Exhibit 4.10
WARRANT AGREEMENT
This Warrant Agreement (the "Agreement"), dated as of February 1, 2002,
is between Tower Tech, Inc., an Oklahoma corporation (the "Company"), and UMB
Bank, n.a., a national banking association (the "Warrant Agent").
A. The Company, in connection with its plan of reorganization (the
"Plan of Reorganization") in bankruptcy, is obligated to issue warrants (the
"Warrants") to each owner of the Company's common stock, par value $0.001 per
share (the "Old Common Stock"), entitling each such owner to purchase 0.02826 of
a share of the Company's common stock, par value $0.01 per share (the "New
Common Stock"), for each share of Old Common Stock held by such owner.
B. According to the Plan of Reorganization, the aggregate number of
shares of the New Common Stock to be issued upon exercise of the Warrants is
116,000.
C. The Company wishes to retain the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer, exchange and replacement of the certificates evidencing the
Warrants to be issued under this Agreement and the Plan of Reorganization (the
"Warrant Certificates") and the exercise of the Warrants.
D. The Company and the Warrant Agent wish to enter into this Agreement
to set forth the terms and conditions of the Warrants and the rights of the
holders thereof (the "Warrantholders") and to set forth the respective rights
and obligations of the Company and the Warrant Agent. Each Warrantholder is an
intended beneficiary of this Agreement with respect to the rights of
Warrantholders herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent
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The Company appoints the Warrant Agent to act as agent for the Company
in accordance with the instructions in this Agreement, and the Warrant Agent
accepts such appointment.
Section 2. Date, Denomination and Execution of Warrant Certificates
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The Warrant Certificates (and the Form of Exercise and the Form of
Assignment to be printed on the reverse thereof) shall be in registered form
only and shall be substantially of the tenor and purport recited in Exhibits A
hereto, and may have such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate 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 New Common Stock or the Warrants
may be listed or any automated quotation system, or to conform to usage. Each
Warrant Certificate shall entitle the registered holder thereof, subject to the
provisions of this Agreement, the Plan of Reorganization and the Warrant
Certificate, to purchase, on
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or before the close of business on January 30, 2007 (the "Expiration Date"), for
a purchase price of $3.00 per share (the "Exercise Price"), 0.02826 of a share
of nonassessable New Common Stock for each share of Old Common Stock held by the
person to whom the Warrant Certificate was originally issued. The Exercise Price
of the Warrants is subject to adjustments as provided in Section 6 hereof. Each
Warrant Certificate shall be dated the date on which the Warrant Agent receives
valid issuance instructions from the Company or the Warrant Agent is otherwise
permitted to issue a Warrant Certificate pursuant to the terms of that certain
letter agreement between the Company and the Warrant Agent dated February 1,
2002.
For purposes of this Agreement, the term "close of business" on any
given date shall mean 5:00 p.m., Kansas City, Missouri time, on such date;
provided, however, that if such date is not a business day, it shall mean 5:00
p.m., Kansas City, Missouri time, on the next succeeding business day. For
purposes of this Agreement, the term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which banking institutions in Kansas City,
Missouri are authorized or obligated by law to be closed.
Each Warrant Certificate shall be executed on behalf of the Company by
its President or a Vice President, either manually or by facsimile signature
printed thereon, and have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. Each Warrant Certificate
shall be manually countersigned by the Warrant Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who
shall have signed any Warrant Certificate shall cease to be such officer of the
Company before countersignature by the Warrant Agent and issue and delivery
thereof by the Company, such Warrant Certificate, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force and
effect as though the person who signed such Warrant Certificate had not ceased
to be such officer of the Company.
Section 3. Subsequent Issue of Warrant Certificates
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Subsequent to their original issuance, no Warrant Certificates shall be
reissued except (i) Warrant Certificates issued upon transfer thereof in
accordance with Section 4 hereof; (ii) Warrant Certificates issued upon any
combination, split-up or exchange of Warrant Certificates pursuant to Section 4
hereof; (iii) Warrant Certificates issued in replacement of mutilated,
destroyed, lost or stolen Warrant Certificates pursuant to Section 5 hereof;
(iv) Warrant Certificates issued upon the partial exercise of Warrant
Certificates pursuant to Section 7 hereof; and (v) Warrant Certificates issued
to reflect any adjustment or change in the Exercise Price or the number or kind
of shares purchasable thereunder pursuant to Section 22 hereof. The Warrant
Agent is hereby irrevocably authorized to countersign and deliver, in accordance
with the provisions of said Sections 4, 5, 7 and 22, the new Warrant
Certificates required for purposes thereof, and the Company, whenever required
by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates
duly executed on behalf of the Company for such purposes.
Section 4. Transfers and Exchanges of Warrant Certificates
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The Warrant Agent will keep or cause to be kept books for registration
of ownership and transfer of the Warrant Certificates issued hereunder. Such
registers shall show the names and
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addresses of the respective holders of the Warrant Certificates and the kind and
number of Warrants evidenced by each such Warrant Certificate.
The Warrant Agent shall, from time to time, register the transfer of
any outstanding Warrants upon the books to be maintained by the Warrant Agent
for that purpose, upon surrender of the Warrant Certificate evidencing such
Warrants, with the Form of Assignment duly filled in and executed with such
signature guaranteed by an "eligible guarantor institution" (as defined by Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended) and such
supporting documentation as the Warrant Agent or the Company may reasonably
require, to the Warrant Agent at its stock transfer office in Kansas City,
Missouri at any time on or before the Expiration Date, and upon payment to the
Warrant Agent for the account of the Company of an amount equal to any
applicable transfer tax. Payment of the amount of such tax may be made in cash,
or by certified or official bank check, payable in lawful money of the United
States of America to the order of the Company.
