Horizon PCS, Inc.
Warrants to Purchase
3,805,500 Shares of Class A Common Stock
WARRANT AGREEMENT
Dated as of September 26, 2000
▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as
Warrant Agent
TABLE OF CONTENTS
Page
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SECTION 1. CERTAIN DEFINITIONS 1
SECTION 2. APPOINTMENT OF WARRANT AGENT 6
SECTION 3. ISSUANCE OF WARRANTS; WARRANT CERTIFICATES 6
3.1 Form and Dating 6
3.2 Execution 7
3.3 Warrant Registrar 8
3.4 Holder Lists 8
3.5 Transfer and Exchange 8
3.6 Replacement Warrants 22
3.7 Temporary Warrants 22
3.8 Cancellation 23
SECTION 4. SEPARATION OF WARRANTS; TERMS OF WARRANTS;
EXERCISE OF WARRANTS 23
SECTION 5. PAYMENT OF TAXES 29
SECTION 6. RESERVATION OF WARRANT SHARES 30
SECTION 7. OBTAINING STOCK EXCHANGE LISTINGS 30
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER
OF WARRANT SHARES ISSUABLE 31
SECTION 9. FRACTIONAL INTERESTS 41
SECTION 10. NOTICES TO WARRANT HOLDERS 41
SECTION 11. MERGER, CONSOLIDATION OR CHANGE OF NAME
OF WARRANT AGENT 43
SECTION 12. WARRANT AGENT 43
SECTION 13. CHANGE OF WARRANT AGENT 45
SECTION 14. REPORTS 46
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SECTION 15. NOTICES TO COMPANY AND WARRANT AGENT 46
SECTION 16. SUPPLEMENTS AND AMENDMENTS 47
SECTION 17. SUCCESSORS 47
SECTION 18. TERMINATION 48
SECTION 19. GOVERNING LAW 48
SECTION 20. BENEFITS OF THIS AGREEMENT 48
SECTION 21. COUNTERPARTS 48
ii
WARRANT AGREEMENT, dated as of September 26, 2000, by and among Horizon
PCS, Inc., a Delaware corporation ("HORIZON" or the "COMPANY"), and ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, a national association, as warrant agent
(the "WARRANT AGENT").
WHEREAS, the Company proposes to issue warrants (the "WARRANTS") to
initially purchase up to an aggregate of 3,805,500 shares of Class A Common
Stock, par value $.0001 per share (the "COMMON STOCK"), of the Company (the
Common Stock issuable on exercise of the Warrants being referred to herein as
the "WARRANT SHARES").
WHEREAS, the Warrants are being issued in connection with the offering (the
"OFFERING") by Horizon, of 295,000 Units (the "UNITS"), each consisting of
$1,000 principal amount at maturity of Horizon's 14% Senior Discount Notes due
2010 (the "NOTES") and one Warrant, each Warrant initially representing the
right to purchase 12.90 Warrant Shares at an exercise price of $5.88 per Warrant
Share.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act in connection with the
issuance of Warrant Certificates (as defined) and other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"144A GLOBAL WARRANT" means a global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee.
"ACCRETED VALUE" of any outstanding Note as of or to any date of
determination means an amount equal to the sum of (1) the issue price of such
Note as determined in accordance with Section 1273 of the Internal Revenue Code
plus (2) the aggregate of the portions of the original issue discount, i.e., the
excess of the amounts considered as part of the "stated redemption price at
maturity" of such Note within the meaning of Section 1273(a)(2) of the Internal
Revenue Code or any successor provisions, whether denominated as principal or
interest, over the issue price of such Note, that shall theretofore have accrued
pursuant to Section 1272 of the Internal Revenue Code, without regard to Section
1272(a)(7) of the Internal Revenue Code, from the date of issue of such Note (a)
for each six-month or shorter period ending April 1 or October 1 prior to the
date of determination and (b) for the shorter period, if any, from the end of
the immediately preceding six-month or shorter period, as the case may be, to
the date of determination plus (3) accrued and unpaid interest to the date such
Accreted Value is paid (without duplication of any amount set forth in (2)
above), minus all amounts theretofore paid in respect of such Note, which
amounts are considered as part of the "stated redemption price at maturity" of
such Note within the meaning of Section 1273(a)(2) of the Internal Revenue Code
or any successor provisions whether such amounts paid were denominated principal
or interest.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such specified Person, whether through the ownership
of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the voting securities of a Person shall be deemed to
be control.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Warrant, the rules and procedures of
the Depositary, Euroclear and Cedel Bank that apply to such transfer or
exchange.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CEDEL BANK" means Cedel Bank, SA.
"CLOSING DATE" means the date hereof.
"COMMISSION" means the Securities and Exchange Commission.
"DEPOSITARY" means, with respect to the Warrants issuable or issued in
whole or in part in global form, the Person specified in Section 3.3 hereof as
the Depositary with respect to the Warrants, and any and all successors thereto
appointed as Depositary hereunder and having become such pursuant to the
applicable provision of the Indenture.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, and all successors thereto, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE DATE" means October 1, 2001.
"EXERCISE PRICE" means the purchase price per share of Common Stock to be
paid upon the exercise of each Warrant in accordance with the terms hereof,
which price shall initially be $5.88 per share, subject to adjustment from time
to time pursuant to Section 8 hereof.
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"GLOBAL WARRANTS" means, individually and collectively, each of the Global
Warrants substantially in the form of Exhibit A hereto issued in accordance with
Section 3.1(b) and 3.5 hereof.
"GLOBAL WARRANT LEGEND" means the legend set forth in Section 3.5(g)(ii),
which is required to be placed on all Global Warrants issued under this Warrant
Agreement.
"HOLDER" means a Person who is listed as the record owner of Warrants,
Warrant Shares and any other securities issued or issuable with respect to the
Warrants or the Warrant Shares by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
"INDENTURE" means the indenture, dated the date hereof, by and among the
Company, the Guarantors (as set forth in the Indenture) and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as trustee relating to the Notes.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Warrant through a Participant.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and First Union Securities, Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, which is not also a QIB.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment shall be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"NON-U.S. PERSON" means a person who is not a U.S. Person.
"OFFERING" means the offering by the Company of the Units.
"OFFICER" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"ONE-YEAR RESTRICTED PERIOD" means the one-year "distribution compliance
period" as defined in Rule 902(f) of Regulation S.
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"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Warrant Agent in form and substance reasonably acceptable to
the Warrant Agent. The counsel may be an employee of or counsel to the Company,
any subsidiary of the Company or the Warrant Agent.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof,
including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business.
