Exhibit 4.9
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THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF ARE EXEMPT FROM THE REGISTRATION 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 BANKRUPTCY COURT.
No. W Warrants
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.
[LOGO OF TOWER TECH, INC.]
CUSIP 891864 11 8
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)
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 $0.1 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 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 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.
ATTEST: Tower Tech, Inc.
Dated:
COUNTERSIGNED:
UMB BANK, N.A.
(KANSAS CITY, MISSOURI)
SEAL
By: as Warrant Agent By /s/ ILLEGIBLE By /s/ ILLEGIBLE
Authorized Signature Treasurer President
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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 intial 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 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.
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 provided, a Warrant Certificate representing the remaining
Warrants evidenced hereby will be issued and delivered to the Holder of this
Warrant Certificate.)
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:
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