Upon receipt of a Warrant Certificate, with the Form of Assignment duly
filled in and executed, accompanied by payment of an amount equal to any
applicable transfer tax, the Warrant Agent shall promptly cancel the surrendered
Warrant Certificate and countersign and deliver to the transferee a new Warrant
Certificate for the number of full Warrants transferred to such transferee;
provided, however, that in case the registered holder of any Warrant Certificate
shall elect to transfer fewer than all of the Warrants evidenced by such Warrant
Certificate, the Warrant Agent in addition shall promptly countersign and
deliver to such registered holder a new Warrant Certificate or Certificates for
the number of full Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the option
of the holder thereof for another Warrant Certificate or Certificates of
different denominations, of like tenor and representing in the aggregate the
same kind and number of Warrants, upon surrender of such Warrant Certificate or
Certificates, with the Form of Assignment duly filled in and executed, to the
Warrant Agent, at any time or from time to time after the close of business on
the date hereof and prior to the close of business on the Expiration Date. The
Warrant Agent shall promptly cancel the surrendered Warrant Certificate and
deliver the new Warrant Certificate pursuant to the provisions of this Section
4.
Section 5. Mutilated, Destroyed, Lost or Stolen Warrant Certificates
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Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
any Warrant Certificate and, in the case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and reimbursement to them
of all reasonable expenses incidental thereto, and, in the case of mutilation,
upon surrender and cancellation of the Warrant Certificate, the Warrant Agent
shall countersign and deliver a new Warrant Certificate of like tenor for the
same kind and number of Warrants.
Section 6. Adjustments of Number and Kind of Shares Purchasable and Exercise
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Price
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The number and kind of securities or other property purchasable upon
exercise of a Warrant shall be subject to adjustment from time to time upon the
occurrence, after the date hereof, of any of the following events:
A. In case the Company shall (1) pay a dividend in, or make a
distribution of, shares of capital stock on its outstanding New Common Stock;
(2) subdivide its outstanding shares of New Common Stock into a greater number
of such shares); or (3) combine its outstanding shares of New Common Stock into
a smaller number of such shares, the total number of shares of New Common Stock
purchasable upon the exercise of each Warrant outstanding immediately prior
thereto shall be adjusted so that the holder of any Warrant Certificate
thereafter surrendered for exercise shall be entitled to receive at the same
aggregate Exercise Price the number of shares of capital stock (of one or more
classes) that such holder would have owned or have been entitled to receive
immediately following the happening of any of the events described above had
such Warrant been exercised in full immediately prior to the record date with
respect to such event. Any adjustment made pursuant to this Section 6(A) shall,
in the case of a stock dividend or distribution, become effective as of the
record date therefor and, in the case of a subdivision or combination, be made
as of the effective date thereof. If, as a result of an adjustment made pursuant
to this Section 6(A), the holder of any Warrant Certificate thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
(whose determination shall be conclusive and shall be evidenced by a Board
resolution filed with the Warrant Agent) shall determine the allocation of the
adjusted Exercise Price between or among shares of such classes of capital
stock.
B. In the event of a capital reorganization or a reclassification of
the New Common Stock (except as otherwise provided in this Section 6), any
Warrantholder, upon exercise of Warrants, shall be entitled to receive, in
substitution for the New Common Stock to which he would have become entitled
upon exercise immediately prior to such reorganization or reclassification, the
shares (of any class or classes) or other securities or property of the Company
(or cash) that he would have been entitled to receive at the same aggregate
Exercise Price upon such reorganization or reclassification if such Warrants had
been exercised immediately prior to the record date with respect to such event;
and in any such case, appropriate provision (as determined by the Board of
Directors of the Company, whose determination shall be conclusive and shall be
evidenced by a certified Board resolution filed with the Warrant Agent) shall be
made for the application of this Section 6 with respect to the rights and
interests thereafter of the Warrantholders (including but not limited to the
allocation of the Exercise Price between or among shares of classes of capital
stock), to the end that this Section 6 (including the adjustments of the number
of shares of New Common Stock or other securities purchasable and the Exercise
Price thereof) shall thereafter be reflected, as nearly as reasonably
practicable, in all subsequent exercises of the Warrants for any shares or
securities or other property (or cash) thereafter deliverable upon the exercise
of the Warrants.
C. Whenever the number of shares of New Common Stock or other
securities purchasable upon exercise of a Warrant is adjusted as provided in
this Section 6, the Company will promptly file with the Warrant Agent a
certificate signed by the President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company setting forth the number and kind of securities or
other property purchasable upon exercise of a Warrant, as so adjusted, stating
that such adjustments in the number or kind of shares or
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other securities or property conform to the requirements of this Section 6, and
setting forth a brief statement of the facts accounting for such adjustments.
Promptly after receipt of such certificate, the Company, or the Warrant Agent at
the Company's request, will deliver, by first-class, postage prepaid mail, a
brief summary thereof (to be supplied by the Company) to the registered holders
of the outstanding Warrant Certificates; provided, however, that failure to file
or to give any notice required under this Section 6(C), or any defect therein,
shall not affect the legality or validity of any such adjustments under this
Section 6; and provided, further, that, where appropriate, such notice may be
given in advance and included as part of the notice required to be given
pursuant to Section 12 hereof.
