Exhibit 4.4
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DEBT WARRANT AGREEMENT*
Dated as of _______, 200_
between
CLEARONE COMMUNICATIONS, INC.
and
[NAME OF DEBT WARRANT AGENT], as
Debt Warrant Agent
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* DETAILS YET TO BE DETERMINED, REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN, SHALL BE DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS
SUPPLEMENT OR SUPPLEMENTS.
TABLE OF CONTENTS
PAGE
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ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION
AND DELIVERY OF DEBT WARRANT CERTIFICATES
SECTION 1.01. Issuance of Debt Warrants.....................................1
SECTION 1.02. Form and Execution of Debt Warrant Certificates...............2
SECTION 1.03. Issuance and Delivery of Debt Warrant Certificates............3
SECTION 1.04. Temporary Debt Warrant Certificates...........................3
SECTION 1.05. Payment of Taxes..............................................4
SECTION 1.06. "Holder"......................................................4
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. Duration of Debt Warrants.....................................4
SECTION 2.02. Exercise of Debt Warrants.....................................4
SECTION 2.03. Expiration Date...............................................6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF DEBT WARRANTS
SECTION 3.01. No Rights as Holder of Underlying Debt Security...............6
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates................................................6
SECTION 3.03. Holder of Debt Warrants May Enforce Rights....................6
SECTION 3.04. Merger, Consolidation, Sale, Transfer or Conveyance...........7
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
SECTION 4.01. [Debt Warrant Register;] Exchange and Transfer of Debt
Warrants....................................................7
SECTION 4.02. Treatment of Holders of Debt Warrant Certificates.............8
SECTION 4.03. Cancellation of Debt Warrant Certificates.....................8
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. Debt Warrant Agent............................................9
SECTION 5.02. Conditions of Debt Warrant Agent's Obligations................9
SECTION 5.03. Compliance with Applicable Laws..............................11
SECTION 5.04. Resignation and Removal; Appointment of Successor............11
SECTION 5.05. Office.......................................................13
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Supplements and Amendments...................................13
SECTION 6.02. Notices and Demands..........................................13
SECTION 6.03. Addresses....................................................14
SECTION 6.04. Governing Law................................................14
SECTION 6.05. Governmental Approvals.......................................14
SECTION 6.06. Persons Having Rights Under Debt Warrant Agreement...........14
SECTION 6.07. Delivery of Prospectus.......................................14
SECTION 6.08. Headings.....................................................14
SECTION 6.09. Counterparts.................................................14
SECTION 6.10. Judgment Currency............................................14
SECTION 6.11. Inspection Of Agreement......................................15
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THIS DEBT WARRANT AGREEMENT, dated as of ____________, between
CLEARONE COMMUNICATIONS, INC., a Utah corporation (the "Company"), and ______, a
_______ organized and existing under the laws of ________, as warrant agent (the
"Debt Warrant Agent").
WHEREAS, the Company has entered into two indentures dated as of
________, 20__, each with The Bank of New York as trustee (the "Trustee"),
providing for the issuance by the Company from time to time, in one or more
series, of debt securities evidencing its unsecured, senior indebtedness (the
"Senior Indenture") and unsecured subordinated indebtedness (the "Subordinated
Indenture") (such debt securities together being referred to as the "Debt
Securities" and the Senior Indenture and the Subordinated Indenture together
being referred to as the "Indentures"); and
WHEREAS, the Company proposes to issue warrants (the "Debt
Warrants") representing the right to purchase Debt Securities of one or more
series (the "Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and
delivery of this Debt Warrant Agreement to provide for the issuance of Debt
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION
AND DELIVERY OF DEBT WARRANT CERTIFICATES
SECTION 1.01. Issuance of Debt Warrants.. Debt Warrants may be issued from
time to time, together with or separately from any other securities of the
Company (the "Offered Securities"). Prior to the issuance of any Debt Warrants,
there shall be established by or pursuant to a resolution or resolutions duly
adopted by the Company's Board of Directors or by any committee thereof duly
authorized to act with respect thereto (a "Board Resolution"):
(a) The title and aggregate number of such Debt Warrants;
(b) The offering price of such Debt Warrants;
(c) The title, aggregate principal amount, ranking and terms
[(including the subordination and conversion provisions)] of the Underlying Debt
