Exhibit No. 4.2 Warrant Agreement (including form of Warrant Certificate).
FIRSTLINK COMMUNICATIONS, INC.
AND
AMERICAN SECURITIES TRANSFER & TRUST, INC.
WARRANT AGENT
WARRANT AGREEMENT
DATED AS OF _______, 1998
TABLE OF CONTENTS
Section
Number Title Page
1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 3
2 Warrants and Issue of Warrant Certificates . . . . . . . . . 5
3 Form of Warrant Certificates . . . . . . . . . . . . . . . . 5
4 Term of Warrants; Exercise of Warrants . . . . . . . . . . . 6
5 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Reservation of Warrant Shares. . . . . . . . . . . . . . . . 8
7 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . 8
8 Warrant Shares to be Fully Paid. . . . . . . . . . . . . . . 8
9 Limitation on Transfer . . . . . . . . . . . . . . . . . . . 8
10 Adjustment of Exercise Price and Number of Shares. . . . . . 9
11 Merger or Consolidation of Company . . . . . . . . . . . . .12
12 Modification of Agreement. . . . . . . . . . . . . . . . . .12
13 Notices to Warrant Holders . . . . . . . . . . . . . . . . .12
14 No Rights as Shareholder . . . . . . . . . . . . . . . . . .13
15 Warrant Agent. . . . . . . . . . . . . . . . . . . . . . . .13
16 Merger, Consolidation or Change of Name of Warrant Agent . .14
17 Change of Warrant Agent. . . . . . . . . . . . . . . . . . .15
18 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .15
19 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . .16
20 Miscellaneous Provisions . . . . . . . . . . . . . . . . . .16
THIS WARRANT AGREEMENT dated as of _______________, 1998, is between
FirstLink Communications, Inc. (the "Company"), an Oregon corporation, and
American Securities Transfer & Trust, Inc. (called, as well as any successor
acting as warrant agent under this Agreement, the "Warrant Agent").
RECITALS
1. The Company proposes to issue shares ("Shares") of its no par
value Common Stock ("Common Stock") and Common Stock Purchase Warrants
("Warrants") pursuant to Registration Statement No. 33 - (the "Registration
Statement") that the Company has filed with the United States Securities and
Exchange Commission; and
2. Warrants will be evidenced by a "Warrant Certificate"; and
3. Two Warrants will entitle the Warrant Holder to purchase one
Share of Common Stock (a "Warrant Share"); and
4. The Company desires to enter into this agreement to establish the
terms and conditions of the Warrants, to set forth the rights of the
registered holders of the Warrants, and to provide for the issuance, transfer
and exercise of the Warrants and other matters; and
5. The Company desires the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing so to act under the terms of this
Agreement;
NOW THEREFORE, in consideration of the mutual agreements stated in this
Agreement, the Company and the Warrant Agent agree as follows:
TERMS OF WARRANTS
SECTION 1 DEFINITIONS
The following terms used in this agreement shall have the following
meanings (unless otherwise expressly provided herein):
THE "ACT." The Securities Act of 1933, as amended.
THE "COMMISSION." The Securities and Exchange Commission.
THE "COMPANY." FirstLink Communications, Inc., a corporation.
"COMMON STOCK." The Common Stock, no par value per share, of the
Company, whether now or hereafter authorized, holders of which have the right
to participate in the distribution of earnings and assets of the Company
without limit as to the amount or percentage.
"CURRENT MARKET PRICE." The Current Market Price shall be determined as
follows:
(a) if the security at issue is listed on a national securities
exchange or admitted to unlisted trading privileges on such an exchange or
quoted on either the Nasdaq National Market or on the Nasdaq Small Cap
Market, the Current Market Price shall be the last reported sale price of
that security on such exchange or system on the day for which the Current
Market Price is to be calculated; or, if no such sale is made on such day,
the average of the highest closing bid and lowest asked price for such day on
such exchange or system; or
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(b) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges, the Current Market Price shall be
the last reported sale price of that security on the OTC Bulletin Board on
the day for which the Current Market Price is to be calculated; or if no such
sale is made on such day, the average of the last reported highest bid and
lowest asked prices quoted on the OTC Bulletin Board on such day; or
(c) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges and bid and asked prices are not
reported, the Current Market Price shall be determined in such reasonable
manner as may be prescribed from time to time by the Board of Directors of
the Company, subject to the objection and arbitration procedure as described
in Sections 10.9 and 19 below.
"EFFECTIVE DATE." __________ .
"EXERCISE DATE." The date of surrender for exercise of any Warrant
Certificate, provided the exercise form on the back of the Warrant
Certificate or a form substantially similar thereto has been completed in
full by the Warrant Holder or a duly appointed attorney and the Warrant
Certificate is accompanied by payment in full of the Exercise Price.
"EXERCISE PERIOD." The period commencing on the date the Warrants are
issued and extending to and through the Expiration Date.
"EXERCISE PRICE." $_______ per Share, as modified in accordance with
Section 10, below.
"EXPIRATION DATE." 5:00 p.m. Portland, Oregon, local time on
_____________, subject to the terms provided in Section 5 hereof for
redemption; provided, however, if such date shall be a holiday or a day on
which banks are authorized to close in the State of Oregon, the Expiration
Date shall mean 5:00 p.m. Portland, Oregon, local time on the next following
day which in the State of Oregon is not a holiday or a day on which banks
are authorized to close. If the Company redeems the Warrants as provided in
Section 5 of this Agreement, the Expiration Date shall be the date fixed for
redemption.