D. In case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or merger which
does not result in any reclassification or change of the outstanding New Common
Stock), 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
corporation formed by such consolidation or merger or the corporation which
shall have acquired such assets, as the case may be, shall execute and deliver
to the Warrant Agent a supplemental warrant agreement providing that the holder
of each Warrant then outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such Warrant, solely
the kind and amount of shares of stock and other securities and property (or
cash) receivable upon such consolidation, merger, sale or transfer by a holder
of the number of shares of New Common Stock of the Company for which such
Warrant might have been exercised immediately prior to such consolidation,
merger, sale or transfer. Such supplemental warrant agreement shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Section 6. The above provision of this Section 6(D)
shall similarly apply to successive consolidations, mergers, sales or transfers.
The Warrant Agent shall not be under any responsibility to determine
the correctness of any provision contained in any such supplemental warrant
agreement relating to either the kind or amount of shares of stock or securities
or property (or cash) purchasable by holders of Warrant Certificates upon the
exercise of their Warrants after any such consolidation, merger, sale or
transfer or of any adjustment to be made with respect thereto, but subject to
the provisions of Section 20 hereof, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, a
certificate of a firm of independent certified public accountants (who may be
the accountants regularly employed by the Company) with respect thereto.
E. Irrespective of any adjustments in the number or kind of shares
issuable upon exercise of Warrants, Warrant Certificates theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the similar Warrant Certificates initially issuable
pursuant to this Warrant Agreement.
F. The Company shall retain a firm of independent public accountants of
recognized standing, which may be the firm regularly retained by the Company,
selected by the Board of Directors of the Company or the Executive Committee of
said Board, and not disapproved by the Warrant Agent, to make any computation
required under this Section 6, and a certificate signed by such firm shall, in
the absence of fraud or gross negligence, be conclusive evidence of the
correctness of any computation made under this Section 6.
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G. For the purpose of this Section, the term "New Common Stock" shall
mean (i) the New Common Stock or (ii) any other class of stock resulting from
successive changes or reclassifications of such New Common Stock consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time as a result of an
adjustment made pursuant to this Section 6, the holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive any shares of capital
stock of the Company other than shares of New Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the New Common Stock
contained in this Section 6, and all other provisions of this Agreement, with
respect to the New Common Stock, shall apply on like terms to any such other
shares.
H. The Company may, from time to time and to the extent permitted by
law, reduce the Exercise Price of the Warrants by any amount for a period of not
less than twenty (20) days. If the Company so reduces the Exercise Price of such
Warrants, it will give not less than fifteen (15) days' notice of such decrease,
which notice may be in the form of a press release, and shall take such other
steps as may be required under applicable law in connection with any offers or
sales of securities at the reduced price.
Section 7. Exercise of Warrants
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The registered holder of any Warrant Certificate may exercise the
Warrants evidenced thereby, in whole at any time or in part from time to time at
or prior to the close of business on the Expiration Date, at which time the
Warrant Certificates shall be and become wholly void and of no value. Warrants
may be exercised by their holders as follows:
A. Exercise of Warrants shall be accomplished upon surrender of the
Warrant Certificate evidencing such Warrants, with the Form of Exercise on the
reverse side thereof duly filled in and executed, to the Warrant Agent at its
stock transfer office in Kansas City, Missouri, together with payment to the
Company of the Exercise Price (as of the date of such surrender) of the Warrants
then being exercised and an amount equal to any applicable transfer tax and, if
requested by the Company, any other taxes or governmental charges which the
Company may be required by law to collect in respect of such exercise. Payment
of the Exercise Price and other amounts may be made by wire transfer of good
funds, or by certified or bank cashier's check, payable in lawful money of the
United States of America to the order of the Company. No adjustment shall be
made for any cash dividends, whether paid or declared, on any securities
issuable upon exercise of a Warrant.
B. Upon receipt of a Warrant Certificate, with the Form of Exercise
duly filled in and executed, accompanied by payment of the Exercise Price of the
Warrants being exercised (and of an amount equal to any applicable taxes or
government charges as aforesaid), the Warrant Agent shall promptly request from
the Company's transfer agent with respect to the securities to be issued and
delivered to or upon the order of the registered holder of such Warrant
Certificate, in such name or names as such registered holder may designate, a
certificate or certificates for the number of full shares of the securities to
be purchased, together with cash made available by the Company pursuant to
Section 8 hereof in respect of any fraction of a share of such securities
otherwise issuable upon such exercise. If the Warrant is then exercisable to
purchase property other than securities, the
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Warrant Agent shall take appropriate steps to cause such property to be
delivered to or upon the order of the registered holder of such Warrant
Certificate. In addition, if it is required by law and upon instruction by the
Company, the Warrant Agent will deliver to each Warrantholder a prospectus which
complies with the Securities Act of 1933, as amended, and the Company agrees to
supply Warrant Agent with sufficient number of prospectuses to effectuate that
purpose.
C. In case the registered holder of any Warrant Certificate shall
exercise fewer than all of the Warrants evidenced by such Warrant Certificate,
the Warrant Agent shall promptly countersign and deliver to the registered
holder of such Warrant Certificate, or to his duly authorized assigns, a new
Warrant Certificate or Certificates evidencing the number of Warrants that were
not so exercised.
