FORM OF
STOCK PURCHASE WARRANT
----------------------
This STOCK PURCHASE WARRANT ("Warrant") is issued as of the 5th day of
February, 1999, by DIGITAL TRANSMISSION SYSTEMS, INC., a Delaware corporation
(the "Company"), to WI-LAN INC., an Alberta corporation (WI- LAN INC. and any
subsequent assignee or transferee hereof are hereinafter referred to
collectively as "Holder" or "Holders").
AGREEMENT:
1. Issuance of Warrant; Term. For and in consideration of WI-LAN INC.
purchasing a stock purchase warrant of the Company from Finova Mezzanine Capital
Inc. ("Finova") pursuant to a certain Purchase Agreement between WI-LAN and
Finova (the "Purchase Agreement"), and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company hereby
grants to Holder the right to purchase 702,615 shares of the Company's common
stock (the "Common Stock"), which the Company represents to equal 10.0% of the
shares of capital stock outstanding on the date hereof, calculated on a fully
diluted basis and assuming exercise of this Warrant. The shares of Common Stock
issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares." This Warrant shall be exercisable at any time and from time to time
from the date hereof until March 1, 2004 (the "Expiration Date").
2. Exercise Price. The exercise price (the "Exercise Price") per share
for which all or any of the Shares may be purchased pursuant to the terms of
this Warrant shall be One Dollar ($1.00).
3. Exercise. This Warrant may be exercised by the Holder hereof (but
only on the conditions hereinafter set forth) in whole or in part, upon delivery
of written notice of intent to exercise to the Company in the manner at the
address of the Company set forth in Section 13 hereof, together with this
Warrant and payment to the Company of the aggregate Exercise Price of the Shares
so purchased. The Exercise Price shall be payable, at the option of the Holder,
(i) by certified or bank check, (ii) by the cancellation of all or a portion of
debt outstanding to the Holder from the Company having an outstanding principal
balance equal to the aggregate Exercise Price or (iii) by the surrender of a
portion of this warrant where the shares subject to the portion of this Warrant
that is surrendered have a fair market value equal to the aggregate Exercise
Price. In the absence of an established public market
for the Common Stock, fair market value shall be established by the Company's
board of directors in a commercially reasonable manner. Upon exercise of this
Warrant as aforesaid, the Company shall as promptly as practicable, and in any
event within fifteen (15) days thereafter, execute and deliver to the Holder of
this Warrant a certificate or certificates for the total number of whole Shares
for which this Warrant is being exercised in such names and denominations as are
requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the Shares, the Holder shall be entitled to receive a new
Warrant covering the number of Shares in respect of which this Warrant shall not
have been exercised, which new Warrant shall in all other respects be identical
to this Warrant. The Company covenants and agrees that it will pay when due any
and all state and federal issue taxes which may be payable in respect of the
issuance of this Warrant or the issuance of any Shares upon exercise of this
Warrant.
4. Covenants and Conditions. The above provisions are subject to the
following:
(a) Neither this Warrant nor the Shares have been registered
under the Securities Act of 1933, as amended ("Securities Act"), or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired for investment
purposes and not with a view to distribution or resale and may not be sold or
otherwise transferred without (i) an effective registration statement for such
Warrant under the Securities Act and such applicable Blue Sky Laws, or (ii) an
opinion of counsel, which opinion and counsel shall be reasonably satisfactory
to the Company and its counsel, that registration is not required under the
Securities Act or under any applicable Blue Sky Laws (the Company hereby
acknowledges that Burnet, Xxxxxxxxx & Xxxxxx is acceptable counsel). Transfer of
the Shares shall be restricted in the same manner and to the same extent as the
Warrant and the certificates representing such Shares shall bear substantially
the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT
UNDER THE ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) IN THE
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION
UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
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compliance of the issuance of this warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws.
(b) The Company covenants and agrees that all shares which may
be issued upon exercise of this Warrant will, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, free from all taxes, liens, charges and preemptive rights, if
any, with respect thereto or to the issuance thereof. The Company shall at all
times reserve and keep available for issuance upon the exercise of this Warrant
such number of authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of this Warrant.