Securities that may be purchased upon exercise of such Debt Warrants;
(d) The principal amount of Underlying Debt Securities that may
be purchased upon exercise of each Debt Warrant and the price, or the manner of
determining the price (the "Debt Warrant Price"), at which such principal amount
may be purchased upon such exercise;
(e) The time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the final date on which such Debt
Warrants may be exercised (the "Expiration Date") and whether such Expiration
Date may be postponed by notice sent by the Company to all Holders (as defined
in Section 1.06 hereof) of [the same title of] Debt Warrants in accordance with
the procedures set forth in Section 5.04(e);
(f) The terms of any right to redeem or accelerate such Debt
Warrants;
(g) Whether the warrant certificates evidencing such Debt
Warrants (the "Debt Warrant Certificates") will be issued in registered or
bearer form, and, if registered, where such Debt Warrants may be transferred or
exchanged;
(h) Whether such Debt Warrants are to be issued with any (a) Debt
Securities and, if so, the title, aggregate principal amount and terms of any
such Debt Securities and the number of such Debt Warrants to be issued with each
$1,000 principal amount of such Debt Securities (or such other principal amount
of such Debt Securities as is provided for in the Board Resolution), or (b)
other securities and, if so, the number and terms thereof;
(i) The date, if any, on and after which such Debt Warrants and
such Debt Securities or other securities will be separately transferable (the
"Detachable Date"); and
(j) Any other terms of such Debt Warrants not inconsistent with
the provisions of this Agreement.
SECTION 1.02. Form and Execution of Debt Warrant Certificates..
(a) The Debt Warrants shall be evidenced by the Debt Warrant
Certificates, which shall be substantially in such form or forms as shall be
established by or pursuant to a Board Resolution. Each Debt Warrant Certificate,
whenever issued, shall be dated the date it is countersigned by the Debt Warrant
Agent and may have such letters, numbers or other identifying marks and such
legends or endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law, rule or regulation or with any rule or regulation of any
securities exchange on which the Underlying Debt Securities or Debt Warrants may
be listed, or to conform to usage, as the officer of the Company executing the
same may approve (such officer's execution thereof to be conclusive evidence of
such approval). Each Debt Warrant Certificate shall evidence one or more Debt
Warrants.
(b) The Debt Warrant Certificates shall be signed in the name and
on behalf of the Company by its Chairman, President, Chief Executive Officer or
Chief Financial Officer under its corporate seal, and attested by its Secretary
or an Assistant Secretary or any Vice President (any reference to a "Vice
President" of the Company herein shall be deemed to include any Vice President
of the Company whether or not designated by a number or a word or words added
before or after the title Vice President). Such signatures may be manual or
facsimile signatures of the present or any future holder of any such office and
may be imprinted or otherwise reproduced on the Debt 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 Debt Warrant
Certificates.
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(c) No Debt Warrant Certificate shall be valid for any purpose,
and no Debt Warrant evidenced thereby shall be deemed issued or exercisable,
until such Debt Warrant Certificate has been countersigned by the manual or
facsimile signature of the Debt Warrant Agent. Such signature by the Debt
Warrant Agent upon any Debt Warrant Certificate executed by the Company shall be
conclusive evidence that the Debt Warrant Certificate so countersigned has been
duly issued hereunder.
(d) In the event any officer of the Company who has signed any
Debt Warrant Certificate either manually or by facsimile signature has ceased to
be such officer before the Debt Warrant Certificate so signed has been
countersigned and delivered by the Debt Warrant Agent, such Debt Warrant
Certificate nevertheless may be countersigned and delivered by the Debt Warrant
Agent as though the person who signed such Debt Warrant Certificate had not
ceased to be such officer of the Company; and any Debt Warrant Certificate may
be signed on behalf of the Company by such person as, at the actual date of the
execution of such Debt Warrant Certificate, shall be the proper officer of the
Company, although at the date of the execution of this Agreement such person was
not such an officer.
SECTION 1.03. Issuance and Delivery of Debt Warrant Certificates. At any
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Debt Warrant Certificates executed by the Company to the
Debt Warrant Agent for countersignature. Except as provided in the following
sentence, the Debt Warrant Agent shall thereupon countersign and deliver such
Debt Warrant Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Debt Warrant Certificate evidencing
Debt Warrants, the Debt Warrant Agent shall countersign a new Debt Warrant
Certificate evidencing such Debt Warrants only if such Debt Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Debt Warrant Certificates evidencing such Debt Warrants or in connection with
their transfer, as hereinafter provided.