D. Each person in whose name any certificate for securities is issued
upon the exercise of Warrants shall for all purposes be deemed to have become
the holder of record of the securities represented thereby as of, and such
certificate shall be dated, the date upon which the Warrant Certificate was duly
surrendered in proper form and payment of the Exercise Price (and of any
applicable taxes or other governmental charges) was made; provided, however,
that if the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares as of, and the certificate for such
shares shall be dated, the next succeeding business day on which the stock
transfer books of the Company are open (whether before, on or after the
Expiration Date relating to such Warrant), and the Warrant Agent shall be under
no duty to deliver the certificate for such shares until such date. The Company
covenants and agrees that it shall not cause its stock transfer books to be
closed for a period of more than twenty (20) consecutive business days except
upon consolidation, merger, sale of all or substantially all of its assets,
dissolution or liquidation or as otherwise provided by law.
Section 8. Fractional Interests
--------------------
The Company shall not be required to issue any Warrant Certificate
evidencing a fraction of a Warrant or to issue fractions of shares of securities
on the exercise of the Warrants. If any fraction (calculated to the nearest
one-hundredth) of a Warrant or a share of securities would, except for the
provisions of this Section 8, be issuable on the issuance or exercise of any
Warrant, the Holder otherwise entitled to a Warrant or share of securities that
includes a fractional amount shall receive either one whole Warrant or share (if
such fraction is equal to, or greater than one-half) or no Warrant or share (if
such fraction is less than one-half) in lieu of a fractional amount. By
accepting a Warrant Certificate, the holder thereof expressly waives any right
to receive a Warrant Certificate evidencing any fraction of a Warrant or to
receive any fractional share of securities upon exercise of a Warrant.
Section 9. Reservation of Equity Securities
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The Company covenants that it will at all times reserve and keep
available, free from any pre-emptive rights, out of its authorized and unissued
equity securities, solely for the purpose of issue upon exercise of the
Warrants, such number of shares of equity securities of the Company as shall
then be issuable upon the exercise of all outstanding Warrants ("Equity
Securities"). The
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Company covenants that all Equity Securities which shall be so issuable shall,
upon such issue, be duly authorized, validly issued, fully paid and
nonassessable.
The Company covenants that if any Equity Securities, required to be
reserved for the purpose of issue upon exercise of the Warrants hereunder,
require registration with or approval of any governmental authority under any
federal or state law before such shares may be issued upon exercise of Warrants,
the Company will use all commercially reasonable efforts to cause such
securities to be duly registered, or approved, as the case may be, and, to the
extent practicable, take all such action in anticipation of and prior to the
exercise of the Warrants; provided, however, that in no event shall such
securities be issued, and the Company is authorized to refuse to honor the
exercise of any Warrant, if such exercise would result in the opinion of the
Company's Board of Directors, upon advice of counsel, in the violation of any
law; and provided, further that, in the case of a Warrant exercisable solely for
securities listed on a securities exchange or for which there are at least two
independent market makers, in lieu of obtaining such registration or approval,
the Company may elect to redeem Warrants submitted to the Warrant Agent for
exercise for a price equal to the difference between the aggregate low asked
price, or closing price, as the case may be, of the securities for which such
Warrant is exercisable on the date of such submission and the Exercise Price of
such Warrants; in the event of such redemption, the Company will pay to the
holder of such Warrants the above-described redemption price in cash within ten
(10) business days after receipt of notice from the Warrant Agent that such
Warrants have been submitted for exercise.
Section 10. Reduction of Conversion Price Below Par Value
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Before taking any action that would cause an adjustment pursuant to
Section 6 hereof reducing the portion of the Exercise Price required to purchase
one share of capital stock below the then par value (if any) of a share of such
capital stock, the Company will use its best efforts to take any corporate
action which, in the opinion of its counsel, may be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of
such capital stock.
Section 11. Payment of Taxes
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The Company covenants and agrees that it will pay when due and payable
any and all documentary stamp which may be payable in respect of the original
issuance of the Warrant Certificates, or any shares of New Common Stock or other
securities upon the exercise of Warrants. The Company shall not, however, be
required (i) to pay any tax which may be payable in respect of any transfer
involved in the transfer and delivery of Warrant Certificates or the issuance or
delivery of certificates for New Common Stock or other securities in a name
other than that of the registered holder of the Warrant Certificate surrendered
for purchase or (ii) to issue or deliver any certificate for shares of New
Common Stock or other securities upon the exercise of any Warrant Certificate
until any such tax shall have been paid, all such tax being payable by the
holder of such Warrant Certificate at the time of surrender.