"PROSPECTUS" means the prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments and all material incorporated by reference
into such Prospectus.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 3.5(g)(i)
to be placed on all Warrants issued under this Warrant Agreement except where
otherwise permitted by the provisions of this Warrant Agreement.
"PURCHASE AGREEMENT" means that certain purchase agreement, dated as of
September 19, 2000, by and among the Company, the Guarantors (as set forth in
the Purchase Agreement) and the Initial Purchasers pursuant to which the Company
agrees to sell units, of which the Warrants form a part, to the Initial
Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRABLE SECURITIES" shall mean the Warrants, the Warrant Shares and
any other securities issued or issuable with respect to the Warrants or the
Warrant Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that a security ceases to be a Registrable Security
when it is no longer a Transfer Restricted Security.
"REGISTRATION STATEMENT" means "registration statement," as such term is
defined in Section 2(a)(8) of the Securities Act.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL WARRANT" means a global Warrant in the form of Exhibit
A hereto bearing the Global Warrant Legend, the Private Placement Legend and the
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Regulation S Legend and deposited with or on behalf of and registered in the
name of the Depositary or its nominee.
"REGULATION S LEGEND" means the legend set forth in Section 3.5(g)(iv) to
be placed on all Registrable Securities issued pursuant to Regulation S.
"RESTRICTED DEFINITIVE WARRANT" means a Definitive Warrant bearing the
Private Placement Legend.
"RESTRICTED GLOBAL WARRANT" means a Global Warrant bearing the Private
Placement Legend.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SEPARATION DATE" means the earliest of (i) 180 days after the closing of
the Offering, (ii) the date on which a registration statement with respect to a
registered exchange offer for the Notes is declared effective under the
Securities Act, (iii) the date a shelf registration statement with respect to
the Notes is declared effective under the Securities Act, (iv) the occurrence of
a Change of Control or an Event of Default (each as defined in the Indenture)
and (v) such date as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation in its
sole discretion shall determine (such date being at least three Business Days
after giving written notice to the DTC).
"SHELF REGISTRATION" means a shelf Registration Statement filed pursuant to
Rule 415 under the Securities Act relating to the Transfer Restricted
Securities.
"TRUSTEE" means the trustee under the Indenture.
"TRANSFER RESTRICTED SECURITIES" shall mean (a) each Warrant and Warrant
Share held by an Affiliate of the Issuer and (b) each other Warrant and Warrant
Share until the earlier to occur of (i) the date on which such Warrant or
Warrant Share (other than any Warrant Share issued upon exercise of a Warrant in
accordance with a Registration Statement) has been disposed of in accordance
with a Registration Statement and (ii) the date on which such Warrant or Warrant
Share (or the related Warrant) is distributed to the public pursuant to Rule 144
under the Act.
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"TRUSTEE" means the trustee under the Indenture. "UNRESTRICTED GLOBAL
WARRANT" means a global Warrant substantially in the form of Exhibit A attached
hereto that bears the Global Warrant Legend and that has the "Schedule of
Exchanges of Interests in the Global Warrant" attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Warrants that do not bear the Private Placement Legend.
"UNRESTRICTED DEFINITIVE WARRANT" means one or more Definitive Warrants
that do not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
SECTION 2. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth hereinafter in this
Agreement and the Warrant Agent hereby accepts such appointment.
SECTION 3. ISSUANCE OF WARRANTS; WARRANT CERTIFICATES.
3.1 FORM AND DATING.
(a) General.
The Warrants shall be substantially in the form of Exhibit A hereto (the
"WARRANT CERTIFICATES"). The Warrants may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Warrant shall
be dated the date of the countersignature.
The terms and provisions contained in the Warrants shall constitute, and
are hereby expressly made, a part of this Warrant Agreement. The Company and the
Warrant Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Warrant conflicts with the express provisions
of this Warrant Agreement, the provisions of this Warrant Agreement shall govern
and be controlling.
(b) Global Warrants.
Warrants issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Warrant Legend thereon and the
"Schedule of Exchanges of Interests in the Global Warrant" attached thereto).
Warrants issued in definitive form shall be substantially in the form of Exhibit
A attached hereto (but without the Global Warrant Legend thereon and without the
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"Schedule of Exchanges of Interests in the Global Warrant" attached thereto).
Each Global Warrant shall represent such of the outstanding Warrants as shall be
specified therein and each shall provide that it shall represent the number of
outstanding Warrants from time to time endorsed thereon and that the number of
outstanding Warrants represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Warrant to reflect the amount of any increase or decrease in the
number of outstanding Warrants represented thereby shall be made by the Warrant
Agent in accordance with written instructions given by the Holder thereof as
required by Section 3.5 hereof.
(c) Euroclear and Cedel Procedures Applicable, if Necessary.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests, if any, in the Global Warrant
that are held by Participants through Euroclear or Cedel Bank.
3.2 EXECUTION.
An Officer shall sign the Warrants for the Company by manual or facsimile
signature.
If the Officer whose signature is on a Warrant no longer holds that office
at the time a Warrant is countersigned, the Warrant shall nevertheless be valid.
A Warrant shall not be valid until countersigned by the manual signature of
the Warrant Agent. The signature shall be conclusive evidence that the Warrant
has been properly issued under this Warrant Agreement.
The Warrant Agent shall, upon a written order of the Company signed by an
Officer (a "WARRANT COUNTERSIGNATURE Order"), countersign Warrants for original
issue up to the number stated in the preamble hereto.
The Warrant Agent may appoint an agent acceptable to the Company to
countersign Warrants. Such an agent may countersign Warrants whenever the
Warrant Agent may do so. Each reference in this Warrant Agreement to a
countersignature by the Warrant Agent includes a countersignature by such agent.
Such an agent has the same rights as the Warrant Agent to deal with the Company
or an Affiliate of the Company.
3.3 WARRANT REGISTRAR.
The Company shall maintain an office or agency where Warrants may be
presented for registration of transfer or for exchange ("WARRANT REGISTRAR").
The Warrant Registrar shall keep a register of the Warrants and of their
transfer and exchange. The Company may appoint one or more co-Warrant
Registrars. The term "Warrant Registrar" includes any co-Warrant Registrar. The
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Company may change any Warrant Registrar without notice to any Holder. The
Company shall notify the Warrant Agent in writing of the name and address of any
agent not a party to this Warrant Agreement. If the Company fails to appoint or
maintain another entity as Warrant Registrar, the Warrant Agent shall act as
such. The Company or any of its subsidiaries may act as Warrant Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Warrants.
The Company initially appoints the Warrant Agent to act as the Warrant
Registrar with respect to the Global Warrants.
3.4 HOLDER LISTS.
The Warrant Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders. If the Warrant Agent is not the Warrant Registrar, the Company
shall promptly furnish to the Warrant Agent at such times as the Warrant Agent
may request in writing, a list in such form and as of such date as the Warrant
Agent may reasonably require of the names and addresses of the Holders.