"HOLDER" OR "WARRANT HOLDER." The person to whom a Warrant Certificate
is issued, and any valid transferee thereof pursuant to Section 9 below.
"NASDAQ." The electronic inter-dealer quotation system operated by The
Nasdaq Stock Market, Inc.
"OTC BULLETIN BOARD." An electronic quotation medium operated by The
Nasdaq Stock Market, Inc.
"PUBLIC OFFERING." The public offering by the Company of 1,000,000
Shares and 1,000,000 Warrants pursuant to an underwriting agreement dated as
of ______ between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Securities Corporation
("▇▇▇▇▇▇▇ Davidson") as Representative of the several Underwriters named in
the underwriting agreement.
"WARRANTS." The Warrants issued in accordance with the terms of this
Agreement and any Warrants issued in substitution for or replacement of such
Warrants, or any Warrants into which such Warrants may be divided or
exchanged.
"WARRANT SHARES." The Common Stock receivable upon exercise or
conversion of a Warrant, and the Common Stock underlying the unexercised
portion of a Warrant.
1.15 "TERMINATION OF BUSINESS." Any sale, lease or exchange of all,
or substantially all, of the Company's assets or business or any dissolution,
liquidation or winding up of the Company.
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SECTION 2 WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES
2.1 DESCRIPTION OF WARRANTS. Each Warrant shall initially entitle
the Warrant Holder to purchase one share of Common Stock on exercise thereof,
subject to modification and adjustment as hereinafter provided in Section 10.
Warrant Certificates representing up to 1,150,000 Warrants and evidencing the
right to purchase an aggregate of up to 575,000 shares of Common Stock of the
Company shall be executed by the proper officers of the Company. The Company
shall deliver Warrant Certificates in required whole number denominations to
the person entitled thereto in connection with the original issuance of
Warrant Certificates or any transfer or exchange permitted under this
Agreement.
2.2 WARRANT SHARES. Except as provided in Section 3.4 hereof,
certificates representing the Warrant Shares shall be issued only on or after
the Exercise Date upon exercise of the Warrants or upon transfer or exchange
of the Warrant Shares following exercise of the Warrants.
SECTION 3 FORM OF WARRANT CERTIFICATE
3.1 FORM OF CERTIFICATES. The Warrant Certificates shall be
substantially in the form attached hereto as Exhibit A and may have such
letters, numbers or other marks of identification and such legends, summaries
or endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement. The Warrant Certificates shall be dated as of the date of
issuance, whether on initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates.
3.2 EXECUTION OF CERTIFICATES. The Warrant Certificates shall be
executed on behalf of the Company by its President and Secretary, by manual
signatures or by facsimile signatures printed thereon, and shall have
imprinted thereon a facsimile of the Company's seal. If any person whose
facsimile signature has been placed upon any Warrant Certificate as the
signature of an officer of the Company shall have ceased to be such officer
before such Warrant Certificate is countersigned, issued and delivered, such
Warrant Certificate may be countersigned, issued and delivered with the same
effect as if such person had not ceased to be such officer. Any Warrant
Certificate may be signed by, or may bear the facsimile signature of, any
person who at the actual date of the preparation of such Warrant Certificate
shall be a proper officer of the Company to sign such Warrant Certificate
even though such person was not such an officer upon the date of this
Agreement.
3.3 COUNTERSIGNATURES. Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose
unless so countersigned. The Warrant Agent is hereby authorized to
countersign and deliver to, or in accordance with the instructions of, any
Warrant Holder any Warrant Certificate which is properly issued under the
terms of this Agreement.
3.4 MUTILATED, LOST, STOLEN, OR DESTROYED CERTIFICATE. In case the
certificate or certificates evidencing the Warrants shall be mutilated, lost,
stolen or destroyed, the Company shall, at the request of the Warrant Holder,
issue and deliver in exchange and substitution for and upon cancellation of
the mutilated certificate or certificates, or in lieu of and substitution for
the certificate or certificates lost, stolen or destroyed, a new Warrant
Certificate or Certificates of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence satisfactory to the
Company of such loss, theft or destruction of such Warrant and a bond of
indemnity, if requested, also satisfactory in form and amount, at the
applicant's cost. Applicants for such substitute Warrant Certificate shall
also comply with such other reasonable regulations and pay such other
reasonable charges as the Company may prescribe.
3.5 EXCHANGE OF CERTIFICATE. Any Warrant Certificate may be
exchanged for another certificate or certificates entitling the Warrant
Holder to purchase a like aggregate number of Shares as the certificate or
certificates surrendered then entitled such Warrant Holder to purchase. Any
Warrant Holder desiring to exchange a Warrant Certificate shall make such
request in writing delivered to the Company, and shall surrender, properly
endorsed, with signatures guaranteed, the certificate evidencing the Warrant
to be so exchanged. Thereupon, the Company shall execute and deliver to the
person entitled thereto a new Warrant Certificate as so requested.
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SECTION 4 TERM OF WARRANTS; EXERCISE OF WARRANTS
4.1 EXERCISE OF WARRANT. Subject to the terms of this Agreement, the
Warrant Holder shall have the right, at any time during the Exercise Period, to
purchase from the Company up to the number of fully paid and nonassessable
Shares to which the Warrant Holder may at the time be entitled to purchase
pursuant to this Agreement, upon surrender to the Company, at its principal
office, of the certificate evidencing the Warrants to be exercised, together
with the purchase form on the reverse thereof, duly filled in and signed, and
upon payment to the Company of the Exercise Price for the number of Shares in
respect of which such Warrants are then exercised, but in no event for less than
100 Shares (unless fewer than an aggregate of 100 shares are then purchasable
under all outstanding Warrants held by a Warrant Holder).