Section 12. Notice of Certain Corporate Action
----------------------------------
In case the Company after the date hereof shall propose (i) to offer to
the holders of New Common Stock, generally, rights to subscribe to or purchase
any additional shares of any class of its
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capital stock, any evidences of its indebtedness or assets, or any other rights
or options or (ii) to effect any reclassification of New Common Stock (other
than a reclassification involving merely the subdivision or combination of
outstanding shares of New Common Stock) or any capital reorganization, or any
consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company is required, or any sale, transfer or other
disposition of its property and assets substantially as an entirety, or the
liquidation, voluntary or involuntary dissolution or winding-up of the Company,
then, in each such case, the Company shall file with the Warrant Agent and the
Company, or the Warrant Agent on its behalf, shall mail (by first-class, postage
prepaid mail) to all registered holders of the Warrant Certificates notice of
such proposed action, which notice shall specify the date on which the books of
the Company shall close or a record be taken for such offer of rights or
options, or the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, other disposition, liquidation, voluntary
or involuntary dissolution or winding-up shall take place or commence, as the
case may be, and which shall also specify any record date for determination of
holders of New Common Stock entitled to vote thereon or participate therein and
shall set forth such facts with respect thereto as shall be reasonably necessary
to indicate any adjustments in the Exercise Price and the number or kind of
shares or other securities purchasable upon exercise of Warrants which will be
required as a result of such action. Such notice shall be filed and mailed in
the case of any action covered by clause (i) above, at least ten (10) days prior
to the record date for determining holders of the New Common Stock for purposes
of such action or, if a record is not to be taken, the date as of which the
holders of shares of New Common Stock of record are to be entitled to such
offering; and, in the case of any action covered by clause (ii) above, at least
twenty (20) days prior to the earlier of the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, voluntary or involuntary dissolution or winding-up is
expected to become effective and the date on which it is expected that holders
of shares of New Common Stock of record on such date shall be entitled to
exchange their shares for securities or other property deliverable upon such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, voluntary or involuntary dissolution or winding-up.
Failure to give any such notice or any defect therein shall not affect
the legality or validity of any transaction listed in this Section 12.
Section 13. Disposition of Proceeds on Exercise of Warrant Certificates, etc.
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The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of securities or other property through the
exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by Warrantholders during normal business hours at its stock transfer
office. Copies of this Agreement may be obtained upon written request addressed
to the Warrant Agent at its stock transfer office in Kansas City, Missouri.
Section 14. Warrantholder Not Deemed a Shareholder
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No Warrantholder, as such, shall be entitled to vote, receive dividends
or be deemed the holder of New Common Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Warrants
represented thereby for any purpose whatever, nor shall anything contained
herein or in any Warrant Certificate be construed to confer upon any
Warrantholder, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance or otherwise), or to receive notice of
meetings or other actions affecting shareholders (except as provided in Section
12 hereof), or to receive dividend or subscription rights, or otherwise, until
such Warrant Certificate shall have been exercised in accordance with the
provisions hereof and the receipt of the Exercise Price and any other amounts
payable upon such exercise by the Warrant Agent.
Section 15. Right of Action
---------------
All rights of action in respect to this Agreement are vested in the
respective registered holders of the Warrant Certificates; and any registered
holder of any Warrant Certificate, without the consent of the Warrant Agent or
of any other holder of a Warrant Certificate, may, in his own behalf 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 Warrants evidenced by such Warrant Certificate, for the purchase
of shares of the New Common Stock in the manner provided in the Warrant
Certificate and in this Agreement.
Section 16. Agreement of Holders of Warrant Certificates
--------------------------------------------
Every holder of a Warrant Certificate by accepting the same consents
and agrees with the Company, the Warrant Agent and with every other holder of a
Warrant Certificate that:
A. The Warrant Certificates are transferable on the registry books of
the Warrant Agent only upon the terms and conditions set forth in this
Agreement; and
B. the Company and the Warrant Agent may deem and treat the person
in whose name the Warrant Certificate is registered as the absolute owner of the
Warrant (notwithstanding any notation of ownership or other writing thereon made
by anyone other than the Company or the Warrant Agent) for all purposes whatever
and neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
Section 17. Cancellation of Warrant Certificates
------------------------------------
In the event that the Company shall purchase or otherwise acquire any
Warrant Certificate or Certificates after the issuance thereof, such Warrant
Certificate or Certificates shall thereupon be delivered to the Warrant Agent
and be canceled by it and retired. The Warrant Agent shall also cancel any
Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for transfer, split-up, combination or exchange. Warrant
Certificates so canceled shall be delivered by
10
the Warrant Agent to the Company from time to time, or disposed of in accordance
with the instructions of the Company.
Section 18. Concerning the Warrant Agent
----------------------------
The Company agrees to pay to the Warrant Agent from time to time, on
written demand of the Warrant Agent, compensation for its services rendered
hereunder as set forth in Exhibit B attached hereto, as such Exhibit may be
modified from time to time upon written agreement of both parties, together with
reasonable expenses, including counsel fees, and other disbursements incurred in
the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify,
defend and hold the Warrant Agent harmless from and against all losses, claims,
liabilities, damages and expenses (including reasonable counsel fees) arising
out of or in connection with the Warrant Agent's acceptance and administration
of this Agreement, or in any manner associated with this Agreement, expect for
any losses, claims, liabilities, damages or expenses that are incurred as a
result of the Warrant Agent's gross negligence, bad faith or willful misconduct.
Promptly after receipt by the Warrant Agent of notice of commencement
of an action, claim or proceeding, the Warrant Agent shall, if a claim in
respect thereof is to be made against the Company, notify the Company in writing
of the commencement thereof. Upon receipt of any such notification, the Company
shall be entitled to participate therein and, to the extent it may wish, to
assume the defense thereof, with counsel reasonably satisfactory to the Warrant
Agent. After notice from the Company of its intention to assume the defense of
an action and approval of counsel, the Warrant Agent shall bear the expense of
any additional counsel retained by it, and the Company shall not be liable to
the Warrant Agent for any additional counsel subsequently incurred by the
Warrant Agent in connection with the defense of such claim, other than
reasonable costs of investigation. The Company shall not settle or compromise
the liability of the Warrant Agent in any action, or permit a default or consent
to the entry of any judgment in respect thereof without the prior written
consent of the Warrant Agent, unless such settlement, compromise or consent
completely and finally releases the Warrant Agent from any and all liability.