3.5 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Warrants.
A Global Warrant may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the Depositary
or to another nominee of the Depositary, or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Warrants will be exchanged by the Company for Definitive Warrants if (i)
the Company delivers to the Warrant Agent written notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary,(ii) the Company in its sole discretion
determines that the Global Warrants (in whole but not in part) should be
exchanged for Definitive Warrants which the Company will provide to the Warrant
Agent and delivers a written notice to such effect to the Warrant Agent or (iii)
an event of default under the Indenture of which an officer of the Warrant Agent
has actual notice has occurred and is continuing and the Warrant Registrar has
received a request from DTC to issue Definitive Warrants. Upon the occurrence of
either of the preceding events in (i), (ii) or (iii) above, Definitive Warrants
shall be issued in such names as the Depositary shall instruct the Warrant Agent
in writing. Global Warrants also may be exchanged or replaced, in whole or in
part, as provided in Sections 3.6 and 3.7 hereof. A Global Warrant may not be
exchanged for another Warrant other than as provided in this Section 3.5(a),
however, beneficial interests in a Global Warrant may be transferred and
exchanged as provided in Section 3.5(b) or (c) hereof.
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(b) Transfer and Exchange of Beneficial Interests in the Global
Warrants.
The transfer and exchange of beneficial interests in the Global Warrants
shall be effected through the Depositary, in accordance with the provisions of
this Warrant Agreement and the Applicable Procedures. Beneficial interests in
the Restricted Global Warrants shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Warrants also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Warrant.
Beneficial interests in any Restricted Global Warrant may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Warrant in
accordance with the transfer restrictions set forth in the Private
Placement Legend. Beneficial interests in any Unrestricted Global
Warrant may be delivered to persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Warrant. No
written orders or instructions shall be required to be delivered to
the Warrant Registrar to effect the transfers described in this
Section 3.5(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Warrants. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 3.5(b)(i) above,
the transferor of such beneficial interest must deliver to the Warrant
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Warrant in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Warrant in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Warrant Registrar
containing information regarding the Person in whose name such
Definitive Warrant shall be registered. Upon effectiveness of the
Registration Statement by the Company in accordance with Section
3.5(f) hereof, the requirements of this Section 3.5(b)(ii) shall be
deemed to have been satisfied upon receipt by the Warrant Registrar of
a certification required by the Company in connection with such
Registration Statement delivered by the Holder of such beneficial
interests in the Restricted Global Warrants. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests
in Global Warrants contained in this Agreement and the Warrants or
otherwise applicable under the Securities Act, the Warrant Agent shall
adjust the principal amount of the relevant Global Warrant(s) pursuant
to Section 3.5(h) hereof.
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(iii) Transfer of Beneficial Interests to Another Restricted
Global Warrant. A beneficial interest in any Restricted Global Warrant
may be transferred to a Person who takes delivery thereof in the form
of a beneficial interest in another Restricted Global Warrant if the
transfer complies with the requirements of Section 3.5(b)(ii) above
and the Warrant Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Warrant, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Warrant for Beneficial Interests in the Unrestricted
Global Warrant. A beneficial interest in any Restricted Global Warrant
may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Warrant or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Warrant if the exchange or transfer complies with
the requirements of Section 3.5(b)(ii) above and:
(A) such transfer is effected pursuant to a Registration
Statement in accordance with this Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Warrant, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Warrant, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
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If any such transfer is effected pursuant to subparagraph (B) above at a
time when an Unrestricted Global Warrant has not yet been issued, the Company
shall issue and, upon receipt of an Warrant Countersignature Order in accordance
with Section 3.2 hereof, the Warrant Agent shall countersign one or more
Unrestricted Global Warrants in the number equal to the number of beneficial
interests transferred pursuant to subparagraph (B) above.
(c) Transfer and Exchange of Beneficial Interests for Definitive
Warrants.
(i) Beneficial Interests in Restricted Global Warrants to
Restricted Definitive Warrants. If any holder of a beneficial interest
in a Restricted Global Warrant proposes to exchange such beneficial
interest for a Restricted Definitive Warrant or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Restricted Definitive Warrant, then, upon receipt by the Warrant
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such beneficial
interest for a Restricted Definitive Warrant, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
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(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Warrant Agent shall cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Warrant Agent, the
number of Warrants represented by the Global Warrant to be reduced by the
number of Warrants to be represented by the Definitive Warrant pursuant to
Section 3.5(h) hereof, and the Company shall execute and the Warrant Agent
pursuant to Section 3.2 hereof shall countersign and deliver to the Person
designated in the instructions a Definitive Warrant in the appropriate
amount. Any Definitive Warrant issued in exchange for a beneficial interest
in a Restricted Global Warrant pursuant to this Section 3.5(c) shall be
registered in such name or names as the holder of such beneficial interest
shall instruct the Warrant Registrar through written instructions from the
Depositary and the Participant or Indirect Participant. The Warrant Agent
shall deliver such Definitive Warrants to the Persons in whose names such
Warrants are so registered. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.5(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Warrants to
Unrestricted Definitive Warrants. A Holder of a beneficial interest in
a Restricted Global Warrant may exchange such beneficial interest for
an Unrestricted Definitive Warrant or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Warrant only if:
(A) such transfer is effected pursuant to the Registration
Statement in accordance with the Warrant Registration Rights
Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such
beneficial interest for a Definitive Warrant that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Warrant that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
12
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Warrant Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Warrants to
Unrestricted Definitive Warrants. If any Holder of a beneficial
interest in an Unrestricted Global Warrant proposes to exchange such
beneficial interest for a Definitive Warrant or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Warrant, then, upon satisfaction of the conditions set
forth in Section 3.5(b)(ii) hereof, the Warrant Agent shall cause the
amount of the applicable Global Warrant to be reduced accordingly
pursuant to Section 3.5(h) hereof, and the Company shall execute and
the Warrant Agent shall countersign and deliver to the Person
designated in the instructions a Definitive Warrant in the appropriate
principal amount. Any Definitive Warrant issued in exchange for a
beneficial interest pursuant to this Section 3.5(c)(iii) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Warrant Registrar through written instructions from the
Depositary and the Participant or Indirect Participant. The Warrant
Agent shall deliver such Definitive Warrants to the Persons in whose
names such Warrants are so registered. Any Definitive Warrant issued
in exchange for a beneficial interest pursuant to this Section
3.5(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Warrants for Beneficial
Interests.
