WARRANT EXERCISE FEE AGREEMENT
AGREEMENT dated as of the ___ day of ___________, 1998 by and among
Tasin & Company, Inc. ("Tasin"), Worldwide Wireless, Inc. (the "Company") and
North American Transfer Co. (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, in connection with a public offering of 1,500,000 Units (a
maximum of 1,725,000 Units including the over-allotment option), the Company
proposes to issue, in accordance with an agreement dated ___________, 1998 by
and between the Company and the Warrant Agent (the "Warrant Agreement"),
Warrants to purchase shares of Common Stock; and
WHEREAS, the parties hereto wish to provide Tasin, a member of the
National Association of Securities Dealers, Inc. ("NASD") with certain rights on
an exclusive basis in connection with the exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
Section 1. Description of the Warrants. The Company's Warrants may be
exercised on or after _________, 1998 and expire at 5:00 p.m. New York time on
_________, 2003 (the "Expiration Date"), subject to (i) the Company's right to
extend the Expiration Date, at which time all rights evidenced by the Warrants
shall cease and the Warrants shall become void and (ii) certain redemption
rights commencing on or after __________, ____. In accordance with the
provisions of the Warrant Agreement, the holder of each Warrant shall have the
right to purchase from the Company, and the Company shall issue and sell to such
holders of Warrants, one fully paid and non-assessable share of the Company's
Common Stock for every Warrant exercised at an Exercise Price of $10.00 per
share, subject to adjustment as provided in the Warrant Agreement.
Section 2. Notification of Exercise. Within five (5) days of the last
day of each month commencing with the date that the Warrants first become
exercisable, but no sooner than _________, 1999, the Warrant Agent or the
Company will notify Tasin of each Warrant certificate which has been properly
completed and delivered for exercise by holders of Warrants during each such
month, the determination of the proper completion to be in the sole and absolute
reasonable discretion of the Company and the Warrant Agent. The Company or the
Warrant Agent will provide Tasin with such information, in connection with the
exercise of each Warrant, as Tasin shall reasonably request.
Section 3. Payment to Tasin. The Company hereby agrees to pay to Tasin
an amount equal to ten (10%) percent of the exercise price (i.e. $1.00 per share
based on the initial exercise price of the Warrants which is $10.00 per share)
for each Warrant exercised (the "Exercise Fee") a portion of which may be
allowed by Tasin to the dealer who solicited the exercise (which may also be
Tasin) provided that:
(a) such Warrant is exercised on or after the date the Warrants first
become exercisable, but no sooner than __________, 1999, which represents one
year from the effective date of the Company's Registration Statement;
(b) at the time of exercise, the market price of the Company's Common
Stock is higher than the applicable Exercise Price of the Warrant being
exercised;
(c) the holders of Warrants being exercised have indicated in writing,
either in the Form of Election contained on the specimen Warrant Certificate
attached hereto as Exhibit A, or by written documents signed and dated by the
holders and specifically stating that the exercise of such Warrants were
solicited by Tasin or another member of the NASD; and
(d) Tasin, and/or the member of the NASD which solicited the exercise
of Warrants delivers a certificate to the Company within five (5) business days
of receipt of information relating to such exercised Warrants from the Company
or the Warrant Agent in the form attached hereto as Exhibit B, stating that:
(1) the Warrants exercised were not held in a discretionary
account;
(2) Tasin or the member of the NASD which solicited the
exercise of Warrants did not, (unless granted an exemption by the Securities and
Exchange Commission from the provisions thereof), within the applicable number
of business days under Regulation M of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") immediately preceding the date of exercise of the
Warrant bid for or purchase the Common Stock of the Company or any securities of
the Company immediately convertible into or exchangeable for the Common Stock
(including the Warrants) or otherwise engage in any activity that would be
prohibited by Regulation M of the Exchange Act under the Securities Exchange Act
of 1934, as amended, with one engaged in a distribution of the Company's
securities; and
(3) in connection with the solicitation, it disclosed the
compensation it would receive upon exercise of the Warrant.
Section 4. Payment of the Exercise Fee. The Company hereby agrees to
pay over to Tasin within two (2) business days after receipt by the Company of
the certificate described in Section 3(d) above, the Exercise Fee out of the
proceeds it received from the applicable Exercise Price paid for the Warrants to
which the certificate relates.