SECTION 1.04. Temporary Debt Warrant Certificates.
(a) Pending the preparation of definitive Debt Warrant
Certificates, the Company may execute, and upon the order of the Company the
Debt Warrant Agent shall countersign and deliver, temporary Debt Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Debt Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Debt Warrant Certificates may determine, as evidenced by such
officer's execution of such Debt Warrant Certificates.
(b) If temporary Debt Warrant Certificates are issued, the
Company will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent [or
_______], without charge to the Holder (as defined in Section 1.06 hereof). Upon
surrender for cancellation of any one or more temporary Debt Warrant
Certificates, the Company shall execute and the Debt Warrant Agent shall
countersign and deliver in exchange therefor definitive Debt Warrant
Certificates representing the same aggregate number of Debt Warrants. Until so
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exchanged, the temporary Debt Warrant Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Debt Warrant
Certificates.
SECTION 1.05. Payment of Taxes. The Company will pay all stamp and other
similar duties, if any, to which this Agreement or the original issuance of the
Debt Warrants or the Underlying Debt Securities may be subject under the laws of
the United States of America or any state or locality. The Company is not
responsible for the payment of any tax or taxes which may be payable in respect
of the transfer of Debt Warrants or the issue or transfer of Underlying Debt
Securities to a person other than the Holder.
SECTION 1.06. "Holder". The term "Holder" or "Holders", as used herein with
reference to a Debt Warrant Certificate, shall mean [IF REGISTERED DEBT WARRANTS
-- the person or persons in whose name such Debt Warrant Certificate shall then
be registered as set forth in the Debt Warrant Register to be maintained by the
Debt Warrant Agent pursuant to Section 4.01 for that purpose] [IF BEARER DEBT
WARRANTS -- the bearer of such Debt Warrant Certificate] or, in the case of Debt
Warrants that are issued with Debt Securities and cannot then be transferred
separately therefrom, [IF REGISTERED OFFERED SECURITIES AND DEBT WARRANTS THAT
ARE NOT THEN DETACHABLE -- the person or persons in whose name the related
Offered Securities shall be registered as set forth in the security register to
be maintained by the security registrar for such Offered Securities] [IF BEARER
OFFERED SECURITIES AND DEBT WARRANTS THAT ARE NOT THEN DETACHABLE -- of the
related Offered Security], prior to the Detachable Date. [IF REGISTERED OFFERED
SECURITIES AND DEBT WARRANTS THAT ARE NOT THEN DETACHABLE -- The Company will,
or will cause the security registrar of any such Offered Securities to, make
available to the Debt Warrant Agent at all times (including on and after the
Detachable Date, in the case of Debt Warrants originally issued with Offered
Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with Debt Warrants as may be
necessary to keep the Debt Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. Duration of Debt Warrants. Each Debt Warrant may be exercised
at the time or times, or during the period or periods, provided by or pursuant
to the Board Resolution relating thereto and specified in the Debt Warrant
Certificate evidencing such Debt Warrant. Each Debt Warrant not exercised at or
before 5:00 P.M., New York City time, on its Expiration Date shall become void,
unless such Expiration Date has been postponed by notice sent to all Holders of
Debt Warrants as provided in Section 2.03, and all rights of the Holder of such
Debt Warrant thereunder and under this Agreement shall cease.
SECTION 2.02. Exercise of Debt Warrants.
(a) The Holder of a Debt Warrant shall have the right, at its
option, to exercise such Debt Warrant and, subject to subsection (f) of this
Section 2.02, purchase the principal amount of Underlying Debt Securities
provided for therein at the time or times or during the period or periods
referred to in Section 2.01 and specified in the Debt Warrant Certificate
evidencing such Debt Warrant. Except as may be provided in a Debt Warrant
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Certificate, a Debt Warrant may be exercised by completing the form of election
to purchase set forth on the reverse side of the Debt Warrant Certificate, by
duly executing and delivering the same, together with payment in full of the
Debt Warrant Price in lawful money of the United States of America, in cash or
by certified or official bank check or by bank wire transfer, or in property, in
the manner provided by or pursuant to the Board Resolution relating thereto and
specified in the Debt Warrant Certificate evidencing such Debt Warrant, to the
Debt Warrant Agent. Except as may be provided in a Debt Warrant Certificate, the
date on which such Debt Warrant Certificate and payment are received by the Debt
Warrant Agent as aforesaid shall be deemed to be the date on which the Debt
Warrant is exercised and the Underlying Debt Securities issued.
