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EXHIBIT 4.3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO AMERICAN COMMUNICATIONS SERVICES, INC. (THE
"ISSUER"), OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRANSFER AGENT'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING CAUSE
(E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER AND THE
TRANSFER AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE THE
BENEFITS OF A REGISTRATION RIGHTS AGREEMENT DATED AS OF JULY 10, 1997 AMONG THE
COMPANY, BT SECURITIES CORPORATION, ALEX. XXXXX & SONS INCORPORATED AND THE
OTHER PARTIES SIGNATORY
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THERETO, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
THE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE IS PART OF
AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE SHARE OF PREFERRED STOCK AND
ONE WARRANT ENTITLING THE HOLDER THEREOF TO PURCHASE INITIALLY 80.318 SHARES OF
COMMON STOCK, PAR VALUE $.01 PER SHARE, OF AMERICAN COMMUNICATIONS SERVICES
INC., SUBJECT TO AN INCREASE OF 22.645 ADDITIONAL SHARES OF COMMON STOCK. PRIOR
TO THE EARLIEST TO OCCUR OF (A) 90 DAYS AFTER THE ORIGINAL ISSUANCE OF THE UNITS
AND (B) SUCH EARLIER DATE AS MAY BE DETERMINED BY BT SECURITIES CORPORATION, THE
PREFERRED STOCK EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER
WITH, THE WARRANTS.
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CERTIFICATE NUMBER ((CertNo)) 14-3/4% REDEEMABLE PREFERRED STOCK
AMERICAN COMMUNICATIONS SERVICES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE CUSIP ((CUSIPNo))
THIS CERTIFIES THAT ((Name))
IS THE OWNER OF ((ShareNo))
FULLY PAID AND NON-ASSESSABLE SHARES OF THE 14-3/4% REDEEMABLE
PREFERRED STOCK DUE 2008, PAR VALUE OF $1.00 PER SHARE, OF AMERICAN
COMMUNICATIONS SERVICES, INC. (the "Company") transferable on the books of the
Company by the holder hereof in person or by duly authorized attorney upon
surrender of this share certificate properly endorsed. This certificate and the
shares represented hereby are issued and shall be subject to all of the
provisions of the Certificate of Incorporation and Certificate of Designation of
the Company, as filed in the State of Delaware and to all provisions whereof the
holder hereof hereby asserts and is bound. The Certificate is not valid unless
countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile signatures of the duly authorized officers of the
Company
Dated Countersigned and Registered
THE BANK OF NEW YORK
Transfer Agent
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Authorized Signature
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF REGISTRABLE PREFERRED STOCK
Re: Shares of 14-3/4% Redeemable Preferred Stock due 2008 (the "Shares") of
American Communications Services, Inc.
This Certificate relates to ____ Shares held in certificated
form by ______ (the "Transferor").
|_| The Transferor has requested the Transfer Agent by written order to
exchange or register the transfer of one or more certificates representing
Shares.
In connection with such request and in respect of each such
Share, the Transferor does hereby certify that Transferor is familiar with the
Registration Rights Agreement relating to the above captioned Shares and the
restrictions on transfers thereof as provided in Section 10 of such Registration
Rights Agreement, and that the transfer of these Shares does not require
registration under the Securities Act of 1933, as amended (the "Securities Act")
because*:
|_| Such Shares are being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 10 (a)(y)(A) or Section 10(d)(i)(A)
of the Registration Rights Agreement).
|_| Such Shares are being transferred to a qualified institutional
buyer (as defined in Rule 144A under the Securities Act), in reliance on Rule
144A or in accordance with Regulation S under the Securities Act.
|_| Such Shares are being transferred in accordance with Rule 144 under
the Securities Act.
|_| Such Shares are being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A or Rule 144 or Regulation S under the Securities Act. An
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
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[INSERT NAME OF TRANSFEROR]
By:
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Date:
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*Check applicable box.
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Certificate of Transfer
American Communications Services, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with our proposed purchase of shares of 14-3/4%
Redeemable Preferred Stock due 2008, par value $1.00 per share (the
"Securities"), of American Communications Services, Inc. (the "Company"), we
confirm that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act")
and, unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell
or otherwise transfer such Securities while they are Registrable
Preferred Stock within the meaning of the Registration Rights Agreement
to which this certificate is an exhibit only (a) to the Company or any
of its subsidiaries, (b) pursuant to a registration statement which has
been declared effective under the Securities Act, (c) so long as the
Securities are eligible for resale pursuant to Rule 144A, under the
Securities Act, to a person we reasonably believe is a "qualified
institutional buyer" under Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB and to whom notice is given
that the transfer is being made in reliance on Rule 144A, (d) pursuant
to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an "accredited
investor" within the meaning of subparagraphs (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is purchasing for his own
account or for the account of such an "accredited investor," or (f)
pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing
cases to any requirement of law that the disposition of our property or
the property of such investor account or accounts be at all times
within our or their control and to compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply
after the Securities are no longer Registrable Preferred Stock. We
understand that the Securities purchased by us will bear a legend to
the foregoing effect.
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2. We are an "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and we are acquiring the Securities for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment for an
indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an "accredited
investor") as to each of which we exercise sole investment discretion.
4. You and your counsel are entitled to rely upon this letter
and you are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
Very truly yours,
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(Name of Purchaser)
By:
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Date:
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Upon transfer the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
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Address:
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Taxpayer ID Number:
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