4.2 PAYMENT OF EXERCISE PRICE. Payment of the aggregate Exercise Price
shall be made in cash or by check, or any combination thereof.
4.3 DELIVERY OF SHARE CERTIFICATE. Subject to the provisions of
Section 9, upon receipt of a Warrant Certificate with the exercise form thereon
duly executed, together with payment in full of the Exercise Price for the
Warrant Shares being purchased by such exercise, or upon exercise of the
Conversion Right described in Section 4.6, the Warrant Agent shall requisition
from the Company's transfer agent (which transfer agent may be the Warrant Agent
pursuant to its appointment therefor separately from this Agreement),
certificates for Warrant Shares and upon receipt shall make delivery of
certificates evidencing the total number of whole Warrant Shares for which
Warrants are then being exercised or converted, together with cash as provided
in Section 4.8 hereof in respect of any fractional Warrant Shares otherwise
issuable upon such surrender. The certificates shall be in such names and
denominations as are required for delivery to, or in accordance with the
instructions of the Warrant Holder; provided that if fewer than all Warrant
Shares issuable on exercise of a Warrant Certificate are purchased, the Warrant
Agent (if so requested) shall issue such balance Warrant Certificate for the
balance of the Warrant Shares. Such certificates for the Warrant Shares shall
be deemed to be issued, and the person to whom such Warrant Shares are issued of
record shall be deemed to have become a holder of record of such Warrant Shares,
as of the date of the surrender of such Warrant Certificate and payment of the
Exercise Price, whichever shall last occur; provided further that if the books
of the Company with respect to the Warrant Shares shall be closed as of such
date, the certificates for such Warrant Shares shall be deemed to be issued, and
the person to whom such Warrant Shares are issued of record shall be deemed to
have become a record holder of such Warrant Shares, as of the date on which such
books shall next be open (whether before, on or after the applicable Expiration
Date) but at the Exercise Price and upon the other conditions in effect upon the
date of surrender of the Warrant Certificate and payment of the Exercise Price,
whichever shall have last occurred, to the Warrant Agent.
4.4 CANCELLATION OF CERTIFICATES. All Warrant Certificates surrendered
upon exercise of Warrants shall be canceled.
4.5 DELIVERY OF PROCEEDS OF EXERCISE. Within two days after the
receipt thereof in cleared funds, the Warrant Agent shall deliver to the Company
all proceeds received from Warrant Holders on exercise of the Warrants.
4.6 REGISTRATION STATEMENT. If any Warrant Shares issuable upon the
exercise of Warrants require the maintenance of a current registration statement
under the Securities Act of 1933, as amended (the "Act"), with respect to such
Warrant Shares before such Warrant Shares may be validly and lawfully issued,
the Company will in good faith endeavor to maintain such current registration
statement under the Act, provided that in no event shall such Warrant Shares be
issued, and the Company shall have the authority to suspend the exercise of any
or all Warrants while such registration statement is not current. Similarly, a
Warrant Holder residing in a state where a required registration or governmental
approval of issuance of the Warrant Shares is not in effect as of or has not
been obtained within a reasonable time after the surrender date of the Warrant
Certificate for exercise shall not be entitled to exercise Warrants unless in
the opinion of counsel such registration or approval in such state shall not be
required, or the Company authorizes issuance. In such event, the Warrant Holder
shall be entitled to transfer the Warrants to others, but only prior to the
Expiration Date for the Warrants being transferred.
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4.7 FRACTIONAL SHARES. On exercise of the Warrants by the Warrant
Holders, the Company shall not be required to deliver fractions of shares of
Common Stock; provided, however, that the Company shall purchase such fraction
for an amount in cash equal to the Current Market Price of such fraction,
computed on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise. By accepting a Warrant
Certificate, the holder thereof expressly waives any right to receive a Warrant
Certificate evidencing any fraction of a Warrant or to receive any fractional
share of securities upon exercise of a Warrant, except as expressly provided in
this Section 4.7.
4.8 STATUS AS SHAREHOLDER. Upon receipt of the Warrant Certificate by
the Company as described in this Section, the Holder shall be deemed to be the
holder of record of the Warrant Shares issuable upon such exercise,
notwithstanding that the transfer books of the Company may then be closed or
that certificates representing such Warrant Shares may not have been prepared or
actually delivered to the holder.
SECTION 5 REDEMPTION
5.1 RIGHT TO REDEEM. The Company may, at its option, redeem the
Warrants in whole or in part on a pro rata basis for a redemption price of $.05
per Warrant (the "Redemption Price") on 45 days prior written notice to the
Warrant Holders. The right to redeem the Warrants may be exercised by the
Company only in the event (i) the closing bid price or closing sale price, as
the case may be, for the Common Stock has exceeded the Exercise Price by at
least 50% during a period of at least 20 of the 30 trading days immediately
preceding the date of mailing of the notice of redemption, (ii) the Company has
in effect a current registration statement (or a post-effective amendment to an
existing registration statement) with the Commission registering the Warrant
Shares, and (iii) the expiration of the 45 days notice period is within the
Exercise Period. In the event the Company exercises its right to redeem the
Warrants, the Expiration Date will be deemed to be, and the Warrants will be
exercisable until the close of business on, the date fixed for redemption in
such notice (the "Redemption Date"). If any Warrant called for redemption is
not exercised by such time, it will cease to be exercisable and the Warrant
Holder thereof will be entitled only to the Redemption Price.