(c) The Company covenants and agrees that it shall not sell
any shares of the Company's capital stock at a price per share below the fair
market value of such shares, without the prior written consent of the Holder
hereof. In the event that the Company sells shares of Common Stock at a price
per share below the fair market value of such shares (a "Below Market
Transaction"), without the prior written consent of the Holder hereof, the
Company covenants and agrees that the number of shares issuable upon exercise of
this Warrant shall be equal to the product obtained by multiplying the number of
shares issuable pursuant to this Warrant prior to the Below Market Transaction
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to consummation of the Below Market
Transaction plus the number of shares of Common Stock issued in the Below Market
Transaction, and the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to the Below Market Transaction plus
the number of shares of Common Stock that the aggregate consideration received
by the Company in the Below Market Transaction would purchase at fair market
value. For purposes of this subsection, Common Stock shall be deemed to include
that number of shares of Common Stock that would be obtained assuming (i) the
conversion of any securities of the Company which, by their terms, are
convertible into or exchangeable for Common Stock, and (ii) the exercise of all
options to purchase or rights to subscribe four Common Stock or securities
which, by their terms, are convertible into or exchangeable for Common Stock. In
the absence of an established public market for the securities sold by the
Company in a Below Market Transaction, fair market value shall be established by
the Company's board of directors in a commercially reasonable manner.
5. Transfer of Warrant. Subject to the provisions of Section 4 hereof,
this Warrant may be transferred, in whole or in part, to any person or business
entity, by presentation of the Warrant to the Company with written instructions
for such transfer. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in the
name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
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6. Warrant Holder Not Shareholder; Rights Offering; Preemptive Rights.
Except as otherwise provided herein, this Warrant does not confer upon the
Holder, as such, any right whatsoever as a shareholder of the Company.
Notwithstanding the foregoing, if the Company should offer to all of the
Company's shareholders the right to purchase any securities of the Company, then
all shares of Common Stock that are subject to this Warrant shall be deemed to
be outstanding and owned by the Holder and the Holder shall be entitled to
participate in such rights offering. The Company shall not grant any preemptive
rights with respect to any of its capital stock without the prior written
consent of the Holder.
7. Observation Rights. The Holder of this Warrant shall receive notice
of and be entitled to attend or may send a representative to attend all meetings
of the Company's Board of Directors in a non-voting observation capacity and
shall receive a copy of all correspondence and information delivered to the
Company's Board of Directors, from the date hereof until such time as all
indebtedness of the Company to the Holder has been paid in full.
8. Adjustment Upon changes in Stock.
(a) If all or any portion of this Warrant shall be exercised
subsequent to any stock split, stock dividend, recapitalization, combination of
shares of the Company, or other similar event, occurring after the date hereof,
then the Holder exercising this Warrant shall receive, for the aggregate
Exercise Price, the aggregate number and class of shares which such Holder would
have received if this Warrant had been exercised immediately prior to such stock
split, stock dividend, recapitalization, combination of shares, or other similar
event. If any adjustment under this Section 8(a), would create a fractional
share of Common Stock or a right to acquire a fractional share of Common Stock,
such fractional share shall be disregarded and the number of shares subject to
this Warrant shall be the next higher number of shares, rounding all fractions
upward. Whenever there shall be an adjustment pursuant to this Section 8(a), the
Company shall forthwith notify the Holder or Holders of this Warrant of such
adjustment, setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated.
(b) If all or any portion of this Warrant shall be exercised
subsequent to any merger, consolidation, exchange of shares, separation,
reorganization or liquidation of the Company, or other similar event, occurring
after the date hereof, as a result of which shares of Common Stock shall be
changed into the same or a different number of shares of the same or another
class or classes of securities of the Company or another entity, or the holders
of Common Stock are entitled to receive cash or other property, then the Holder
exercising this Warrant shall receive, for the aggregate Exercise Price, the
aggregate number and class of shares, cash or other property which such Holder
would have received if this Warrant had been exercised immediately prior to such
merger, consolidation, exchange of
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shares, separation, reorganization or liquidation, or other similar event. If
any adjustment under this Section 8(b) would create a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares subject to this Warrant
shall be the next higher number of shares, rounding all fractions upward.
Whenever there shall be an adjustment pursuant to this Section 8(b), the Company
shall forthwith notify the Holder or Holders of this Warrant of such adjustment,
setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated.
9. Put Agreement.
(a) The Company hereby irrevocably grants and issued to Holder
the right and option to sell to the Company (the "Put") this Warrant for a
period of thirty (30) days immediately prior to the Expiration Date, at a
purchase price (the "Put Price") equal to the Fair Market Value (as hereinafter
defined) of the shares of Common Stock issuable to Holder upon exercise of this
Warrants.
(b) Holder may exercise the Put by delivery of written notice
(the "Put Notice") of such exercise to the Company in the manner and at the
address of the Company set forth in Section 13 hereof. The Company shall pay to
Holder, in cash or by wire transfer of immediately available funds, the Put
Price within thirty (30) days of the receipt of the Put Notice.