(i) Restricted Definitive Warrants to Beneficial Interests in
Restricted Global Warrants. If any Holder of a Restricted Definitive
Warrant proposes to exchange such Warrant for a beneficial interest in
a Restricted Global Warrant or to transfer such Restricted Definitive
Warrants to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Warrant, then, upon receipt
by the Warrant Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Warrant
proposes to exchange such Warrant for a beneficial interest in a
Restricted Global Warrant, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
13
(B) if such Restricted Definitive Warrant is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Warrant is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Warrant is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Warrant is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Warrant is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Warrant is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Warrant Agent shall cancel the Restricted Definitive Warrant,
increase or cause to be increased the amount of the appropriate
Restricted Global Warrant.
(ii) Restricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A Holder of a Restricted Definitive
Warrant may exchange such Warrant for a beneficial interest in an
Unrestricted Global Warrant or transfer such Restricted Definitive
Warrant to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Warrant only if:
(A) such transfer is effected pursuant to the Registration
Statement in accordance with this Agreement; or
(B) the Warrant Registrar receives the following:
14
(1) if the Holder of such Definitive Warrants proposes
to exchange such Warrants for a beneficial interest in the
Unrestricted Global Warrant, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Warrants proposes
to transfer such Warrants to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Warrant, a certificate from such Holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Warrant Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Warrant Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 3.5(d)(ii), the Warrant Agent shall cancel the Definitive Warrants
and increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Warrant.
(iii) Unrestricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A Holder of an Unrestricted Definitive
Warrant may exchange such Warrant for a beneficial interest in an
Unrestricted Global Warrant or transfer such Definitive Warrants to a
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Warrant at any time. Upon receipt of a
written request for such an exchange or transfer from the Holder, the
Warrant Agent shall cancel the applicable Unrestricted Definitive
Warrant and increase or cause to be increased the amount of one of the
Unrestricted Global Warrants.
If any such exchange or transfer from a Definitive Warrant to a
beneficial interest is effected pursuant to subparagraphs (ii)(B) or
(iii) above at a time when an Unrestricted Global Warrant has not yet
been issued, the Company shall issue and, upon receipt of an Warrant
Countersignature Order in accordance with Section 3.2 hereof, the
Warrant Agent shall countersign one or more Unrestricted Global
Warrants in the number equal to the number of beneficial interests of
Definitive Warrants so transferred.
(e) Transfer and Exchange of Definitive Warrants for Definitive
Warrants.
Upon written request by a Holder of Definitive Warrants and such Holder's
compliance with the provisions of this Section 3.5(e), the Warrant ▇▇▇▇▇▇▇▇▇
▇▇
shall register the transfer or exchange of Definitive Warrants. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Warrant Registrar the Definitive Warrants duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Warrant Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 3.5(e).
(i) Restricted Definitive Warrants to Restricted Definitive
Warrants. Any Restricted Definitive Warrant may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Warrant if the Warrant Registrar
receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; or
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Warrants to Unrestricted Definitive
Warrants. Any Restricted Definitive Warrant may be exchanged by the
Holder thereof for an Unrestricted Definitive Warrant or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Warrant if:
(A) any such transfer is effected pursuant to the
Registration Statement in accordance with the Warrant
Registration Rights Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Warrants proposes to exchange such Warrants for an
Unrestricted Definitive Warrant, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Warrants proposes to transfer such Warrants to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Warrant, a certificate from such Holder in the
16
form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Warrants to Unrestricted Definitive
Warrants. A Holder of Unrestricted Definitive Warrants may transfer
such Warrants to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Warrant. Upon receipt of a written request to
register such a transfer, the Warrant Registrar shall register the
Unrestricted Definitive Warrants pursuant to the instructions from the
Holder thereof.
(f) Registration Statement.
Upon the effectiveness of a Registration Statement and sales of
Warrants in connection therewith, the Company shall issue and, upon receipt
of a Warrant Countersignature Order in accordance with Section 3.2, the
Warrant Agent shall countersign (i) one or more Unrestricted Global
Warrants in an amount equal to the amount of the beneficial interests in
the Restricted Global Warrants sold under such Registration Statement and
(ii) Definitive Warrants in an amount equal to the amount of the beneficial
interests of the Restricted Definitive Warrants sold under such
Registration Statement. Concurrently with the issuance of such Warrants,
the Warrant Agent shall cause the amount of the applicable Restricted
Global Warrants to be reduced accordingly, and the Company shall execute
and the Warrant Agent shall countersign and deliver to the Persons
designated by the Holders of Definitive Warrants so accepted Definitive
Warrants in the appropriate amount.
(g) Legends.
The following legends shall appear on the face of all Global Warrants
and Definitive Warrants issued under this Warrant Agreement unless
specifically stated otherwise in the applicable provisions of this Warrant
Agreement.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Warrant and each Definitive Warrant (and all Warrants
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS SECURITY (OR ITS PREDECESSOR) AND THE WARRANT SHARES
TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE
17
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1),(2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE WARRANT AGENT A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN
BE OBTAINED FROM THE WARRANT AGENT) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITY LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION,
(3) AGREES NOT TO ENGAGE IN HEDGING TRANSACTIONS UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
18
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION
S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A
PROVISION REQUIRING THE WARRANT AGENT TO REFUSE TO REGISTER ANY
TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Warrant
or Definitive Warrant issued pursuant to subparagraphs
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 3.5 (and all Warrants issued
in exchange therefor or substitution thereof) shall not bear
the Private Placement Legend.
(ii) Global Warrant Legend. Each Global Warrant shall bear a
legend in substantially the following form:
"THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE WARRANT AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE WARRANT AGENT MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 3.5 OF THE WARRANT AGREEMENT,
(II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT, (III)
THIS GLOBAL WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR
CANCELLATION PURSUANT TO SECTION 3.8 OF THE WARRANT AGREEMENT AND
(IV) THIS GLOBAL WARRANT MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Unit Legend. Each Warrant issued prior to the Separation
Date shall bear a legend in substantially the following form:
"THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY
ISSUED AS PART OF AN ISSUANCE OF 295,000 UNITS (THE "UNITS"),
EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF
THE 14% SENIOR DISCOUNT NOTES DUE 2010 OF HORIZON PCS, INC. (THE
"NOTES") AND ONE WARRANT (THE "WARRANTS") INITIALLY ENTITLING THE
HOLDER THEREOF TO PURCHASE 12.90 SHARES OF CLASS A COMMON STOCK,
PAR VALUE $.0001 PER SHARE, OF HORIZON PCS, INC.