5.2 TERMINATION OF RIGHTS. From and after the Redemption Date, all
rights of the holders of record of redeemed Warrants (except the right to
receive the Redemption Price) shall terminate, but only if (i) no later than one
day prior to the Redemption Date the Company shall have irrevocably deposited
with the Warrant Agent, as paying agent, a sufficient amount to pay on the
Redemption Date the Redemption Price for all Warrants called for redemption, and
(ii) the notice of redemption shall have stated the name and address of the
Warrant Agent and the intention of the company to deposit such amount with the
Warrant Agent no later than one day prior to the Redemption Date.
5.3 PAYMENT OF REDEMPTION PRICE. The Warrant Agent shall pay to the
holders of record of redeemed Warrants all amounts received by the Warrant Agent
for the redemption of warrants to which the holders of record of such redeemed
Warrants who shall have surrendered their Warrants are entitled. Any amounts
deposited by the Company with the Warrant Agent to pay the Redemption Price for
all Warrants called for redemption that are not required for redemption of
Warrants may be withdrawn by the Company. Any amounts deposited by the Company
with the Warrant Agent to pay the Redemption Price for all Warrants called for
redemption that shall be unclaimed six months after the Redemption Date may be
withdrawn by the Company, and thereafter the holders of the Warrants called for
redemption for which such funds were deposited shall look solely to the Company
for payment. The Company shall be entitled to the interest, if any, on funds
deposited with the Warrant Agent, and the Warrant Holders of redeemed Warrants
shall have no right to any such interest.
5.4 FAILURE TO MAKE DEPOSIT. If the Company fails to make a sufficient
deposit with the Warrant Agent as provided above, the Warrant Holder of any
Warrants called for redemption may at the option of the holder (i) by notice to
the Company declare the notice of redemption a nullity as to such holder, or
(ii) maintain an action against the Company for the Redemption Price. If the
Warrant Holder brings such an action, the Company will pay the reasonable
attorney's fees of the Warrant Holder. If the Warrant Holder fails to bring an
action against the Company for the Redemption Price within 60 days after the
Redemption Date, the Warrant Holder shall be deemed to have elected to
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declare the notice of redemption to be a nullity as to such holder and such
notice shall be without any force or effect as to such holder.
SECTION 6. RESERVATION OF WARRANT SHARES
There has been reserved, and the Company shall at all times keep reserved
so long as the Warrants remain outstanding, out of its authorized and unissued
Common Stock, such number of shares of Common Stock as shall be subject to
purchase under the Warrants. The Company covenants that all Warrant Shares that
may be issued and delivered to a Warrant Holder upon the exercise of a Warrant
and payment of the Exercise Price shall be validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issuance thereof. Every transfer agent for the Common Stock and other securities
of the Company issuable upon the exercise of the Warrants will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
and other securities as shall be requisite for such purpose. The Company will
keep a copy of this Agreement on file with every transfer agent for the Common
Stock and other securities of the Company issuable upon the exercise of the
Warrants. The Company will supply every such transfer agent with duly executed
stock and other certificates, as appropriate, for such purpose and will provide
or otherwise make available any cash which may be payable as provided in
Sections 4.7 and 7 hereof.
SECTION 7 PAYMENT OF TAXES
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of the Warrants or the Warrant Shares and any tax (except
federal or state income tax) which may be payable in respect of any transfer of
the Warrants or the Warrant Shares.
SECTION 8 WARRANT SHARES TO BE FULLY PAID
The Company covenants that all Warrant Shares that may be issued and
delivered to a Holder of this Warrant upon the exercise of this Warrant and
payment of the Exercise Price, will be upon such delivery, validly and duly
issued, fully paid and nonassessable.
SECTION 9 REGISTRATION OF TRANSFER
9.1. EXCHANGE OF CERTIFICATE. A Warrant Certificate may be exchanged
for another certificate or certificates entitling the Warrant Holder to purchase
a like aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitled such Warrant Holder to purchase. Any Warrant Holder
desiring to exchange a Warrant Certificate shall make such request in writing
delivered to the Company, and shall surrender, properly endorsed, with
signatures guaranteed, the certificate evidencing the Warrant to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant Certificate as so requested.
9.2 TRANSFER. The Warrants may be transferred in whole or in part.
Warrant Certificates representing the Warrants to be transferred shall be
surrendered to the Warrant Agent, properly endorsed, with signatures guaranteed.
Thereupon, the Company shall execute and deliver to the persons entitled thereto
the Warrant Certificate or Certificates to which the holder making the transfer
and the person to whom the transfer is made are entitled and the Warrant Agent
shall promptly cancel the surrendered Warrant Certificate.
9.3 OWNERSHIP RECORDS. The Warrant Agent shall keep books for
registration of ownership and transfer of Warrant Certificates. Such books
shall show the names and addresses of the respective holders of the Warrant
Certificates and the number of Warrants evidenced by each such Warrant
Certificate. All Warrant Certificates presented for registration of transfer
shall be duly endorsed or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company and the Warrant Agent. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall caused to be executed, issued and delivered to the
transferee or transferees a new Warrant Certificate or Certificates representing
an equal aggregate number of Warrants.
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9.4 OWNERSHIP PRIOR TO PRESENTMENT. Prior to due presentment for
registration of transfer thereof, the Company may treat the Warrant Holder as
the absolute owner thereof (notwithstanding any notations of ownership or
writing thereon made by anyone other than the Company) and the parties hereto
shall not be affected by any notice to the contrary.