(b) Upon the exercise of a Debt Warrant, the Company shall issue,
pursuant to the Senior Indenture or Subordinated Indenture, as applicable, in
authorized denominations to or upon the order of the Holder of such Debt
Warrant, the Underlying Debt Securities to which such Holder is entitled, in the
form required under such Indenture, registered, in the case of Underlying Debt
Securities in registered form, in such name or names as may be directed by such
Holder.
(c) If fewer than all of the Debt Warrants evidenced by a Debt
Warrant Certificate are exercised, the Company shall execute, and the Debt
Warrant Agent shall countersign and deliver, a new Debt Warrant Certificate
evidencing the number of Debt Warrants remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds received by it
in payment of the Debt Warrant Price in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Debt Warrant Price for
Debt Warrants is received of the amount so deposited in its account. The Debt
Warrant Agent shall promptly confirm such telephone advice in writing to the
Company.
(e) The Debt Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company and the Trustee of (1) the number of Debt
Warrants of each title exercised as provided herein, (2) the instructions of
each Holder with respect to delivery of the Underlying Debt Securities to which
such Holder is entitled upon such exercise, (3) the delivery of Debt Warrant
Certificates evidencing the balance, if any, of the Debt Warrants remaining
unexercised after such exercise, and (4) such other information as the Company
or the Trustee shall reasonably require. Such notice may be given by telephone
to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any
stamp or other tax or other governmental charge that may be imposed in
connection with any issuance or transfer of the Underlying Debt Securities to a
name other than the Holder's; and in the event that any such transfer is
involved, the Company shall not be required to issue any Underlying Debt
Securities (and the Holder's purchase of the Underlying Debt Securities upon the
exercise of such Holder's Debt Warrant shall not be deemed to have been
consummated) 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.
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SECTION 2.03. Expiration Date. If authorized by the relevant Board
Resolution, the Company may postpone the Expiration Date by notice in accordance
with the procedure set forth in Section 5.04(e) sent to all Holders of the same
title of Debt Warrants at least 30 days before the scheduled Expiration Date.
Upon mailing of each notice, the Expiration Date shall be the date specified in
such notice.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF DEBT WARRANTS
SECTION 3.01. No Rights as Holder of Underlying Debt Security. No Debt
Warrant or Debt Warrant Certificate shall entitle the Holder to any of the
rights of a holder of Underlying Debt Securities, including, without limitation,
the right to receive the payment of principal of (or premium, if any) or
interest, if any, on Underlying Debt Securities or to enforce any of the
covenants in the Indentures.
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates. Upon receipt by the Company and the Debt Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Debt Warrant Certificate and of indemnity
(other than in connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation) reasonably satisfactory
to them, the Company shall execute, and the Debt Warrant Agent shall countersign
and deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the issuance of a new Debt
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any stamp or other similar tax or other governmental
charge that may be imposed in connection therewith and any other expenses
(including the fees and expenses of the Debt Warrant Agent) in connection
therewith. Every substitute Debt Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Debt Warrant
Certificate shall represent an enforceable contractual obligation of the
Company, whether or not such lost, stolen or destroyed Debt Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Debt Warrant Certificates, duly executed and delivered hereunder, evidencing
Debt Warrants of the same title. 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 lost, stolen, destroyed or mutilated Debt Warrant
Certificates.
SECTION 3.03. Holder of Debt Warrants May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, a Holder, without the consent of the
Debt Warrant Agent, the Trustee, the holder of any Underlying Debt Securities or
the Holder of any other Debt Warrant, may, on its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect of, its right to
exercise its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
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SECTION 3.04. Merger, Consolidation, Sale, Transfer or Conveyance
(a) The Company shall not consolidate with or merge into any
other individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (each, a "Person") or
convey or transfer its properties and assets substantially as an entirety to any
Person other than in accordance with the applicable Indenture governing the
Underlying Debt Securities. In case of any merger, consolidation or a sale,
transfer or conveyance of the Company, of all or substantially all of its
properties and assets in accordance with the terms of the Indentures, and upon
any assumption of the duties and obligations of the Company by a successor
corporation, such successor corporation shall succeed to all the rights and
obligations of the Company in this Agreement and be substituted for the Company
in this Agreement, with the same effect as if it had been named herein, and the
Company shall be relieved of any further obligation under this Agreement and the
Debt Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Underlying Debt Securities issuable pursuant to the terms hereof. All the
Underlying Debt Securities so issued shall in all respects have the same legal
rank and benefit under the Senior Indenture or the Subordinated Indenture, as
applicable, as the Underlying Debt Securities theretofore or thereafter issued
in accordance with the terms of this Agreement and the Indentures. In case of
any such merger, consolidation, sale, transfer or conveyance in compliance with
the terms of the applicable Indenture governing the Underlying Debt Securities,
such changes in phraseology and form (but not in substance) may be made in the
Underlying Debt Securities thereafter to be issued as may be appropriate.