"PRIOR TO THE EARLIEST OF (I) 180 DAYS AFTER THE CLOSING OF
THE OFFERING OF THE UNITS, (II) THE DATE ON WHICH A REGISTRATION
STATEMENT WITH RESPECT TO A REGISTERED EXCHANGE OFFER FOR THE
NOTES IS DECLARED EFFECTIVE UNDER THE ACT, (III) THE DATE A SHELF
REGISTRATION STATEMENT
19
WITH RESPECT TO THE NOTES IS DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (IV) THE OCCURRENCE OF A CHANGE OF CONTROL OR AN
EVENT OF DEFAULT (EACH AS DEFINED IN THE INDENTURE GOVERNING THE
NOTES) AND (V) SUCH DATE AS ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION (OR ITS SUCCESSOR OR ASSIGN) IN ITS SOLE
DISCRETION SHALL DETERMINE, THE WARRANTS EVIDENCED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM,
BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE
NOTES."
(iv) Regulation S. Legend. Each Warrant that is a Registrable
Security and issued pursuant to Regulation S shall bear the following
legend on the face thereof:
"THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND
THE WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S.
PERSON UNLESS REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. IN ORDER TO EXERCISE THIS WARRANT, THE
HOLDER MUST FURNISH TO THE COMPANY AND THE WARRANT AGENT EITHER
(A) A WRITTEN CERTIFICATION THAT IT IS NOT A U.S. PERSON AND THE
WARRANT IS NOT BEING EXERCISED ON BEHALF OF A U.S. PERSON OR (B)
A WRITTEN OPINION OF COUNSEL TO THE EFFECT THAT THE SECURITIES
DELIVERED UPON EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
TERMS IN THIS LEGEND HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT."
(h) Cancellation and/or Adjustment of Global Warrants.
At such time as all beneficial interests in a particular Global
Warrant have been exercised or exchanged for Definitive Warrants or a
particular Global Warrant has been exercised, redeemed, repurchased or
canceled in whole and not in part, each such Global Warrant shall be
returned to or retained and canceled by the Warrant Agent in accordance
with Section 3.8 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Warrant is exercised or exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Warrant or for Definitive Warrants,
the amount of Warrants represented by such Global Warrant shall be reduced
20
accordingly and an endorsement shall be made on such Global Warrant by the
Warrant Agent or by the Depositary at the written direction of the
Depositary to reflect such reduction; and if the beneficial interest is
being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Warrant,
such other Global Warrant shall be increased accordingly and an endorsement
shall be made on such Global Warrant by the Warrant Agent or by the
Depositary at the written direction of the Depositary to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Warrant Agent shall countersign Global
Warrants and Definitive Warrants upon the Company's order or at the
Warrant Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Warrant or to a holder of a Definitive Warrant
for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.
(iii) All Global Warrants and Definitive Warrants issued upon any
registration of transfer or exchange of Global Warrants or Definitive
Warrants shall be the duly authorized, executed and issued warrants
for Common Stock of the Company, not subject to any preemptive rights,
and entitled to the same benefits under this Warrant Agreement, as the
Global Warrants or Definitive Warrants surrendered upon such
registration of transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer
of any Warrant, the Warrant Agent and the Company may deem and treat
the Person in whose name any Warrant is registered as the absolute
owner of such Warrant for all purposes and neither the Warrant Agent
nor the Company shall be affected by notice to the contrary.
(v) The Warrant Agent shall countersign Global Warrants and
Definitive Warrants in accordance with the provisions of Section 3.2
hereof.
(j) Facsimile Submissions to Warrant Agent.
All certifications, certificates and Opinions of Counsel required
to be submitted to the Warrant Registrar pursuant to this Section 3.5
to effect a registration of transfer or exchange may be submitted by
facsimile with the original to follow immediately thereafter.
The Warrant Registrar shall not be responsible for confirming the
truth or accuracy of representations made in any such certifications
or certificates. As to any Opinions of Counsel delivered pursuant to
this Section 3.5, the Warrant Registrar may rely upon, and be fully
protected in relying upon, such opinions.
21
3.6 REPLACEMENT WARRANTS.
If any mutilated Warrant is surrendered to the Warrant Agent or the Company
and the Warrant Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Warrant, the Company shall issue and the Warrant Agent,
upon receipt of a Warrant Countersignature Order, shall countersign a
replacement Warrant if the Warrant Agent's requirements are met. If required by
the Warrant Agent or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Warrant Agent and the Company
to protect the Company, the Warrant Agent, any Agent and any agent for purposes
of the countersignature from any loss that any of them may suffer if a Warrant
is replaced. The Company may charge for its expenses in replacing a Warrant.
Every replacement Warrant is an additional warrant of the Company and shall
be entitled to all of the benefits of this Warrant Agreement equally and
proportionately with all other Warrants duly issued hereunder.
3.7 TEMPORARY WARRANTS.
Until certificates representing Warrants are ready for delivery, the
Company may prepare and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall issue temporary Warrants. Temporary Warrants shall
be substantially in the form of certificated Warrants but may have variations
that the Company considers appropriate for temporary Warrants and as shall be
reasonably acceptable to the Warrant Agent. Without unreasonable delay, the
Company shall prepare and the Warrant Agent shall countersign definitive
Warrants in exchange for temporary Warrants.
Holders of temporary Warrants shall be entitled to all of the benefits of
this Warrant Agreement.
3.8 CANCELLATION.
Subject to Section 3.5(h) hereof, the Company at any time may deliver
Warrants to the Warrant Agent for cancellation. The Warrant Registrar and
Warrant Paying Agent shall forward to the Warrant Agent any Warrants surrendered
to them for registration of transfer, exchange or exercise. The Warrant Agent
and no one else shall cancel all Warrants surrendered for registration of
transfer, exchange, exercise, replacement or cancellation and shall destroy
canceled Warrants (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Warrants shall be
delivered to the Company. The Company may not issue new Warrants to replace
Warrants that have been exercised or that have been delivered to the Warrant
Agent for cancellation.
22
SECTION 4. SEPARATION OF WARRANTS; TERMS OF WARRANTS; EXERCISE OF WARRANTS.
(a) The Notes and Warrants will not be separately transferable until
the Separation Date. Subject to the terms of this Agreement, each Holder
shall have the right, which may be exercised during the period commencing
at the opening of business on the Exercise Date and until 5:00 p.m., New
York City time on October 1, 2010 (the "EXERCISE PERIOD"), to receive from
the Company the number of fully paid and nonassessable Warrant Shares which
the Holder may at the time be entitled to receive on exercise of such
Warrants and payment of the Exercise Price (i) by tendering Notes having an
aggregate Accreted Value, plus accrued and unpaid interest, if any thereon
to the date of exercise or (ii) in cash, by wire transfer or by certified
or official check payable to the order of the Company, in each case, equal
to the Exercise Price then in effect for such Warrant Shares; provided that
Holders shall be able to exercise their Warrants only if a Registration
Statement relating to the Warrant Shares is then in effect, or the exercise
of such Warrants is exempt from the registration requirements of the
Securities Act, and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which
the various Holders of the Warrants or other persons to whom it is proposed
that the Warrant Shares be issued on exercise of the Warrants reside. Each
Warrant not exercised prior to 5:00 p.m., New York City time, on October 1,
2010 (the "EXPIRATION DATE") shall become void and all rights thereunder
and all rights in respect thereof under this agreement shall cease as of
such time. No adjustments as to dividends will be made upon exercise of the
Warrants.