SECTION 10 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
The number and kind of securities purchasable upon the exercise of the
Warrants and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
10.1 ADJUSTMENTS. The number of Warrant Shares purchasable upon the
exercise of the Warrants shall be subject to adjustments as follows:
(a) In case the Company shall (i) pay a dividend in Common Stock
or securities convertible into Common Stock or make a distribution to its
stockholders in Common Stock or securities convertible into Common Stock; (ii)
subdivide its outstanding Common Stock; (iii) combine its outstanding Common
Stock into a smaller number of shares of Common Stock; or (iv) issue by
reclassification of its Common Stock other securities of the Company; then the
number of Warrant Shares purchasable upon exercise of the Warrants immediately
prior thereto shall be adjusted so that the Warrant Holder shall be entitled to
receive the kind and number of Warrant Shares or other securities of the Company
which it would have owned or would have been entitled to receive immediately
after the happening of any of the events described above, had such Warrants been
exercised immediately prior to the happening of such event or any record date
with respect thereto. Any adjustment made pursuant to this subsection 10.1(a)
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) If, prior to the expiration of the Warrants by exercise, by
their terms, or by redemption, the Company shall be recapitalized by
reclassifying its outstanding shares of Common Stock into shares with a
different par value, or by changing its outstanding shares of Common Stock into
shares without par value or in the event of any other material change of the
capital structure of the Company or of any successor corporation by reason of
any reclassification, recapitalization or conveyance, prompt, proportionate,
equitable, lawful and adequate provision shall be made whereby any Warrant
Holder shall thereafter have the right to purchase, on the basis and the terms
and conditions specified in this Agreement, in lieu of the Warrant Shares
theretofore purchasable on the exercise of any Warrant, such securities or
assets as may be issued or payable with respect to or in exchange for the number
of Warrant Shares theretofore purchasable on exercise of the Warrants had such
reclassification, recapitalization or conveyance not taken place; and in any
such event, the rights of any Warrant Holder to any adjustment in the number of
Warrant Shares purchasable on exercise of such Warrant, as set forth above,
shall continue to be preserved in respect of any stock, securities or assets
which the Warrant Holder becomes entitled to purchase.
(c) In case the Company shall issue rights, options, warrants, or
convertible securities to all or substantially all holders of its Common Stock,
without any charge to such holders, entitling them to subscribe for or purchase
Common Stock at a price per share which is lower at the record date mentioned
below than the then Current Market Price, the number of Shares thereafter
purchasable upon the exercise of each Option shall be determined by multiplying
the number of Shares theretofore purchasable upon exercise of the Options by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options, warrants
or convertible securities plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding immediately prior to the issuance
of such rights, options, warrants, or convertible securities plus the number of
shares which the aggregate offering price of the total number of shares offered
would purchase at such Current Market Price. Such adjustment shall be made
whenever such rights, options, warrants, or convertible securities are issued,
and shall become effective immediately and retroactively to the record date for
the determination of shareholders entitled to receive such rights, options,
warrants, or convertible securities.
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(d) In case the Company shall distribute to all or substantially
all holders of its Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions out of earnings) or rights, options,
warrants, or convertible securities containing the right to subscribe for or
purchase Common Stock (excluding those referred to in subsection 10.1(b) above),
then in each case the number of Warrant Shares thereafter purchasable upon the
exercise of the Warrants shall be determined by multiplying the number of
Warrant Shares theretofor purchasable upon exercise of the Warrants by a
fraction, of which the numerator shall be the then Current Market Price on the
date of such distribution, and of which the denominator shall be such Current
Market Price on such date minus the then fair value (determined as provided in
subsection 10.1(g)(y) below) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights, options, warrants,
or convertible securities applicable to one share. Such adjustment shall be
made whenever any such distribution is made and shall become effective on the
date of distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(e) No adjustment in the number of Warrant Shares purchasable
pursuant to the Warrants shall be required unless such adjustment would require
an increase or decrease of at least one percent in the number of Warrant Shares
then purchasable upon the exercise of the Warrants or, if the Warrants are not
then exercisable, the number of Warrant Shares purchasable upon the exercise of
the Warrants on the first date thereafter that the Warrants become exercisable;
provided, however, that any adjustments which by reason of this subsection
10.1(e) are not required to be made immediately shall be carried forward and
taken into account in any subsequent adjustment.
(f) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrant is adjusted, as herein provided, the Exercise Price
payable upon exercise of the Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Warrant Shares purchasable upon the exercise of
the Warrant immediately prior to such adjustment, and of which the denominator
shall be the number of Warrant Shares so purchasable immediately thereafter.
(g) For the purpose of this subsection 10.1, the term "Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time, as a result of
an adjustment made pursuant to this Section 10, the Warrant Holder shall become
entitled to purchase any securities of the Company other than Common Stock, (y)
if the Warrant Holder's right to purchase is on any other basis than that
available to all holders of the Company's Common Stock, the Company shall obtain
an opinion of an independent investment banking firm valuing such other
securities; and (z) thereafter the number of such other securities so
purchasable upon exercise of the Warrants shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Warrant Shares contained in this Section 10.
(h) Upon the expiration of any rights, options, warrants, or
conversion privileges, if such shall have not been exercised, the number of
Warrant Shares purchasable upon exercise of the Warrants, to the extent the
Warrants have not then been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had they been
originally adjusted (or had the original adjustment not been required, as the
case may be) on the basis of (i) the fact that the only shares of Common Stock
so issued were the shares of Common Stock, if any, actually issued or sold upon
the exercise of such rights, options, warrants, or conversion privileges, and
(ii) the fact that such shares of Common Stock, if any, were issued or sold for
the consideration actually received by the Company upon such exercise plus the
consideration, if any, actually received by the Company for the issuance, sale
or grant of all such rights, options, warrants, or conversion privileges whether
or not exercised; provided, however, that no such readjustment shall have the
effect of decreasing the number of Warrant Shares purchasable upon exercise of
the Warrants by an amount in excess of the amount of the adjustment initially
made in respect of the issuance, sale, or grant of such rights, options,
warrants, or conversion rights.