(b) The Debt Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such merger, consolidation, sale,
transfer or conveyance complies with the provisions of this Section 3.04.
(c) In case of any merger, consolidation, sale, transfer or
conveyance in compliance with the terms of the applicable Indenture governing
the Underlying Debt Securities, the Company and the Debt Warrant Agent may treat
the registered Holder of a Debt Warrant Certificate as the absolute Holder
thereof for any purpose and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
SECTION 4.01. [Debt Warrant Register;] Exchange and Transfer of Debt
Warrants.
(a) [IF REGISTERED DEBT WARRANTS -- The Debt Warrant Agent shall
maintain, at its corporate trust office [or at ________], a register (the "Debt
Warrant Register") in which, upon the issuance of Debt Warrants, or on and after
the Detachable Date in the case of Debt Warrants not separately transferable
prior thereto, and, subject to such reasonable regulations as the Debt Warrant
Agent may prescribe, it shall register Debt Warrant Certificates and exchanges
and transfers thereof. The Debt Warrant Register shall be in written form or in
any other form capable of being converted into written form within a reasonable
time.]
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(b) Except as provided in the following sentence, upon surrender
at the corporate trust office of the Debt Warrant Agent [or at _______], Debt
Warrant Certificates may be exchanged for one or more other Debt Warrant
Certificates evidencing the same aggregate number of Debt Warrants of the same
title, or may be transferred in whole or in part. A Debt Warrant Certificate
evidencing Debt Warrants that are not then transferable separately from the
Offered Security with which they were issued may be exchanged or transferred
prior to its Detachable Date only together with such Offered Security and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security; and on or prior to the Detachable Date, [IF REGISTERED
OFFERED SECURITIES AND DEBT WARRANTS -- each exchange or transfer of such
Offered Security on the security register of the Offered Securities shall
operate also to exchange or transfer the related Debt Warrants] [IF BEARER
OFFERED SECURITIES AND DEBT WARRANTS -- an exchange or transfer of possession of
the related Offered Security shall operate also to exchange or transfer the
related Debt Warrants]. [IF REGISTERED DEBT WARRANTS -- A transfer shall be
registered upon surrender of a Debt Warrant Certificate to the Debt 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 Debt
Warrant Agent.] Whenever a Debt Warrant Certificate is surrendered for exchange
or transfer, the Debt Warrant Agent shall countersign and deliver to the person
or persons entitled thereto one or more Debt Warrant Certificates duly executed
by the Company, as so requested. The Debt Warrant Agent shall not be required to
effect any exchange or transfer which will result in the issuance of a Debt
Warrant Certificate evidencing a fraction of a Debt Warrant. All Debt Warrant
Certificates issued upon any exchange or transfer of a Debt Warrant Certificate
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Debt Warrant
Certificate surrendered for such exchange or transfer.