(b) In order to exercise all or any of the Warrants represented by a
Warrant Certificate, the holder thereof must deliver to the Warrant Agent
at its corporate trust office set forth in Section 15 hereof the Warrant
Certificate and the form of election to purchase on the reverse thereof
duly filled in and signed, which signature shall be medallion guaranteed by
an institution which is a member of a Securities Transfer Association
recognized signature guarantee program, and upon payment to the Warrant
Agent for the account of the Company of the Exercise Price, which is set
forth in the form of Warrant Certificate attached hereto as Exhibit A, as
adjusted as herein provided, for the number of Warrant Shares in respect of
which such Warrants are then exercised. Payment of the aggregate Exercise
Price shall be made (i) in cash, by wire transfer or by certified or
official bank check payable to the order of the Company or (ii) by
tendering Notes in the manner provided in Section 4(a) hereof.
(c) Subject to the provisions of Section 5 hereof, upon compliance
with clause (b) above, the Warrant Agent shall deliver or cause to be
delivered with all reasonable dispatch, to or upon the written order of the
Holder and in such name or names as the Holder may designate, a certificate
or certificates for the number of whole Warrant Shares issuable upon the
exercise of such Warrants, together with cash delivered by the Company in
lieu of fractional shares as provided in Section 9 hereof; provided that if
any consolidation, merger or lease or sale of assets is proposed to be
effected by the Company as described in Section 8(m) hereof, or a tender
offer or an exchange offer for shares of Common Stock shall be made, upon
such surrender of Warrants and payment of the Exercise Price as aforesaid,
the Warrant Agent shall, as soon as possible, but in any event not later
23
than two Business Days thereafter, deliver or cause to be delivered the
full number of Warrant Shares issuable upon the exercise of such Warrants
in the manner described in this sentence or other securities or property to
which such Holder is entitled hereunder, together with cash as provided in
Section 9 hereof. Such certificate or certificates shall be deemed to have
been issued and any person so designated to be named therein shall be
deemed to have become a Holder of record of such Warrant Shares as of the
date of the surrender of such Warrants and payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the Holders
thereof, either in full or from time to time in part. If less than all the
Warrants represented by a Definitive Warrant are exercised, such Definitive
Warrant shall be surrendered and a new Definitive Warrant of the same tenor
and for the number of Warrants which were not exercised shall be executed
by the Company and delivered to the Warrant Agent and the Warrant Agent
shall countersign the new Definitive Warrant, registered in such name or
names as may be directed in writing by the Holder, and shall deliver the
new Definitive Warrant to the Person or Persons entitled to receive the
same. The Warrant Agent shall make such notations on the Schedule of
Exchange of Interests of Global Warrants to each Global Warrant as are
required to reflect any change in the number of Warrants represented by
such Global Warrant resulting from any exercise in accordance with the
terms hereof.
(e) All Warrant Certificates surrendered upon exercise of Warrants
shall be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
satisfactory to the Company. The Warrant Agent shall account promptly to
the Company with respect to Warrants exercised and concurrently pay to the
Company all monies received by the Warrant Agent for the purchase of the
Warrant Shares through the exercise of such Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at its office. The Company shall supply the
Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may request.
SECTION 5. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issue of any Warrant Certificates or
any certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such Warrant Certificates
unless or until the Person or Persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
24
SECTION 6. RESERVATION OF WARRANT SHARES.
(a) The Company will at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its authorized and issued Common Stock held in its
treasury, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon exercise of Warrants, the maximum number of shares of
Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the Common
Stock (the "TRANSFER Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of
the rights of purchase aforesaid will be irrevocably authorized and
directed at all times to reserve such number of authorized shares as shall
be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon
the exercise of the rights of purchase represented by the Warrants. The
Warrant Agent is hereby irrevocably authorized to requisition from time to
time from such Transfer Agent the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the terms of
this Agreement. The Company will supply such Transfer Agent with duly
executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 9 hereof.
The Company will furnish such Transfer Agent a copy of all notices of
adjustments, and certificates related thereto, transmitted to each Holder
pursuant to Section 10 hereof.
(c) Before taking any action which would cause an adjustment pursuant
to Section 8 hereof to reduce the Exercise Price below the then par value
(if any) of the Warrant Shares, the Company will take any corporate action
which may, in the opinion of its counsel (which may be counsel employed by
the Company), be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
(d) The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable,
free of preemptive rights and free from all taxes, liens, charges and
security interests with respect to the issuance thereof.
SECTION 7. OBTAINING STOCK EXCHANGE LISTINGS.
The Company will from time to time take all action which may be necessary
so that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on the principal securities exchanges, automated
quotation systems or other markets within the United States of America, if any,
on which other shares of Common Stock are then listed, if any.
25
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE.
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 8. For purposes of this
Section 8, "COMMON STOCK" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
(a) Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock, (ii) subdivides its outstanding shares of
Common Stock into a greater number of shares, (iii) combines its outstanding
shares of Common Stock into a smaller number of shares, (iv) makes a
distribution on its Common Stock in shares of its capital stock other than
Common Stock or (v) issues by reclassification of its Common Stock any shares of
its capital stock, then the Exercise Price in effect immediately prior to such
action shall be proportionately adjusted so that the Holder of any Warrant
thereafter exercised may receive the aggregate number and kind of shares of
capital stock of the Company which he would have owned immediately following
such action if such Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification. If, after an
adjustment, a Holder of a Warrant upon exercise of it may receive shares of two
or more classes of capital stock of the Company, the Company shall determine, in
good faith, the allocation of the adjusted Exercise Price between the classes of
capital stock and notify the Warrant Agent of such determination. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section 8. Such adjustment shall be
made successively whenever any event listed above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 45
days after the record date mentioned below to purchase shares of Common
Stock at a price per share less than the Fair Value (as defined herein) per
share on that record date, the Exercise Price shall be adjusted in
accordance with the formula:
26
N x P
O + -----
M
E' = E x ---------
O + N
where:
E'= the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record
date.
N = the number of additional shares of Common Stock issued pursuant to
such rights, options or warrants.
P = the aggregate price per share of the additional shares.