10.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in subsection
10.1, no adjustment in respect of any dividends or distributions out of earnings
shall be made during the term of the Warrants or upon the exercise of the
Warrants.
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10.3 NO ADJUSTMENT IN CERTAIN CASES. No adjustments shall be made
pursuant to Section 4 hereof in connection with the issuance of the Common Stock
sold as part of the Public Offering sale or the issuance of Warrant Shares upon
exercise of the Warrants. No adjustments shall be made pursuant to Section 10
hereof in connection with the grant or exercise of presently authorized or
outstanding options to purchase, or the issuance of shares, of Common Stock
under the Company's director or employee benefit plans disclosed in the
Registration Statement relating to the Public Offering.
10.4 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property, assets, or business of the
Company as an entirety or substantially as an entirety, the Company or such
successor or purchasing corporation, as the case may be, shall execute an
agreement that the Warrant Holder shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action to purchase,
upon exercise of the Warrants, the kind and amount of shares and other
securities and property which it would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, or conveyance
had the Warrants been exercised immediately prior to such action. In the event
of a merger described in Section 368(a)(2)(E) of the Internal Revenue Code of
1986, in which the Company is the surviving corporation, the right to purchase
Warrant Shares under the Warrants shall terminate on the date of such merger and
thereupon the Warrants shall become null and void, but only if the controlling
corporation shall agree to substitute for the Warrants, its Warrants which
entitle the holder thereof to purchase upon their exercise the kind and amount
of shares and other securities and property which it would have owned or been
entitled to receive had the Warrants been exercised immediately prior to such
merger. Any such agreements referred to in this subsection 10.4 shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in Section 10 hereof. The provisions of this
subsection 10.4 shall similarly apply to successive consolidations, mergers,
sales, or conveyances.
10.5 PAR VALUE OF SHARES OF COMMON STOCK. Before taking any action
which would cause an adjustment effectively reducing the portion of the Exercise
Price allocable to each Warrant Share below the par value per share of the
Common Stock issuable upon exercise of the Warrants, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Common Stock upon exercise of the Warrants.
10.6 INDEPENDENT PUBLIC ACCOUNTANTs. The Company may retain a firm of
independent public accountants of recognized national standing (which may be any
such firm regularly employed by the Company) to make any computation required
under this Section 10, and a certificate signed by such firm shall be conclusive
evidence of the correctness of any computation made under this Section 10.
10.7 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any adjustments
in the number of securities issuable upon exercise of the Warrants, Warrant
Certificates theretofore or thereafter issued may continue to express the same
number of securities as are stated in the similar Warrant Certificates initially
issuable pursuant to this Agreement. However, the Company may, at any time in
its sole discretion (which shall be conclusive), make any change in the form of
Warrant Certificate that it may deem appropriate and that does not affect the
substance thereof; and any Warrant Certificate thereafter issued, whether upon
registration of transfer of, or in exchange or substitution for, an outstanding
Warrant Certificate, may be in the form so changed.
10.8 TREASURY STOCK. For purposes of this Section 10, shares of Common
Stock owned or held at any relevant time by, or for the account of, the Company,
in its treasury or otherwise, shall not be deemed to be outstanding for purposes
of the calculations and adjustments described.
10.9 OFFICERS' CERTIFICATE. Whenever the Exercise Price or that
aggregate number of Warrant Shares purchasable pursuant to this Warrant shall be
adjusted as required by the provisions of this Section 10, the Company shall
promptly file with the Warrant Agent an officers' certificate executed by the
Company's President and Secretary or Assistant Secretary, describing the
adjustment and setting forth, in reasonable detail, the facts requiring such
adjustment
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and the basis for and calculation of such adjustment in accordance with the
provisions of this Warrant Agreement. Each such officers' certificate shall
be made available to the Holders for inspection at all reasonable times, and
the Company, after each such adjustment, shall promptly deliver a copy of the
officers' certificate relating to that adjustment to the Holders. If the
officers' certificate is not accompanied by the Certificate described in
Section 10.6, the officers' certificate described in this Section 10.9 shall
be deemed to be conclusive as to the correctness of the adjustment reflected
therein if, and only if, no Holder delivers written notice to the Company of
an objection to the adjustment within 30 days after the officers' certificate
is delivered to the Holders. The Company will make its books and records
available for inspection and copying during normal business hours by the
Holder so as to permit a determination as to the correctness of the
adjustment. If written notice of an objection is delivered by a Holder to
the Company and the parties cannot reconcile the dispute, the Holder and the
Company shall submit the dispute to arbitration pursuant to the provisions of
Section 19 below. Failure to prepare or provide the officers' certificates
shall not modify the parties' rights hereunder.
SECTION 11 MERGER OR CONSOLIDATION OF THE COMPANY
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
corporation, unless the provisions of Section 10.4 are complied with.
SECTION 12 MODIFICATION OF AGREEMENT
The Company may by supplemental agreement make any changes or
corrections in this Agreement it shall deem appropriate to cure any ambiguity
or to correct any defective or inconsistent provision or mistake or error
herein contained. Additionally, the Company may make any changes or
corrections deemed necessary which shall not adversely affect the interests
of the Warrant Holders, including lowering the exercise price or extending
the Exercise Period of the Warrants; provided, however, this Agreement shall
not otherwise be modified, supplemented or altered in any respect except with
the consent in writing of the Warrant Holders who hold not less than a
majority of the Warrants then outstanding and provided further that no such
amendment shall accelerate the Warrant Expiration Date or increase the
Exercise Price without the approval of all the holders of all outstanding
Warrants.