Section 19. Merger or Consolidation or Change of Name of Warrant Agent
----------------------------------------------------------
Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor warrant agent
under the provisions of Section 21 hereof. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the
11
successor Warrant Agent; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
Section 20. Duties of Warrant Agent
-----------------------
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrant Certificates, by their acceptance thereof, shall be
bound:
A. The Warrant Agent may consult with counsel satisfactory to it (who
may be counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Warrant Agent as to any action
taken, suffered or omitted by it in good faith and in accordance with such
opinion; provided, however, that the Warrant Agent shall have exercised
reasonable care in the selection of such counsel. Fees and expenses of such
counsel, to the extent reasonable, shall be paid by the Company.
B. Whenever in the performance of its duties under this Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the President or a Vice President or the
Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
C. The Warrant Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
D. The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its countersignature on the Warrant Certificates and such
statements or recitals as describe the Warrant Agent or action taken or to be
taken by it) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
E. The Warrant Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant
12
or condition contained in this Agreement or in any Warrant Certificate; nor
shall it be responsible for the making of any change in the number of shares of
New Common Stock for which a Warrant is exercisable required under the
provisions of Section 6 or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of facts that would require any
such adjustment or change (except with respect to the exercise of Warrant
Certificates after actual notice of any adjustment of the Exercise Price); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of New Common Stock to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether
any shares of New Common Stock will, when issued, be validly issued, fully paid
and non-assessable.
F. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Warrant Certificates, as their respective rights
or interests may appear.
G. The Warrant Agent and any shareholder, director, officer or employee
of the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
H. The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
President or a Vice President or the Secretary of the Company, and to apply to
such officers for advice or instructions in connection with the Warrant Agent's
duties, and it shall not be liable for any action taken or suffered or omitted
by it in good faith in accordance with instructions of any such officer.
I. The Warrant Agent will not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
J. The 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, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees 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,
agents and employees.
K. The Warrant Agent will not incur any liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken, or
any failure to take action, in reliance on
13
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument reasonably believed by the Warrant Agent to be genuine
and to have been signed, sent or presented by the proper party or parties.
L. The Warrant Agent will act hereunder solely as agent of the Company
in a ministerial capacity, and its duties will be determined solely by the
provisions hereof. The Warrant Agent will not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence, bad faith or willful conduct.
Section 21. Change of Warrant Agent
-----------------------
The Warrant Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' prior notice in writing mailed, by
registered or certified mail, to the Company. The Company may remove the Warrant
Agent or any successor warrant agent upon thirty (30) days' prior notice in
writing, mailed to the Warrant Agent or successor warrant agent, as the case may
be, by registered or certified mail. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent and shall, within fifteen (15) days following
such appointment, give notice thereof in writing to each registered holder of
the Warrant Certificates. If the Company shall fail to make such appointment
within a period of fifteen (15) days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent, then the Company agrees to perform the
duties of the Warrant Agent hereunder until a successor Warrant Agent is
appointed. After appointment and execution of a copy of this Agreement in effect
at that time, the successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent, within a reasonable time,
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section 21, however, or any defect therein
shall not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor warrant agent, as the case may
be.
Section 22. Issuance of New Warrant Certificates
------------------------------------
Notwithstanding any of the provisions of this Agreement or the several
Warrant Certificates to the contrary, the Company may, at its option, issue new
Warrant Certificates in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price or the number or kind
of shares purchasable under the several Warrant Certificates made in accordance
with the provisions of this Agreement.
Section 23. Notices
-------
Notice or demand pursuant to this Agreement to be given or made on the
Company by the Warrant Agent or by the registered holder of any Warrant
Certificate shall be sufficiently given or made if sent by first-class or
registered mail, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent) as follows:
14
Tower Tech, Inc.
00000 Xxxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Subject to the provisions of Section 21, any notice pursuant to this
Agreement to be given or made by the Company or by the holder of any Warrant
Certificate to or on the Warrant Agent shall be sufficiently given or made if
sent by first-class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Warrant Agent with the Company) as
follows:
UMB Bank, n.a.
Securities Transfer Division
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000
Any notice or demand authorized to be given or made to the registered
holder of any Warrant Certificate under this Agreement shall be sufficiently
given or made if sent by first-class or registered mail, postage prepaid, to the
last address of such holder as it shall appear on the registers maintained by
the Warrant Agent.
Section 24. Modification of Agreement
-------------------------
The Warrant Agent may concur with the Company in making any changes or
corrections in this Agreement that the Warrant Agent shall have been advised by
counsel (who may be counsel for the Company) are necessary or desirable to cure
any ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake or manifest error herein contained, or to make any other
provisions in regard to matters or questions arising hereunder and which shall
not be inconsistent with the provisions of the Warrant Certificates and which
shall not adversely affect the interests of the Warrantholders. As of the date
hereof, this Agreement contains the entire and only agreement, understanding,
representation, condition, warranty or covenant between the parties hereto with
respect to the matters herein, supersedes any and all other agreements between
the parties hereto relating to such matters, and may be modified or amended only
by a written agreement signed by both parties hereto pursuant to the authority
granted by the first sentence of this Section 24.
Section 25. Successors
----------
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 26. Governing Law
-------------
THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF OKLAHOMA AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
Section 27. Termination
-----------
15
This Agreement shall terminate as of the close of business on the
Expiration Date, or such earlier date upon which all Warrants shall have been
exercised or redeemed, except that the Warrant Agent shall account to the
Company as to all Warrants outstanding and all cash held by it as of the close
of business on the Expiration Date.
