Exhibit 4.3
DIGITAL MICROWAVE CORPORATION
FORM OF DEBT WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of ____________, ____ between Digital Microwave
Corporation, a Delaware corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), and _________________ as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "Indenture") dated as of
________, ____ between the Company and ___________, as trustee (the "Trustee"),
providing for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (the "Debt Securities"), to be issued in one
or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt Securities
or Common Stock -- [title of Debt Securities or Common Stock being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more warrants
(the "Warrants" or individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company
in connection with the issuance, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
Section 1.01. Issuance of Warrants. [If Warrants alone -- Upon issuance, each
Warrant Certificate shall evidence one or more Warrants.] [If Offered Securities
and Warrants --Warrants shall be [initially] issued in connection with the
issuance of the Offered Securities [but shall be separately transferable on and
after __________________ (the "Detachable Date")] [and shall not be separately
transferable] and each Warrant Certificate shall evidence one or more Warrants.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase a Warrant Security in the
principal amount of __________. [If Offered Securities and Warrants -- Warrant
Certificates shall be initially issued in units with the Offered Securities and
each Warrant Certificate included in such a unit shall evidence _______ Warrants
for each [__________ principal amount] [_________ shares] of Offered Securities
included in such unit.]
Section 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated _________________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) 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
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pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed, or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by the Chairman of the Board, the
President or a Vice President of the Company and by the Treasurer or one of the
Assistant Treasurers or the Secretary or one of the Assistant Secretaries of the
Company under its corporate seal reproduced thereon. Such signatures may be
manual or facsimile signatures of such authorized officers and may be imprinted
or otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein shall mean
any person in whose name at the time any Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose [If
Offered Securities and Warrants are not immediately detachable -- or upon the
register of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date].
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates evidencing
the right to purchase an aggregate principal amount not exceeding _________
aggregate principal amount of Warrant Securities (except as provided in Sections
2.03(c), 3.02 and 4.01) may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to _________ principal amount of
Warrant Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided or as provided in Section 2.03(c).
Section 1.04. Temporary Warrant Certificates. Pending the preparation of
definitive Warrant Certificates, the Company may execute, and upon the order of
the Company, the Warrant Agent shall authenticate and deliver, temporary Warrant
Certificates which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause definitive
Warrant Certificates to be prepared without unreasonable delay. After the
preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _____________________], without
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charge to the holder. Upon surrender for cancellation of any one or more
temporary Warrant Certificates the Company shall execute and the Warrant Agent
shall authenticate and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
Section 2.01. Warrant Price. During the period from __________________, through
and including _________________, the exercise price of each Warrant will be
_________ plus [accrued amortization of the original issue discount] [accrued
interest] from __________________. During the period from _________________,
through and including _________________, the exercise price of each Warrant will
be _________ plus [accrued amortization of the original issue discount] [accrued
interest] from _________________. [In each case, the original issue discount
will be amortized at a ____% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each _________ principal
amount of Warrant Securities is _________.]
Section 2.02. Duration of Warrants. Each Warrant may be exercised in whole at
any time, as specified herein, on or after [the date thereof] [________________]
and at or before 3:30 p.m., New York City time, on ________________ [or such
later date as the Company may designate, by notice to the Warrant Agent and the
holders of Warrant Certificates mailed to their addresses as set forth in the
record books of the Warrant Agent] (the "Expiration Date"). Each Warrant not
exercised at or before 3:30 p.m., New York City time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
Section 2.03. Exercise of Warrants. (a) During the period specified in Section
2.02 any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in [lawful money of the United States of America] [applicable
currency,] [in cash or by certified check or official bank check or by, in each
case,] [by bank wire transfer] in immediately available funds the Warrant Price
for each Warrant exercised, to the Warrant Agent at its corporate trust office
[or at ______________________], provided that such exercise is subject to
receipt within five business days of such [payment] [wire transfer] by the
Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificates as aforesaid, be deemed to be the date on which the Warrant
is exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of the Company maintained with it [if
non-dollar denominated funds -- or in such other account designated by the
Company] and shall advise the Company by telephone at the end of each day on
which a [payment] [wire transfer] for the exercise of Warrants is received of
the amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company and the Trustee of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonably
require.