M = the Fair Value per share of Common Stock on the record date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after
the record date for the determination of stockholders entitled to receive
the rights, options or warrants. If at the end of the period during which
such rights, options or warrants are exercisable, not all rights, options
or warrants shall have been exercised, the Exercise Price shall be
immediately readjusted to what it would have been if "N" in the above
formula had been the number of shares actually issued.
(c) Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock any of
its assets or debt securities or any rights or warrants to purchase debt
securities of the Company, the Exercise Price shall be adjusted in
accordance with the formula:
M - F
E' = E x ---------
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
27
M = the Fair Value per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants to be distributed in respect of
one share of Common Stock as determined in good faith by the
Board of Directors of the Company (the "Board of Directors").
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
distribution.
This Section 8(c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as
shown on the books of the Company prepared in accordance with generally
accepted accounting principles. Also, this Section 8(c) does not apply to
rights, options or warrants referred to in Section 8(b) hereof.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock for a consideration per
share less than the Fair Value per share on the date the Company fixes the
offering price of such additional shares, the Exercise Price shall be
adjusted in accordance with the formula:
P
O + ---
M
E' = E x -------
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the issuance
of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the Fair Value per share on the date of issuance of such
additional shares.
28
A = the number of shares outstanding immediately after the issuance of
such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections
(a), (b) and (c) of this Section 8,
(2) the exercise of Warrants, or the conversion or
exchange of other securities convertible or exchangeable for
Common Stock the issuance of which caused an adjustment to
be made under Section 8(e),
(3) Common Stock issued to the Company's employees,
directors or consultants (or employees, directors or
consultants of its Affiliates) under bona fide employee
benefit plans adopted by the Board of Directors and approved
by the holders of Common Stock when required by law, if such
Common Stock would otherwise be covered by this subsection
(d) (but only to the extent that the aggregate number of
shares excluded hereby and issued after the date of this
Warrant Agreement, together with the number of shares
issuable upon conversion of the securities described in
clause (e)(2) below, shall not exceed 5% of the Common Stock
outstanding at the time of the adoption of each such plan,
exclusive of anti-dilution adjustments thereunder),
(4) Common Stock issued to shareholders of any person
which merges with the Company, or with a subsidiary of the
Company, in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger,
provided that if such person is an Affiliate of the Company,
the Board of Directors shall have obtained a fairness
opinion from a nationally recognized investment banking,
appraisal or valuation firm, which is not an Affiliate of
the Company, stating that the consideration received in such
merger is fair to the Company from a financial point of
view,
(5) the issuance of shares of Common Stock pursuant to
rights, options or warrants which were originally issued in
a Non-Affiliate Sale (as defined below) together with one or
more other securities as part of a unit at a price per unit,
29
(6) Common Stock issued upon the exercise of the
convertible securities described in the last paragraph of
clause (e) below, or
(7) Common Stock issued upon the conversion of the
Company's Series A Preferred Stock and Series A-1 Preferred
Stock.
(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible into or exchangeable
for Common Stock (other than securities issued in transactions described in
subsections (b) and (c) of this Section 8) for a consideration per share of
Common Stock initially deliverable upon conversion or exchange of such
securities less than the Fair Value per share on the date of issuance of
such securities, the Exercise Price shall be adjusted in accordance with
this formula:
P
O + ---
M
E' = E x -------
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the Fair Value per share on the date of issuance of such
securities.
D = the maximum number of shares deliverable upon conversion or
in exchange for such securities at the initial conversion or
exchange rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange of
such securities have not been issued when such securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such
securities.
30
This subsection (e) does not apply to:
(1) convertible securities issued to shareholders of
any person which merges with the Company, or with a
subsidiary of the Company, in proportion to their stock
holdings of such person immediately prior to such merger,
upon such merger, provided that if such Person is an
Affiliate of the Company, the Board of Directors shall have
obtained a fairness opinion from a nationally recognized
investment banking, appraisal or valuation firm, which is
not an Affiliate of the Company, stating that the
consideration received in such merger is fair to the Company
from a financial point of view,
(2) convertible securities issued to employees,
directors or consultants of Horizon PCS or its Affiliates
under bona fide employee benefit plans adopted by the Board
of Directors and approved by the holders of Common Stock,
when required by law (but only to the extent the aggregate
number of shares of Common Stock to be issued upon the
exercise of the convertible securities, together with the
number of shares issued pursuant to clause (d)(3) above,
shall not exceed 5% of the Common Stock outstanding at the
time of adoption of each such plan, exclusive of anti-
dilution adjustments thereunder),
(3) issuance of Series A Preferred Stock and Series A-1
Preferred Stock, including dividends thereon.]
(4) the issuance of warrants to purchase shares of
Common Stock to Sprint Spectrum L.P. or its designee
pursuant to Addendum No. 3, dated May 19, 2000, to the
Sprint PCS Management Agreement between Sprint Spectrum,
L.P., Sprintcom, Inc. and Horizon Personal Communications,
Inc. dated June 8, 1998.
(f) Consideration Received.
For purposes of any computation respecting consideration received
pursuant to subsections (d), and (e) of this Section 8, the following shall
apply:
(i) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided
that in no case shall any deduction be made for any commissions,
discounts or other expenses incurred by the Company for any
underwriting of the issue or otherwise in connection therewith;
31
(ii) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of
the accounting treatment thereof), whose determination shall be
conclusive for all purposes, and described in a Board resolution which
shall be filed with the Warrant Agent;
(iii) in the case of the issuance of securities convertible into
or exchangeable for shares, the aggregate consideration received
therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional
minimum consideration, if any, to be received by the Company upon the
conversion or exchange thereof (the consideration in each case to be
determined in the same manner as provided in clauses (i) and (ii) of
this subsection); and
(iv) in the case of the issuance of shares of Common Stock
pursuant to rights, options or warrants which rights, options or
warrants were originally issued together with one or more other
securities as part of a unit at a price per unit, the consideration
shall be deemed to be the fair value of such rights, options or
warrants at the time of issuance thereof as determined in good faith
by the Board of Directors whose determination shall be conclusive and
described in a Board resolution which shall be filed with the Warrant
Agent plus the additional minimum consideration, if any, to be
received by the Company upon the exercise, conversion or exchange
thereof (as determined in the same manner as provided in clauses (i)
and (ii) of this subsection).
(g) Fair Value.