Section 28. Benefits of this Agreement
--------------------------
Nothing in this Agreement or in the Warrant Certificates shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent, and their respective successors and assigns hereunder and the
registered holders of the Warrant Certificates any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent, their respective
successors and assigns hereunder and the registered holders of the Warrant
Certificates.
Section 29. Descriptive Headings
--------------------
The descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 30. Counterparts
------------
[The remainder of this page was intentionally left blank]
16
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
TOWER TECH, INC.
By: /s/Xxxxxxx X. Xxxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
UMB BANK, N.A.
By: /s/Xxxxx X. Xxxxxxx
-------------------
Title: Senior Vice President
17
Exhibit A
[FORM OF FACE OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF ARE EXEMPT FROM
THE REGISTATION AND QUALIFICATION REQUIREMENTS OF FEDERAL
AND STATE SECURITIES LAWS PURSUANT TO SECTION 1145 OF THE
BANKRUPTCY CODE AS SECURITIES ISSUED BY A DEBTOR PURSUANT TO
A PLAN OF REORGANIZATION APPROVED BY THE BANKRUPCY COURT.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF ARE SUBJECT TO THE
CONDITIONS SPECIFIED IN THE WARRANT AGREEMENT DATED AS OF
FEBRUARY 1, 2002 BETWEEN THE COMPANY AND UMB BANK, N.A.
TOWER TECH, INC.
WARRANT CERTIFICATE EVIDENCING WARRANTS TO PURCHASE COMMON STOCK EXERCISABLE ON
OR BEFORE 5:00 P.M., KANSAS CITY, MISSOURI TIME, ON JANUARY 30, 2007.
(VALID ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN)
CUSIP 891864 11 8
No. ________________ _______________ Warrants
THIS CERTIFIES THAT, for value received
or registered assigns, is the registered holder of the number of Warrants set
forth above to purchase shares of common stock, par value $.01 per share (the
"Common Stock"), of Tower Tech, Inc., an Oklahoma corporation (the "Company").
Each Warrant entitles the Holder to purchase from the Company one share of
Common Stock (the "Warrant Shares") at an exercise price (the "Exercise Price")
of $3.00 per Warrant Share (subject to adjustment as provided in the Warrant
Agreement hereinafter referred to below), upon surrender hereof at the office of
UMB Bank, N.A. or to its successor, as the warrant agent under the Warrant
Agreement (any such warrant agent being herein called the "Warrant Agent"), with
the reverse hereof duly executed, with signature guaranteed as therein specified
and simultaneous payment in full by wire transfer or by certified or official
bank or bank cashier's check payable to the order of the Company. The number and
kind of securities or other property for which the Warrants are exercisable are
subject to further adjustment in certain events, such as mergers, splits, stock
dividends, recapitalizations and the like. All Warrants not
i
theretofore exercised will expire on the Expiration Date, subject to the terms
of the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless this Warrant Certificate has been countersigned by the Warrant
Agent by manual signature of an authorized officer on behalf of the Warrant
Agent, this Warrant Certificate shall not be valid for any purpose and no
Warrant evidenced hereby shall be exercisable.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
TOWER TECH, INC.
[SEAL] BY: _____________________________
Xxxxxx X. Xxxxx, President
ATTEST:
Dated:
Countersigned:
UMB BANK, N.A.
Warrant Agent
By:
______________________________
Authorized Signature
ii
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TOWER TECH, INC.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON STOCK
1. General.
The Warrants evidenced hereby are part of a duly authorized issue of
Warrants of the Company designated as Warrants to Purchase Common Stock
("Warrants"), limited in aggregate number to 116,000 Warrants issued under and
in accordance with the Warrant Agreement dated as of February 1, 2002 (the
"Warrant Agreement") between the Company and UMB Bank, N.A., as warrant agent
(the "Warrant Agent", which term includes any successor thereto permitted under
the Warrant Agreement), to which Warrant Agreement and all amendments thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Warrant Agent,
the Holders of this Warrant Certificate and the owners of the Warrants evidenced
hereby. A copy of the Warrant Agreement is available during normal business
hours at the offices of the Warrant Agent and the Company for inspection by the
Holder hereof.
In the event of the exercise of less than all of the Warrants evidenced
hereby, a new Warrant Certificate of the same tenor and for the number of
Warrants which are not exercised shall be issued by the Company in the name or
upon the written order of the Holder of this Warrant Certificate upon the
cancellation hereof.
All Warrant Shares issuable by the Company upon the exercise of Warrants
shall, upon such issuance, be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive or similar rights.
The Company shall pay any and all documentary stamp taxes, if any, that may
be payable in respect of the initial issuance of Warrants or the delivery of
Warrant Shares on exercise of Warrants. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Warrant Shares (including other
securities or property issuable upon the exercise of the Warrants) or payment of
cash to any person other than the Holder of a Warrant Certificate surrendered
upon the exercise of a Warrant and, in case of such transfer or payment, the
Warrant Agent and the Company shall not be required to issue any share
certificate or pay any cash until such tax or charge has been paid or it has
been established to the Warrant Agent's and the Company's satisfaction that no
such tax or charge is due.