(c) No service charge shall be made for any exchange or transfer
of Debt Warrants, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. Treatment of Holders of Debt Warrant Certificates. Every
Holder of a Debt Warrant, by accepting the Debt Warrant Certificate evidencing
the same, consents and agrees with the Company, the Debt Warrant Agent and with
every other Holder of Debt Warrants of the same title that the Company and the
Debt Warrant Agent may treat the registered Holder of a Debt Warrant Certificate
(or, if the Debt Warrant Certificate is not then detachable, the Holder of the
related Offered Debt Security) as the absolute owner of such Debt Warrant for
all purposes and as the person entitled to exercise the rights represented by
such Debt Warrant, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Debt Warrant Certificates. In the event that
the Company shall purchase, redeem or otherwise acquire any Debt Warrants after
the issuance thereof, the Debt Warrant Certificate or Certificates evidencing
such Debt Warrants shall thereupon be delivered to the Debt Warrant Agent and be
cancelled by it. The Debt Warrant Agent shall also cancel any Debt Warrant
Certificate (including any mutilated Debt Warrant Certificate) delivered to it
for exercise, in whole or in part, or for exchange [or transfer] [IF DEBT
WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM -- , except that Debt Warrant
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Certificates delivered to the Debt Warrant Agent in exchange for Debt Warrant
Certificates of other denominations may be retained by the Debt Warrant Agent
for reissue]. Debt Warrant Certificates so cancelled shall be delivered by the
Debt Warrant Agent to the Company from time to time, or disposed of in
accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. Debt Warrant Agent. The Company hereby appoints _____________
as Debt Warrant Agent of the Company in respect of the Debt Warrants and the
Debt Warrant Certificates upon the terms and subject to the conditions set forth
herein and ____________________ hereby accepts such appointment. The Debt
Warrant Agent shall have the powers and authority granted to and conferred upon
it 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 any Debt
Warrant Certificate are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. Conditions of Debt Warrant Agent's Obligations. The Debt
Warrant Agent accepts its obligations set forth herein 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 shall be subject:
(a) Compensation and Indemnification. The Company agrees to
promptly pay the Debt Warrant Agent the compensation set forth in Exhibit A
hereto and to reimburse the Debt Warrant Agent for reasonable out-of-pocket
expenses (including counsel fees) incurred by the Debt Warrant Agent in
connection with the services rendered hereunder by the Debt Warrant Agent. The
Company also agrees to indemnify the Debt Warrant Agent for, and to hold it
harmless against, any loss, liability or expense (including the reasonable costs
and expenses of defending against any claim of liability) incurred without
negligence or bad faith on the part of the Debt Warrant Agent arising out of or
in connection with its appointment as Debt Warrant Agent hereunder.
(b) Agent For The Company. In acting under this Agreement and in
connection with any Debt Warrant Certificate, the Debt Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(c) Counsel. The Debt Warrant Agent may consult with counsel
satisfactory to it, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in reliance upon any 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.
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(e) Officer's Certificate. Whenever in the performance of its
duties hereunder the Debt Warrant Agent shall reasonably deem it necessary that
any fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Debt Warrant Agent may (unless
other evidence in respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed by the
Chairman, the President, the Chief Executive Officer, the Chief Financial
Officer, any Vice President, the Controller or the Secretary of the Company (an
"Officer's Certificate") delivered by the Company to the Debt Warrant Agent.
(f) Actions through Agents. The Debt Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the Debt
Warrant Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued
employment of such attorneys and agents.
(g) Certain Transactions. The Debt Warrant Agent, and any
officer, director or employee thereof, may become the owner of, or acquire any
interest in, any Debt Warrant, with the same rights that he, she or it would
have if it were not the Debt Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in any financial or
other transaction with the Company and may serve on, or as depositary, trustee
or agent for, any committee or body of holders of Underlying Debt Securities or
other obligations of the Company as if it were not the Debt Warrant Agent.
Nothing in this Agreement shall be deemed to prevent the Debt Warrant Agent from
acting as Trustee under the Indentures.
(h) No Liability For Interest. The Debt Warrant Agent shall not
be liable for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Debt Warrant Certificates, except
as otherwise agreed with the Company.
(i) No Liability For Invalidity. The Debt Warrant Agent shall
incur no liability with respect to the validity of this Agreement (except as to
the due execution hereof by the Debt Warrant Agent) or any Debt Warrant
Certificate (except as to the countersignature thereof by the Debt Warrant
Agent).
(j) No Responsibility For Company Representations. The Debt
Warrant Agent shall not be responsible for any of the recitals or
representations contained herein (except as to such statements or recitals as
describe the Debt Warrant Agent or action taken or to be taken by it) or in any
Debt Warrant Certificate (except as to the Debt Warrant Agent's countersignature
on such Debt Warrant Certificate), all of which recitals and representations are
made solely by the Company.