SECTION 13 NOTICES TO WARRANT HOLDERS
If, prior to the expiration of this Warrant either by its terms or by
its exercise in full, any of the following shall occur:
(i) the Company shall declare a dividend on its Common Stock or
authorize any other distribution on its Common Stock; or
(ii) the Company shall authorize the granting to the
stockholders of its Common Stock of rights to subscribe for or purchase any
securities or any other similar rights; or
(iii) any reclassification, reorganization or similar change of
the Common Stock, or any consolidation or merger to which the Company is a
party, or the sale, lease, or exchange of any significant portion of the
assets of the Company; or
(iv) the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) any purchase, retirement or redemption by the Company of
its Common Stock;
then, and in any such case, the Company shall deliver to the Holder or
Holders written notice thereof at least 30 days prior to the earliest
applicable date specified below with respect to which notice is to be given,
which notice shall state the following:
(a) the purpose for which a record of stockholders is to be
taken;
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(b) the number, amount, price, and nature of the shares of
Common Stock or other stock, securities, or assets which will be deliverable
on Warrant Shares following exercise of the Warrants if such exercise occurs
prior to the record date for such action;
(c) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights, or, if a record is not to be taken,
the date as of which the stockholders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined;
(d) the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up
or purchase, retirement or redemption is expected to become effective, and
the date, if any, as of which the Company's stockholders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up,
purchase, retirement or redemption; and
(e) if any matters referred to in the foregoing clauses (x) and
(y) are to be voted upon by stockholders of Common Stock, the date as of
which those stockholders to be entitled to vote are to be determined.
SECTION 14 NO RIGHTS AS SHAREHOLDER
Nothing contained in this Agreement or in the Warrants shall be
construed as conferring upon the Warrant Holder or its transferees any rights
as a stockholder of the Company, including the right to vote, receive
dividends, consent or receive notices as a stockholder in respect to any
meeting of stockholders for the election of directors of the Company or any
other matter. The Company covenants, however, that for so long as this
Warrant is at least partially unexercised, it will furnish any Holder of this
Warrant with copies of all reports and communications furnished to the
stockholders of the Company.
SECTION 15 WARRANT AGENT
15.1. APPOINTMENT. The Company hereby appoints the Warrant Agent to
act as the agent of the Company in accordance with this Agreement and Warrant
Agent hereby accepts such appointment.
15.2 DUTIES. The Warrant Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions by all of
which the Company and every Warrant Holder by acceptance of any Warrant
Certificates, shall be bound:
(i) The statements contained in this Agreement and in the
Warrant Certificates shall be taken as statements of the Company and the
Warrant Agent assumes no responsibility for the correctness of any of the
same except such as described by the Warrant Agent or action taken or to be
taken by it.
(ii) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the Company's covenants contained in
this Agreement or in the Warrant Certificates.
(iii) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Warrant
Holder in respect to any action taken, suffered or omitted by it hereunder in
good faith and in accordance with the opinion or the advice of such counsel,
provided the Warrant Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(iv) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken
in reliance on any notice, resolution, waiver, consent, order, certificate,
or other paper,
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document or instrument believed by it to be genuine and to have been signed,
sent or presented by the property party or parties.
(v) The Company agrees to pay to the Warrant Agent the Warrant
Agent's standard published rates in effect on the date of this Agreement, as
the same may be changed from time to time upon thirty (30) days prior written
notice from the Warrant Agent to the Company, for all services rendered by
the Warrant Agent in the execution of this Agreement; to reimburse the
Warrant Agent for all expenses, taxes and governmental charges and other
charges of any kind and nature incurred by the Warrant Agent in the execution
of this Agreement; and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and counsel fees,
for anything done or omitted by the Warrant Agent in the execution of this
Agreement except as a result of the Warrant Agent's negligence or bad faith.
(vi) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more Warrant Holders shall
furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as the Warrant Agent may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceedings instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any recovery
or judgment shall be for the ratable benefit of the Warrant Holders as their
respective rights or interests may appear.
(vii) The Warrant Agent and any stockholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
(viii) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions
hereof and those provisions of the Act, the Securities Exchange Act of 1934,
as amended, and those Rules and Regulations of the Commission applicable to
the duties of the Warrant Agent hereunder.
SECTION 16 MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT
16.1. SUCCESSOR. Any corporation into which the Warrant Agent may be
merged or converted or with which it 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 succeeding to the corporate trust
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the part of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Warrant Agent under the provisions of
Section 17 of this Agreement. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in
case at that time any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent; and in case at the
time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Agreement.
16.2. CHANGE OF NAME. In case at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrant Certificates shall
have been countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name; and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed
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name; and in all such cases such Warrant Certificates shall have the full
force provided in the Warrant Certificates and in this Agreement.
SECTION 17 CHANGE OF WARRANT AGENT
The Warrant Agent may resign and be discharged from its duties under
this Agreement by giving to the Company notice in writing, and by giving
notice in writing to each Warrant Holder at his address appearing in the
Warrant register, specifying a date when such resignation shall take effect,
which notice shall be sent at least 90 days prior to the date so specified.
