent permitted by law, to conflicts of laws principles.
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.
11
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.
12
(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
13
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
14
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
15
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
16
(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 Diclaimer. 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
17
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, Leap Wireless International, Inc. 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.
LEAP WIRELESS INTERNATIONAL, INC.
By: ___________________________________
Name:
Title:
[Warrant Agent]
By: ___________________________________
Name:
Title:
18
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 exercisable.] unless attached to a detachable:
[Title of Offered Securities]
[Form of Legend if Prior to __________ this
Warrants are not exercised in whole or in Warrant cannot be immediately
part:] exercisable:
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
LEAP WIRELESS INTERNATIONAL, INC.
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN THE CITY OF NEW YORK ON
__________, 20__.
[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 Leap Wireless International, Inc. (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
A-1
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.]
A-2
[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 __________, 20__
LEAP WIRELESS INTERNATIONAL, INC.
By: __________________________________
Name:
Title:
[Warrant Agent]
By: __________________________________
Name:
Title:
A-3