(c) For purposes of this Section 9, the Fair Market Value of
the shares of Common Stock of the Company issuable pursuant to this Warrant
shall be determined as follows:
(i) The Company and the Holder shall each appoint an
independent, experienced appraiser who is a member of a recognized
professional association of business appraisers. The two appraisers
shall determine the value of the shares of Common Stock which would be
issued upon the exercise of the Warrant, assuming that the sale would
be between a willing buyer and a willing seller, both of whom have full
knowledge of the financial and other affairs of the Company, and
neither of whom is under any compulsion to sell or to buy.
(ii) If the higher of the two appraisals is not ten
percent (10%) greater and the lower of the appraisals, the Fair Market
Value shall be the average of the two appraisals. If the higher of the
two appraisals is equal to or greater than ten percent (10%) more than
the lower of the two appraisals, then a third appraiser shall be
appointed by the two appraisers, and if they cannot agree on a third
appraiser, the American Arbitration Association shall appoint the third
appraiser. The third appraiser, regardless of who
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appoints him or her, shall have the same qualifications as the first
two appraisers.
(iii) The Fair Market Value after the appointment of
the third appraiser shall be the mean of the three appraisals.
(iv) The fees and expenses of the appraisers shall be
paid one-half by the Company and one-half by the Holder.
10. Registration.
(a) The Company and the holders of the Shares agree that if at
any time after the date hereof the Company shall propose to file a registration
statement with respect to any of its Common Stock on a form suitable for a
secondary (including its initial public offering), it will give notice in
writing to such effect to the registered holder(s) of the Shares at least thirty
(30) days prior to such filing, and, at the written request of any such
registered holder, made within ten (10) days after he receipt of such notice,
will include therein at the Company's cost and expense (including the fees and
expenses of counsel to such holder(s), but excluding underwriting discounts,
commissions and filing fees attributable to the Shares included therein) such of
the Shares as such holder(s) shall request; provided, however, that if the
offering being registered by the Company is underwritten and if the
representative of the underwriters certifies in writing that the inclusion
therein of the Shares would materially and adversely affect the sale of the
securities to be sold by the Company thereunder, then the Company shall be
required to include in the offering only that number of securities, including
the Shares, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among all selling shareholders according to the total
amount of securities entitled to be included therein owned by each selling
shareholder, but in no event shall the total amount of shares included in the
offering be less than the number of securities included in the offering by any
other single selling shareholder unless all of the Shares are included in the
offering).
(b) Whenever the Company undertakes to effect the registration
of any of the Shares, the Company shall, as expeditiously as reasonably
possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement covering such
Shares and use its best efforts to cause such registration statement to
be declared effective by the Commission as expeditiously as possible
and to keep such registration effective until the earlier of (A) the
date when all Shares covered by the registration statement have been
sold or (B) one hundred eighty (180) days from the date of the
registration statement; provided, that before filing a registration
statement or prospectus or any amendment or supplements thereto,
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the company will furnish to each Holder of Shares covered by such
registration statement and the underwriters, if any, copies of all such
documents proposed to be filed (excluding exhibits, unless any such
person shall specifically request exhibits), which documents will be
subject to the review of such Holders and underwriters, and the Company
will not file such registration statement or any amendment thereto or
any prospectus or any supplement thereto (including any documents
incorporated by reference therein) with the Commission if (A) the
underwriters, if any, shall reasonably object to such filing or (B) if
information in such registration statement or prospectus concerning a
particular selling Holder has changed and such Holder or the
underwriters, if any, shall reasonably object.
(ii) Prepare and file with the Commissions such
amendments and post-effective amendments to such registration statement
as may be necessary to keep such registration statement effective
during the period referred to in Section 10(b)(i) and to comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement, and cause the
prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed with the Commission pursuant to Rule
424 under the Securities Act.
(iii) Furnish to the selling Holder(s) such numbers
of copies of such registration statement, each amendment thereto, the
prospectus included in such registration statement (including each
preliminary prospectus), each supplement thereto and such other
documents as they may reasonably request in order to facilitate the
disposition of the Shares owned by them.
(iv) Use its best efforts to register and qualify
under such other securities laws of such jurisdictions as shall be
reasonably requested by any selling Holder and do any and all other
acts and things which may be reasonably necessary or advisable to
enable such selling Holder to consummate the disposition of the Shares
owned by such Holder, in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a
condition thereto qualify to transact business or to file a general
consent to service of process in any such states or jurisdictions.
(v) Promptly notify each selling Holder of the
happening or any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not
misleading and, at the request of any such Holder, the Company will
prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Shares, such prospectus
will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading.
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(vi) Provide a transfer agent and registrar for all
such Shares not later than the effective date of such registration
statement.