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Section 5. Inspection of Records. Tasin may at any time during business
hours, at its expense, examine the records of the Company and the Warrant Agent
which relate to the exercise of the Warrants.
Section 6. Termination. Tasin shall be entitled to terminate this
Agreement prior to the exercise of all Warrants at any time upon five (5)
business days' prior notice to the Company and the Warrant Agent.
Notwithstanding any such termination notice, Tasin shall be entitled to receive
an Exercise Fee for the exercise of any Warrant for which it has already
delivered to the Company prior to any such termination the certificate required
by Section 3(d) of this Agreement.
Section 7. Notices. Any notice or other communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed sufficiently given if sent by first class certified mail, return
receipt requested, postage prepaid, addressed as follows: if to the Company at
X.X. Xxx 000, Xxxxxxxx, XX 00000, copy to Xxxxx Xxxxxx, Esq., Tolins &
Lowenfeld, 00 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000, if to Tasin at 0000 Xxxxx
Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, copy to Xxxxxx Xxxxx, Esq., Xxxxxx Xxxxx
P.C., 000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000; and if to the
Warrant Agent at North American Transfer Co. at 000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx,
XX 00000, or such other address as such party shall have given notice to other
parties hereto in accordance with this Section. All such notices or other
communications shall be deemed given three (3) business days after mailing, as
aforesaid.
Section 8. Supplements and Amendments. The Company, the Warrant Agent
and Tasin may from time-to-time supplement or amend this Agreement by a written
instrument signed by the party to be charged, without the approval of any
holders of Warrants in order to cure any ambiguity or to correct or supplement
any provisions contained herein or to make any other provisions in regard to
matters or questions arising hereunder which the Company, the Warrant Agent and
Tasin may deem necessary or desirable and which do not adversely affect the
interests of the holders of Warrants.
Section 9. Assignment. This Agreement may not be assigned by any party
without the express written approval of all other parties, except that Tasin may
assign this Agreement to its successors.
Section 10. Governing Law. This Agreement will be deemed made under the
laws of the State of New York with respect to matters of contract law and for
all purposes shall be governed by and construed in accordance with the internal
laws of said State, without regard to the conflicts of laws provisions thereof.
Section 11. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give any person or corporation other than the Company, the
Warrant Agent and Tasin any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and exclusive benefit of,
and be binding upon, the
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Company, the Warrant Agent and Tasin and their respective successors and
permitted assigns.
Section 12. Descriptive Headings. The descriptive headings of the
sections of this Agreement are inserted for convenience only and shall not
control or affect the meanings or construction of any of the provisions hereof.
Section 13. Superseding Agreement. This Agreement supersedes any and
all prior agreements between the parties with respect to the subject matter
hereof.
Section 14. Exclusive Agreement. It is understood that this agreement
is on an exclusive basis to solicit the exercise of the Warrants and that the
Company may not engage other broker-dealers to solicit the exercise of Warrants
without the consent of Tasin.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WORLDWIDE WIRELESS, INC.
By:
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TASIN & COMPANY, INC.
By:
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NORTH AMERICAN TRANSFER CO.
By:
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CERTIFICATE
The undersigned, being the ________________ of Tasin & Company, Inc. ("Tasin")
pursuant to Section 3(d) of the Warrant Exercise Fee Agreement relating to the
exercise of Warrants dated ____________, 1998 between Worldwide Wireless, Inc.
(the "Company") and North American Transfer Co. (the "Warrant Agent") hereby
certifies that:
1. The Company or the Warrant Agent has notified Tasin that
______________ Warrants (as defined in the Agreement) have been exercised during
_____________, 199___.
2. The exercise of ______________ of such Warrants was solicited by
Tasin.
3. Such Warrants were not held in a discretionary account.
4. ______________ did not, within _____ business days immediately
preceding _______________ 199___, bid for or purchase the Common Stock of the
Company or any securities of the Company immediately convertible into or
exchangeable for the Common Stock (including Warrants) or otherwise engage in
any activity that would be prohibited by Regulation M under the Securities
Exchange Act of 1934, as amended, to one engaged in a distribution of the
Company's securities.
5. In connection with the solicitation of the exercise of the Warrants,
_____________ disclosed the compensation it will receive to holders of the
Warrants.
DATED: _______________, 199___
TASIN & COMPANY, INC.
By:
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