The Warrant Certificates are issuable only in registered form in
denominations of whole numbers of Warrants. Upon surrender at the office of the
Warrant Agent and payment of the charges
iii
specified herein and in the Warrant Agreement, this Warrant Certificate may be
exchanged for Warrant Certificates in other authorized denominations or the
transfer hereof may be registered in whole or in part in authorized
denominations to one or more designated transferees, subject to the restrictions
on transfer set forth herein and in the Warrant Agreement; provided, however,
that such other Warrant Certificates issued upon exchange or registration of
transfer shall evidence the same aggregate number of Warrants as this Warrant
Certificate. The Company shall cause to be kept at the office of the Warrant
Agent a warrant register in which, subject to such reasonable regulations as the
Warrant Agent may prescribe and such regulations as may be prescribed by law,
the Company and the Warrant Agent shall provide for the registration of Warrant
Certificates and of transfers or exchanges of Warrant Certificates as provided
in the Warrant Agreement.
2. Expiration.
Except as provided in the Warrant Agreement, all outstanding Warrants shall
expire and all rights of the Holders of Warrant Certificates evidencing such
Warrants shall terminate and cease to exist as of 5:00 p.m., Kansas City,
Missouri time, on the Expiration Date. "Expiration Date" shall mean January 30,
2007, or such earlier date as determined in accordance with the Warrant
Agreement.
3. Anti-Dilution Adjustments.
The number of Warrant Shares issuable upon exercise of a Warrant shall be
adjusted on occurrence of certain events as provided in the Warrant Agreement.
Adjustments will be made whenever and as often as any specified event requires
an adjustment to occur.
4. Procedure for Exercising Warrant.
Subject to the provisions hereof and of the Warrant Agreement, the Holder
of this Warrant Certificate may exercise all or any whole number of the Warrants
evidenced hereby by deliver to the Warrant Agent at its stock transfer office
(i) a written notice of such Holder's election to exercise all or a portion of
the Warrants evidenced hereby, duly executed by such Holder in the form set
forth below, which notice shall specify the number of Warrant Shares to be
purchased; (ii) this Warrant Certificate evidencing such Warrants; and (iii) a
sum equal to the aggregate Exercise Price for the Warrant Shares into which the
Warrants represented by this Warrant Certificate are being exercised, which sum
shall be paid in any combination elected by such Holder of certified or official
bank or bank cashier's check payable to the order of the Company and delivered
to the Warrant Agent at its stock transfer office (which the Warrant Agent shall
transfer to the Company on the next business day after receipt).
5. Registered Holder.
Prior to due presentment of this Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name this Warrant Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Warrant Agent nor any such agent shall be affected by notice to the contrary.
iv
6. Status as Holder.
Prior to the exercise of the Warrants, except as may be specifically
provided for in the Warrant Agreement (i) no Holder of a Warrant Certificate, as
such, shall be entitled to any of the rights of a holder of Common Stock of the
Company, including, without limitation, the right to vote at, or to receive any
notice of, any meetings of shareholders of the Company; (ii) the consent of any
Holder shall not be required with respect to any action or proceeding of the
Company; and (iii) no Holder shall have any right not expressly conferred by the
Warrant Agreement or Warrant Certificate held by such Holder.
7. Governing Law.
THIS WARRANT CERTIFICATE, EACH WARRANT EVIDENCED THEREBY AND THE WARRANT
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF OKLAHOMA, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO
THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. Definitions.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
Form Of Exercise
----------------
In accordance with and subject to the terms and conditions hereof and of the
Warrant Agreement, the undersigned registered Holder of this Warrant Certificate
hereby irrevocably elects to exercise ____________________ Warrants evidenced by
this Warrant Certificate and represents that such Holder has tendered the
Exercise Price for each of the Warrants evidenced hereby being exercised in the
aggregate amount of:
$_________ in the indicated combination of:
(i) certified bank check payable to the order of the Company
($________);
(ii) official bank check payable to the order of the Company
($_________); or
(iii) wire transfer in immediately available funds to the account
designated by the Company for such purpose ($________).
The undersigned requests that the Warrant Shares issuable upon exercise be in
fully registered form in such denominations and registered in such names and
delivered, together with any other property receivable upon exercise, in such
manner as is specified in the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants evidenced
hereby, the undersigned requests that a new Warrant Certificate representing the
remaining Warrants evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instructions below. (If no instructions are
given or no signature is provided, a Warrant Certificate representing the
remaining Warrants evidenced hereby will be issued and delivered to the Holder
of this Warrant Certificate.)
v
Dated:
(Insert Social Security or Other
Identifying Number of Holder)
Name:_____________________________
(Please print)
Address:
Signature
(Signature must conform in all respects to name of Holder as specified on the
face of this Warrant Certificate and must bear a signature guarantee by a bank,
trust company or member firm of a national securities exchange.)
Medallion Signature Guaranteed Required:
Instructions (i) as to denominations and names of Warrant Shares issuable upon
exercise and as to delivery of such securities and any other property issuable
upon exercise and (ii) if applicable, as to Warrant Certificates evidencing
unexercised Warrants:
Assignment
----------
(Form of Assignment To Be Executed If Holder Desires To Transfer Warrant
Certificate)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and transfers
unto
Please insert social security or other identifying number
_____________________________________________________________
(Please print name and address including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________ Attorney, to transfer said
Warrant Certificate on the books of the within-named Company with full power of
substitution in the premises.
Dated:
Signature
(Signature must conform in all respects to name of Holder as specified on
the face of this Warrant Certificate and must bear a signature guarantee by a
bank, trust company or member firm of a national securities exchange.)
Medallion Signature Guaranteed Required:
vi