(vii) Enter into such customary agreements (including
underwriting agreements in customary form for a primary offering) and
take all such other actions as the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Shares (including, without limitation, effecting a stock split or a
combination of shares).
(viii) Make available for inspection by any selling
Holder or any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such selling Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company, and cause the officers, directors, employees and independent
accountants of the Company to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
(ix) Promptly notify the selling Holder(s) and the
underwriters, if any, of the following events and (if requested by any
such person) confirm such notification in writing: (A) the filing of
the prospectus or any prospectus supplement and the registration
statement and any amendment or post-effective amendment thereto and,
with respect to the registration statement or any post-effective
amendment thereto, the declaration of the effectiveness of such
documents, (B) any requests by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information, (C) the issuance or threat of issuance by the
Commission of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that
purpose and (D) the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threat of initiation of any
proceeding for such purposes.
(x) Make every reasonable effort to prevent the entry
of any order suspending the effectiveness of the registration statement
and obtain at the earliest possible moment the withdrawal of any such
order, if entered.
(xi) Cooperate with the selling Holder(s) and the
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing the Shares to be sold and not bearing any
restrictive legends, and enable such Shares to be in such lots and
registered in such names as the underwriters may request at least two
(2) business days prior to any delivery of the Shares to the
underwriters.
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(xii) Provide a CUSIP number for all the Shares not
later than the effective date of the registration statement.
(xiii) Prior to the effectiveness of the registration
statement and any post-effective amendment thereto and at each closing
of an underwritten offering, (A) make such representations and
warranties to the selling Holder(s) and the underwriters, if any, with
respect to the Shares and the registration statement as are customarily
made by issuers in primary underwritten offerings; (B) use its best
efforts to obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling Holders and the underwrites, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters by underwriters in connection with primary
underwritten offerings; (C) deliver such documents and certificates as
may be reasonably requested (1) by the holders of a majority of the
Shares being sold, and (2) by the underwriters, if any, to evidence
compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company; and (D) obtain opinions of counsel to the Company and
updates thereof (which counsel and which opinions shall be reasonably
satisfactory to the underwriters, if any), covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the selling
Holders and underwriters or their counsel. Such counsel shall also
state that no facts have come to the attention of such counsel which
cause them to believe that such registration statement, the prospectus
contained therein, or any amendment or supplement thereto, as of their
respective effective or issue dates, contains any untrue statement of
any material fact or omits to state any material fact necessary to make
the statements therein not misleading (except that no statement need be
made with respect to any financial statements, notes thereto or other
financial data or other expertized material contained therein). If for
any reason the Company's counsel is unable to give such opinion, the
Company shall so notify the Holders of the Shares and shall use its
best efforts to remove expeditiously all impediments to the rendering
of such opinion.
(xiv) Otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no
later than forty-five (45) days after the end of any twelve-month
period (or ninety (90) days, if such period is a fiscal year) (A)
commending at the end of any fiscal quarter in which the Shares are
sold to underwriters in a firm or best efforts underwritten offering,
or (B) if not sold to underwrites in such an offering, beginning with
the first month of the first fiscal quarter of the Company commencing
after the effective date of the registration statement, which
statements shall cover such twelve-month periods.
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(c) After the date hereof, the Company shall not grant to any
holder of securities of the Company any registration rights which have a
priority greater than or equal to those granted to Holders pursuant to this
warrant without the prior written consent of the Holder(s).
(d) The Company's obligations under Section 10(a) above with
respect to each holder of Shares are expressly conditioned upon such holders'
furnishing to the Company in writing such information concerning such holder and
the terms of such holder's proposed offering as the Company shall reasonably
request for inclusion in the registration statement. If any registration
statement including any of the Shares is filed, then the Company shall indemnity
each holder thereof (and each underwriter for such holder and each person, if
any, who controls such underwriter within the meaning of the Securities Act)
from any loss, claim, damage or liability arising out of, based upon or in any
way relating to any untrue statement of a material fact contained in such
registration statement or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except for any such statements or omission based on information furnished in
writing by such holder of the Shares expressly for use in connection with such
registration statement; and such holder shall indemnify the Company (and each of
its officers and directors who has signed such registration statement, each
director, each person, if any, who controls the Company within the meaning of
the Securities Act, each underwriter for the Company and each person, if any,
who controls such underwriter within the meaning of the Securities Act) and each
other such holder against any loss, claim, damage or liability arising from any
such statement or omission which was made in reliance upon information furnished
in writing to the Company by such holder of the Shares expressly for use in
connection with such registration statement.
(e) For purposes of this Section 10, all of the Shares shall
be deemed to be issued and outstanding.