(k) No Implied Obligations. The Debt Warrant Agent shall be
obligated to perform only such duties as are specifically set forth herein, and
no other duties or obligations shall be implied. The Debt Warrant Agent shall
not be under any obligation to take any action hereunder that may subject it to
any expense or liability, the payment of which within a reasonable time is not,
in its reasonable opinion, assured to it. The Debt Warrant Agent shall not be
10
accountable or under any duty or responsibility for the use by the Company of
any Debt Warrant Certificate countersigned by the Debt 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 issuance or exercise of Debt Warrants. The
Debt 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 any Debt Warrant Certificate or in case of the receipt of any
written demand from a Holder 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. Compliance with Applicable Laws. The Debt Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Debt Warrant
Agreement and in connection with the Debt Warrants, including (but not limited
to) the provisions of United States federal income tax laws regarding
information reporting and backup withholding. The Debt Warrant Agent expressly
assumes all liability for its failure to comply with such laws imposing
obligations on it, including (but not limited to) any liability for failure to
comply with any applicable provisions of United States federal income tax laws
regarding information reporting and backup withholding.
SECTION 5.04. Resignation and Removal; Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders of Debt
Warrants, that there shall at all times be a Debt Warrant Agent hereunder until
all the Debt Warrants are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such by
giving written notice to the Company, specifying the date on which such
resignation shall become effective; provided that such date shall not be less
than 90 days after the date on which such notice is given, unless the Company
agrees to accept a shorter notice. The Debt Warrant Agent 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. Notwithstanding the two preceding sentences, such resignation or
removal shall take effect only upon the appointment by the Company, as
hereinafter provided, of a successor Debt Warrant Agent (which shall be a bank
or trust company organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under the laws of such jurisdiction to exercise corporate trust powers and
having at the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of condition) of
at least $50,000,000) and the acceptance of such appointment by such successor
Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall:
(1) resign, or shall be removed, or shall become incapable of
acting, or
(2) be adjudged a bankrupt or insolvent, or
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(3) 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 or similar
law, or
(4) make an assignment for the benefit of its creditors, or
consent to the appointment of a receiver or custodian for all or
any substantial part of its property, or
(5) admit in writing its inability to pay or meet its debts
as they mature, or
(6) have a receiver or custodian appointed for it or for all
or any substantial part of its property, or
(7) have an order of any court 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
(8) have any public officer take charge or control of the
Debt Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
a successor Debt Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Debt Warrant
Agent. Upon the appointment as aforesaid of a successor Debt Warrant Agent and
acceptance by the successor Debt Warrant Agent of such appointment, the Debt
Warrant Agent so superseded shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt 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
Debt Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as Debt
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 Debt Warrant Agent shall be entitled to
receive, [the Debt Warrant Register and] all monies, securities and other
property on deposit with or held by such predecessor (together with any books
and records relating thereto), as Debt Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any
successor Debt Warrant Agent to be [IF REGISTERED DEBT WARRANTS -- mailed by
first-class mail, postage prepaid, to each Holder at its address appearing on
the Debt Warrant Register or, in the case of Debt Warrants that are issued with
Offered Securities and cannot then be transferred separately therefrom, on the
security register for the Offered Securities] [IF BEARER DEBT WARRANTS --
published in an Authorized Newspaper (as defined in Section 101 of the
Indentures) in The City of New York [and in such other city or cities as may be
specified by the Company] at least twice within any seven-day period]. Such
notice shall set forth the name and address of the successor Debt Warrant Agent.
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Failure to give any notice provided for in this Section 5.04(e), or any defect
therein, shall not, however, affect the legality or validity of the appointment
of the successor Debt Warrant Agent.
(f) Any corporation into which the Debt Warrant Agent may be
merged or converted, or any corporation with which the Debt Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a party, or any
corporation to which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, shall be the successor Debt
Warrant Agent under this Agreement without the execution or filing of any paper,
the giving of any notice to Holders or any further act on the part of the
parties hereto, provided that such corporation be qualified as provided in
Section 5.04(b) hereof.
SECTION 5.05. Office. The Company will maintain an office or agency where
Debt Warrant Certificates may be presented for exchange [, transfer] or
exercise. The office initially designated for this purpose shall be the
corporate trust office of the Debt Warrant Agent at _______.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Supplements and Amendments.