If the Warrant Agent shall resign or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 90 days after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by any Warrant Holder, then any
Warrant Holder may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such court, the
duties of the Warrant Agent shall be carried out by the Company. Any
successor Warrant Agent, whether appointed by the Company or by such court,
shall be a transfer agent, bank or trust company, in good standing, organized
under the laws of one of the states of the United States of America or under
the laws of the United States of America. After appointment, the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed and the former Warrant Agent shall deliver and transfer
to the successor Warrant Agent any property at the time held by it hereunder,
and execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
SECTION 18 NOTICES
18.1 THE COMPANY. All notices, demands, claims, elections, opinions,
requests or other communications hereunder (however characterized or
described) shall be in writing and shall be deemed duly given or made if (and
then two business days after) sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to, in the case of the
Company as follows:
FirstLink Communications, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
18.2 THE WARRANT AGENT. All notices, demands, claims, elections,
opinions, requests or other communications hereunder (however characterized
or described) shall be in writing and shall be deemed duly given or made if
(and then two business days after) sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to, in the case of
the Warrant Agent as follows:
American Securities Transfer & Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
18.3 THE WARRANT HOLDERS. Any distribution, notice or demand required
or authorized by this Agreement to be given or made by the Company or the
Warrant Agent to or on the Warrant Holders shall be sufficiently given or
made if sent by mail, first class, certified or registered, postage prepaid,
addressed to the Warrant Holders at their last known addresses as they shall
appear on the registration books for the Warrant Certificates maintained by
the Warrant Agent.
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18.4 EFFECTIVENESS OF NOTICE. The Company may send any notice,
demand, claim, election, opinion, request or communication hereunder to the
intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail or electronic mail), but no such notice, demand, claim,
election, opinion, request or other communication shall be deemed to have
been duly given or made unless and until it actually is received by the
intended recipient. The Company may change the address to which notices,
demands, claims, elections, opinions, requests and other communications
hereunder are to be delivered by giving the Warrant Holders notice in the
manner herein set forth.
SECTION 19 ARBITRATION
The Company and the Holder, and by receipt of a Warrant Certificate or
any Warrant Shares, all subsequent Holders or holders of Warrant Shares,
agree to submit all controversies, claims, disputes and matters of difference
with respect to this Agreement and the Warrant Certificates, including,
without limitation, the application of this Section 19, to arbitration in
Portland, Oregon, according to the rules and practices of the American
Arbitration Association from time to time in force; provided, however, that
if such rules and practices conflict with the applicable procedures of Oregon
courts of general jurisdiction or any other provisions of Oregon law then in
force, those Oregon rules and provisions shall govern. This agreement to
arbitrate shall be specifically enforceable. Arbitration may proceed in the
absence of any party if notice of the proceeding has been given to that
party. The parties agree to abide by all awards rendered in any such
proceeding. These awards shall be final and binding on all parties to the
extent and in the manner provided by the rules of civil procedure enacted in
Colorado. All awards may be filed, as a basis of judgment and of the
issuance of execution for its collection, with the clerk of one or more
courts, state or federal, having jurisdiction over either the party against
whom that award is rendered or its property. No party shall be considered in
default hereunder during the pendency of arbitration proceedings relating to
that default.
SECTION 20 MISCELLANEOUS PROVISIONS
20.1 PERSONS BENEFITING. This Agreement shall be binding upon and
inure to the benefit of the Company, the Warrant Agent and their respective
successors and assigns and the Warrant Holders. By his acceptance of a
Warrant Certificate, the Holder accepts and agrees to comply with all of the
terms and provisions hereof. Nothing in this Agreement is intended or shall
be construed to confer on any other person any right, remedy or claim or to
impose on any other person any duty, liability or obligation.
20.2 SEVERABILITY. If any term contained herein shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, government authority
or otherwise, such holding, declaration or pronouncement shall not affect
adversely any other term, which shall otherwise remain in full force and
effect, and the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
20.3 TERMINATION. This Agreement shall terminate as of the close of
business on the Expiration Date, or such earlier date upon which all Warrants
shall have been exercised or redeemed; except that the exercise of a Warrant
in full or the Expiration Date shall not terminate the provisions of this
Agreement as it relates to holders of Warrant Securities.
20.4 GOVERNING LAW. These terms and each Warrant Certificate issued
hereunder shall be deemed to be a contract under the laws of the State of
Oregon and for all purposes shall be construed in accordance with the laws of
said state without giving effect to conflicts of laws provisions of such
state.
20.5 AGREEMENT AVAILABLE TO WARRANT HOLDERS. A copy of these terms
shall be available at all reasonable times at the office of the Warrant Agent
for inspection by any Warrant Holder. As a condition of such inspection, the
Company may require any Warrant Holder to submit a Warrant Certificate held
of record for inspection.
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20.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to
be an original and all such counterparts shall together constitute but one
and the same instrument.
20.7 FAILURE TO PERFORM. If the Company fails to perform any of its
obligations hereunder, it shall be liable to the Warrant Holder for all
damages, costs and expenses resulting from the failure, including, but not
limited to, all reasonable attorney's fees and disbursements.
20.8 PARAGRAPH HEADINGS. Paragraph headings used in this Warrant
are for convenience only and shall not be taken or construed to define or
limit any of the terms or provisions of this Warrant. Unless otherwise
provided, or unless the context shall otherwise require, the use of the
singular shall include the plural and the use of any gender shall include all
genders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first written above.
FIRSTLINK COMMUNICATIONS, INC.
By: _________________________________________
Name:_________________________________________
Title: ____________________________________
Attest:
______________________________
Secretary
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By: _________________________________________
Name: ______________________________________
Title: ____________________________________
Attest:
____________________________________
Secretary
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