11. Certain Notices. In case at any time the Company shall propose to:
(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in
stock or make any special dividend or other distribution to the holders of its
Common Stock;
(c) offer for subscription to the holders of any of its Common
Stock any additional shares of stock in any class or other rights;
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(d) reorganize, or reclassify the capital stock of the
Company, or consolidate, merge or otherwise combine with, or sell of all or
substantially all of its assets to, another corporation;
(e) voluntarily or involuntarily dissolve, liquidate or wind
up of the affairs of the Company; or
(f) redeem or purchase any shares of its capital stock or
securities convertible into its capital stock;
then, in any one or more of said cases, the Company shall give to the Holder of
the Warrant, by certified or registered mail, (i) at least twenty (20) days'
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Any notice required by clause (i) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and any notice required by
clause (ii) shall specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
12. Article and Section Headings. Numbered and titled article and
section headings are for convenience only and shall not be construed as
amplifying or limiting any of the provisions of this Warrant.
13. Notice. Any and all notices, elections or demands permitted or
required to be made under this Warrant shall be in writing, signed by the party
giving such notice, election or demand and shall be delivered personally,
telecopied, or sent by certified mail or overnight via nationally recognized
courier service (such as Federal Express), to the other party at the address set
forth below, or at such other address as may be supplied in writing and of which
receipt has been acknowledged in writing. The date of personal delivery or
telecopy or two (2) business days after the date of mailing (or the next
business day after delivery to such court service), as the case may be, shall be
the date of such notice, election or demand. For the purposes of this Warrant:
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The Address of Holder is: Wi-LAN Inc.
Xxxxx 000, 000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx
X0X 818
Attention: Xxxxx Xxxxxxxx
Telecopy No. 403/273-5100
with a copy to: Burnet, Xxxxxxxxx & Xxxxxx
First Canadian Center
1400, 000 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxxxx
Telecopy No. 403/260-0332
The Address of Company is: Digital Transmission Systems, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to: Xxxxxxxxxx, Xxxxxx & Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
14. Severability. If any provision(s) of this Warrant or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Warrant and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
15. Entire Agreement. This Warrant between the Company and Holder
represents the entire agreement between the parties concerning the subject
matter hereof, and all oral discussions and prior agreement are merged herein.
16. Governing Law and Amendments. This Warrant shall be construed and
enforced under the laws of the State of Tennessee applicable to contracts to be
wholly performed in such State. No amendment or modification hereof shall be
effective except in a writing executed by each of the parties hereto.
17. Counterparts. This Warrant may be executed in any number of
counterparts and be different parties to this Warrant in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Warrant.
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18. Consent to Jurisdiction; Exclusive Venue. The Company hereby
irrevocably consents to the jurisdiction of the United States District Court for
the Middle District of Tennessee and of all Tennessee state courts sitting in
Davidson County, Tennessee, for the purpose of any litigation to which Holder
may be a party and which concerns this Warrant. It is further agreed that venue
for any such action shall be exclusively with courts sitting in Davidson County,
Tennessee, unless Holder agrees to the contrary in writing.
19. Waiver of Trial in Jury. HOLDER AND THE COMPANY HEREBY KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS WARRANT.
20. Equity Participation. This Warrant is issued in connection with the
Debenture Purchase Agreement, as amended between the Company and Sirrom Capital
Corporation which was purchased by Wi-LAN as of January 7, 2000 (the "Loan
Agreement"). It is intended that this Warrant constitute an equity participation
under and pursuant to T.C.A. ss. 00-00-000, et seq., and that equity
participation be permitted under said statutes and not constitute interest on
the debt obligations of the Company to the Holder. If under any circumstances
whatsoever, fulfillment of any obligation of this Warrant, the Loan Agreement,
or any other agreement or document executed in connection with the Loan
Agreement, shall violate the lawful limit of any applicable usury statute or any
other applicable law with regard to obligations of like character and amount,
then the obligation to be fulfilled shall be reduced to such lawful limit, such
that in no event shall there occur, under this Warrant, the Loan Agreement, or
any other document or instrument executed in connection with the Loan Agreement,
any violation of such lawful limit, but such obligation shall be fulfilled to
the lawful limit. If any sum is collected in excess of the lawful limit, such
excess shall be applied to reduce the principal amount of the debt obligations
of the Company to the Holder.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date first above written.
COMPANY:
-------
DIGITAL TRANSMISSION SYSTEMS, INC.,
a Tennessee corporation
By:_______________________________
Title:____________________________
13
HOLDER:
------
WI-LAN INC.,
an Alberta corporation
By:_______________________________
Title:____________________________
14