(a) The Company and the Debt Warrant Agent may from time to time
supplement or amend this Agreement without the approval of any Holder in order
to cure any ambiguity, to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provision herein, or to
make any other provision in regard to matters or questions arising hereunder
that the Company and the Debt Warrant Agent may deem necessary or desirable and
that shall not materially adversely affect the interests of the Holders. Every
Holder of Debt Warrants, whether issued before or after any such supplement or
amendment, shall be bound thereby. Promptly after the effectiveness of any
supplement or amendment that affects the interests of the Holders, the Company
shall give notice thereof, as provided in Section 5.04(e) hereof, to the Holders
affected thereby, setting forth in general terms the substance of such
supplement or amendment.
(b) The Company and the Debt Warrant Agent may modify or amend
this Agreement and the Debt Warrant Certificates with the consent of the Holders
of not fewer than a majority in number of the then outstanding unexercised Debt
Warrants affected by such modification or amendment, for any purpose; provided,
however, that no such modification or amendment that shortens the period of time
during which the Debt Warrants may be exercised, or [affects other material
terms of the Debt Warrants that may be set forth in a prospective supplement] or
reduces the percentage of Holders of outstanding Debt Warrants the consent of
which is required for modification or amendment of this Agreement or the Debt
Warrants, may be made without the consent of each Holder affected thereby.
SECTION 6.02. Notices and Demands. If the Debt Warrant Agent shall receive
any notice or demand addressed to the Company by a Holder pursuant to the
provisions of this Agreement or a Debt Warrant Certificate (other than notices
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relating to the exchange [, transfer] or exercise of Debt Warrants), the Debt
Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses. Any communications from the Company to the Debt
Warrant Agent with respect to this Agreement shall be directed to ____,
Attention:_____________, and any communications from the Debt Warrant Agent to
the Company with respect to this Agreement shall be directed to ClearOne
Communications, Inc., 0000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention:
Chief Executive Officer, with a copy to Xxxxx Xxxxxxx, Xxxxxxxx & Sterling, 0000
Xxxxx Xxxx, Xxxxx Xxxx, XX 00000 (or such other address as shall be specified in
writing by the Debt Warrant Agent or by the Company).
SECTION 6.04. Governing Law. This Agreement and the Debt Warrants shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6.05. Governmental Approvals. The Company will from time to time
use all reasonable efforts to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and the national
securities exchange on which the Debt Warrants may be listed or authorized for
trading and to make all filing under the United States federal and state laws,
which may be or become requisite in connection with the issuance, sale, trading,
transfer or delivery of the Debt Warrants, and the exercise of the Debt
Warrants.
SECTION 6.06. Persons Having Rights Under Debt Warrant Agreement. Nothing
in this 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 Debt Warrant Agent
and the Holders any right, remedy or claim under or by reason of this Agreement
or any covenant, condition, stipulation, promise or agreement herein; and all
covenants, conditions, stipulations, promises and agreements herein shall be for
the sole and exclusive benefit of the Company, the Debt Warrant Agent and their
respective successors and the Holders.
SECTION 6.07. Delivery of Prospectus. The Company will furnish to the Debt
Warrant Agent sufficient copies of a prospectus or prospectuses relating to the
Underlying Debt Securities deliverable upon exercise of any outstanding Debt
Warrants (each a "Prospectus"), and the Debt Warrant Agent agrees to deliver to
the Holder of a Debt Warrant, prior to or concurrently with the delivery of the
Underlying Debt Securities issued upon the exercise thereof, a copy of the
Prospectus relating to such Underlying Debt Securities.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this greement 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 Agreement may be executed in one or more
counterparts and, when a counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and the same agreement.
SECTION 6.10. Judgment Currency. The Company agrees to indemnify each
Holder against any loss incurred by such party as a result of any judgment or
14
order being given or made for any amount due under this Agreement and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (a) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (b) the spot rate of exchange in the City of New York at which such party on
the date of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by such
party. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
SECTION 6.11. Inspection Of Agreement. A copy of this Agreement shall be
available during normal business hours at the office of the Debt Warrant Agent
for inspection by any Holder. The Debt Warrant Agent may require such Holder to
submit its Debt Warrant Certificate for inspection prior to making such copy
available.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CLEARONE COMMUNICATIONS, INC.
By:
--------------------------------
Name and Title
Attest:
By:
-------------------------------
Name and Title
[DEBT WARRANT AGENT]
By:
--------------------------------
Name and Title
Attest:
By:
-------------------------------
Name and Title
16
EXHIBIT A
to
Debt Warrant Agreement
dated as of _______, 20__
[Compensation of Debt Warrant Agent]