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(c) As promptly as practicable after the exercise of any Warrant, the Company
shall issue, pursuant to the Indenture, in authorized denominations to or upon
the order of the holder of the Warrant Certificate evidencing such Warrant, the
Warrant Securities to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder. If fewer
than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate evidencing the
number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer involved
in the issue of the Warrant Securities, and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any Warrant
Security until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it and the
Company of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and of indemnity reasonably satisfactory to the Warrant
Agent and the Company and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the mutilated, lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the Trustee, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in his own
behalf and 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 his Warrant
Certificate in the manner provided in his Warrant Certificate and in this
Agreement.
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Section 3.04. Merger, Consolidation, Conveyance, Transfer or Lease. If at any
time there shall be a merger, consolidation, conveyance, transfer or lease of
assets subject to Section 801 of the Indenture, then in any such event the
successor or assuming corporation referred to therein shall succeed to and be
substituted for the Company, with the same effect, subject to such Indenture, as
if it had been named herein and in the Warrant as the Company; the Company shall
thereupon be relieved of any further obligation hereunder or under the Warrants,
and the Company as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name pursuant to such
Indenture, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In any
case of any such consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease
complies with the provisions of this Section 3.04 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable -- Upon] [If Offered
Securities with Warrants which are not immediately detachable -- Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable date upon] surrender at the corporate trust office of the
Warrant Agent [or _________________], Warrant Certificates evidencing Warrants
may be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at _______________________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or ______________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and
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entitled to the same benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange or registration of transfer.
Section 4.02. Treatment of Holders of Warrant Certificates. [If Offered
Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and
prior] [Prior] to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
holder of a Warrant Certificate as the owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
Section 5.01. Warrant Agent. The Company hereby appoints
__________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and _____________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred without
negligence, bad faith or willful misconduct by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the reasonable costs and
expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
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(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it, and
the written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in reliance upon
any Warrant Certificate, notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, Warrants, with
the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may engage
or be interested in any financial or other transaction with the Company and may
act on, or as depositary, trustee or agent for, any committee or body of Holders
of Warrant Securities or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed
to prevent the Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the Company, the
Warrant Agent shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no liability with
respect to any invalidity of this Agreement or any of the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon), all of
which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to perform only
such duties as are herein and in the Warrant Certificates specifically set forth
and no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of any of the Warrant Certificates or for the application by the Company
of the proceeds of the Warrant Certificates. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Company.
Section 5.03. Resignation and Appointment of Successor. (a) The Company agrees,
for the benefit of the holders from time to time of the Warrant Certificates,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an
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instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.02(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall commence a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor
Warrant Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. Amendment. This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the Warrant
Agent may deem necessary or desirable; provided that such action shall not
materially adversely affect the interests of the holders of the
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Warrant Certificates. The parties hereto may also modify or amend this Agreement
and the terms of the Warrant Certificates with the consent of the holders of not
less than a majority in number of the then outstanding unexercised Warrant
Certificates affected thereby; provided that no such modification or amendment
that accelerates the expiration date, increases the exercise price, reduces the
number of outstanding Warrant Certificates the consent of the holders of which
is required for any such modification or amendment, or otherwise materially
adversely affects the rights of the holders of the Warrant Certificates, may be
made without the consent of each holder affected thereby.
Section 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. Addresses. Any communication from the Company to the Warrant Agent
with respect to this Agreement shall be addressed to
__________________________________________________, Attention: _________________
and any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Digital Microwave Corporation, 000 Xxxx Xxxxxxx
Xxx, Xxx Xxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 6.04. Applicable Law. The validity, interpretation and performance of
this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by, and construed in
accordance with, the laws of the State of ________________.
Section 6.05. Delivery of Prospectus. The Company will furnish to the Warrant
Agent sufficient copies of a prospectus relating to the Warrant Securities
deliverable upon exercise of the Warrants (the "Prospectus"), and the Warrant
Agent agrees that upon the exercise of any Warrant, the Warrant Agent will
deliver to the holder of the Warrant Certificate evidencing such Warrant, prior
to or concurrently with the delivery of the Warrant Securities issued upon such
exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
Section 6.06. Obtaining of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under United States Federal and State laws (including
without limitation a registration statement in respect of the Warrants and
Warrant Securities under the Securities Act of 1933), which may be or become
requisite in connection with the issuance, sale, transfer, and delivery of the
Warrant Securities issued upon exercise of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement. Nothing in this
Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
Section 6.08. Headings. The descriptive headings of the several Articles and
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 6.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
9
Section 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
IN WITNESS WHEREOF Digital Microwave Corporation and _______________ have caused
this Agreement to be signed by their respective duly authorized officers, and
their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
DIGITAL MICROWAVE CORPORATION
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
[WARRANT AGENT]
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
10
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to ___________________ this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to _______________, Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DIGITAL MICROWAVE CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON _______________
No. ____ __________ Warrants
This certifies that _________________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 3:30 p.m., New York City time, on _____________ and] on or
before 3:30 p.m., New York City time, on _________________, _________ principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of Digital
Microwave Corporation (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: during the period
from __________________, through and including __________________ the exercise
price of each Warrant will be _________ plus [accrued amortization of the
original issue discount] [accrued interest] from __________________; during the
period from __________________, through and including ___________________, the
exercise price of each Warrant will be _________ plus [accrued amortization of
the original issue discount] [accrued interest] from _________________; [in each
case, the original issue discount will be amortized at a ____% annual rate,
computed on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months] (the "Warrant Price"). [The original issue
discount for each _________ principal amount of Warrant Securities is
_____________.] The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof, and by paying in
full [in lawful money of the United States of America] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or
_____________________], which is, on the date hereof, at the address on the
reverse hereof, and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined).
11
The term "holder" as used herein shall mean [if Offered Securities with Warrants
which are not immediately detachable -- , prior to ___________________ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form in denominations of
__________ and any integral multiples thereof. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of _________________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ____________________].
The Warrant Securities to be issued and delivered upon the exercise of the
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture (the "Indenture"), dated as of _____________
between the Company and _________________, as trustee (the "Trustee"), and will
be subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at ____________________].
[If Offered Securities with Warrants which are not immediately detachable --
Prior to __________________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, transfer of this] [if Offered Securities
with Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or __________________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.
[If Offered Securities with Warrants which are not immediately detachable --
Except as provided in the immediately preceding paragraph, after] [If Offered
Securities with Warrants which are immediately detachable or Warrants alone --
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or ______________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of principal of, premium, if any, or interest, if any,
on the Warrant Securities or to enforce any of the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any purpose until
countersigned by the Warrant Agent.
Dated as of ----------------------------.
DIGITAL MICROWAVE CORPORATION
By:
----------------------------------
12
Name:
--------------------------------
Its:
---------------------------------
Countersigned:
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
As Warrant Agent
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[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in [Dollars]
[applicable currency] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds the Warrant Price in full for Warrants exercised to [insert name
of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. ________________ [or ________________], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________ Warrants,
evidenced by this Warrant Certificate, to purchase _________ principal amount of
the [Title of Warrant Securities] (the "Warrant Securities") of Digital
Microwave Corporation and represents that he has tendered payment for such
Warrant Securities in [Dollars] [applicable currency] [in cash or by certified
check or official bank check or by bank wire transfer, in each case] [by bank
wire transfer] in immediately available funds to the order of Digital Microwave
Corporation, c/o [insert name and address of Warrant Agent], in the amount of
_________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with 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.
Dated: NAME ADDRESS
---- -------
(Insert Social Security or
Other Identifying Number ---------------------------
of Holder)
14
SIGNATURE
---------
Signature Guaranteed (Signature must conform in
------------------------ all respects to name of holder
as specified on face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member broker of the Nasdaq
National Market, New York, Midwest or Pacific
Stock Exchange)]
The warrants evidenced hereby may be exercised at the following address:
BY HAND AT
---------
BY MAIL AT
---------
[Instructions as to form and delivery of Warrant Securities and, if applicable,
Warrant Certificate evidencing unexercised Warrants -- complete as appropriate.]
15
Assignment
Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby
FOR VALUE RECEIVED ______________________________________ hereby sells, assigns
and transfers unto
(Please print name) (Please insert social security or
other identifying number)
(Address)
(City, 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 Warrant Agent 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 broker of the Nasdaq National Market, New York, Midwest
or Pacific Stock Exchange)
Signature Guaranteed
16