In Sections 8(d) and (e) hereof, the "Fair Value" per security at any
date of determination shall be (1) in connection with a sale by the Company
to a party that is not an Affiliate of the Company in an arm's-length
transaction (a "NON-AFFILIATE SALE"), the price per security at which such
security is sold and (2) in connection with any sale by the Company to an
Affiliate of the Company, (a) the last price per security at which such
security was sold in a Non-Affiliate Sale within the three-month period
preceding such date of determination or (b) if clause (a) is not
applicable, the fair market value of such security determined in good faith
by (i) a majority of the Board of Directors, including a majority of the
Disinterested Directors, and approved in a Board resolution delivered to
the Warrant Agent or (ii) a nationally recognized investment banking,
appraisal or valuation firm, which is not an Affiliate of the Company, in
each case, taking into account, among all other factors deemed relevant by
the Board of Directors or such investment banking, appraisal or valuation
firm, the trading price and volume of such security on any national
securities exchange or automated quotation system on which such security is
traded. Notwithstanding the foregoing, any sale to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation (or any successor thereto) pursuant to an
underwritten public offering registered under the Securities Act shall be
deemed to be and treated as a Non-Affiliate Sale.
32
In Sections 8(b) and (c) hereof, the "Fair Value" per security at any
date of determination shall be (a) the last price per security at which
such security was sold by the Company in a Non-Affiliate Sale within the
three-month period preceding such date of determination or (b) if clause
(a) is not applicable, the fair market value of such security determined in
good faith by (i) a majority of the Board of Directors, including a
majority of the Disinterested Directors, and approved in a Board resolution
delivered to the Warrant Agent or (ii) a nationally recognized investment
banking, appraisal or valuation firm, which is not an Affiliate of the
Company, in each case, taking into account, among all other factors deemed
relevant by the Board of Directors or such investment banking, appraisal or
valuation firm, the trading price and volume of such security on any
national securities exchange or automated quotation system on which such
security is traded.
For purposes of this Section 8(g), "Disinterested Director" means, in
connection with any issuance of securities that gives rise to a
determination of the Fair Value thereof, each member of the Board of
Directors who is not an officer, employee, director or other Affiliate of
the party to whom the Company is proposing to issue the securities giving
rise to such determination.
For purposes of this Section 8(g), "AFFILIATE" of any specified Person
means (A) any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person
and (B) any director, officer or employee of such specified person. For
purposes of this definition "CONTROL" (including, with correlative
meanings, the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
(h) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price.
Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 8
shall be made to the nearest cent or to the nearest 1/100th of a share, as
the case may be, it being understood that no such rounding shall be made
under subsection (p).
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to Section 8(a),
(b), (c), (d), (e) or (f) hereof, if Warrant Holders are to participate
(without being required to exercise their Warrants) in the transaction on a
basis and with written notice that the Board of Directors determines to be
fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction. No adjustment need be made for
(i) rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest,(ii) a change in the par value or no
par value of the Common Stock, or (iii) the adoption of a plan commonly
33
referred to as a "Stockholders' Rights Plan" which provides for the
issuance of rights to acquire shares of capital stock upon the occurrence
of some event that is not within the control of the rights holders, or the
issuance of rights under such plan; provided that the issuance of capital
stock pursuant to such rights shall require adjustment to the Exercise
Price and number of shares of Common Stock purchasable upon the exercise of
each Warrant as set forth in this Agreement. To the extent the Warrants
become convertible into cash, no adjustment need be made thereafter as to
the cash. Interest will not accrue on the cash.
(j) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 10 hereof.
(k) Voluntary Reduction.
The Company from time to time may reduce the Exercise Price by any
amount for any period of time, if the period is at least 20 days and if the
reduction is irrevocable during the period; provided that in no event may
the Exercise Price be less than the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to Warrant
Holders and the Warrant Agent a notice of the reduction. The Company shall
mail the notice at least 15 days before the date the reduced Exercise Price
takes effect. The notice shall state the reduced Exercise Price and the
period in which it will be in effect. A reduction of the Exercise Price
does not change or adjust the Exercise Price otherwise in effect for
purposes of Section 8(a), (b), (c), (d), (e) and (f) hereof.
(l) Notice of Certain Transactions.
If (i) the Company takes any action that would require an adjustment
in the Exercise Price pursuant to Section 8(a), (b), (c), (d), (e) or (f)
hereof and if the Company does not arrange for Warrant Holders to
participate pursuant to Section 8(i) hereof, (ii) the Company takes any
action that would require a supplemental Warrant Agreement pursuant to
Section 8(m) hereof or (iii) there is a liquidation or dissolution of the
Company, then the Company shall mail to Warrant Holders a notice stating
the proposed record date for a dividend or distribution or the proposed
effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The
Company shall mail the notice at least 15 days before such date. Failure to
mail the notice or any defect in it shall not affect the validity of the
transaction.
(m) Reorganization of Company.
Immediately after the date hereof, if the Company consolidates or
merges with or into, or transfers or leases all or substantially all its
assets to, any Person, upon consummation of such transaction the Warrants
shall automatically become exercisable for the kind and amount of
securities, cash or other assets which the Holder of a Warrant would have
owned immediately after the consolidation, merger, transfer or lease if the
Holder had exercised the Warrant immediately before the effective date of
the transaction with notice thereof to the Warrant Agent. Concurrently with
the consummation of such transaction, the corporation formed by or
34
surviving any such consolidation or merger if other than the Company, or
the Person to which such sale or conveyance shall have been made, shall
enter into a supplemental Warrant Agreement so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Section 8(m). The
successor Company shall mail to Warrant Holders and the Warrant Agent a
written notice describing the supplemental Warrant Agreement. If the issuer
of securities deliverable upon exercise of Warrants under the supplemental
Warrant Agreement is an affiliate of the formed, surviving, transferee or
lessee corporation, that issuer shall join in the supplemental Warrant
Agreement. If this Section 8(m) applies, Sections 8(a), (b), (c), (d), (e)
and (f) hereof do not apply.
(n) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to Section 8(a), (c), (d), (e), (f), (g), (h) or (i) hereof is
conclusive.
(o) Warrant Agent's Disclaimer.
The Warrant Agent has no duty to determine when an adjustment under
this Section 8 should be made, how it should be made or what it should be.
The Warrant Agent has no duty to determine whether any provisions of a
supplemental Warrant Agreement under Section 8(m) hereof are correct. The
Warrant Agent makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent
shall not be responsible for the Company's failure to comply with this
Section 8.
(p) When Issuance or Payment May Be Deferred.
In any case in which this Section 8 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may, with notice thereof to the Warrant Agent, elect to
defer until the occurrence of such event (i) issuing to the Holder of any
Warrant exercised after such record date the Warrant Shares and other
capital stock of the Company, if any, issuable upon such exercise over and
above the Warrant Shares and other capital stock of the Company, if any,
issuable upon such exercise on the basis of the Exercise Price and (ii)
paying to such Holder any amount in cash in lieu of a fractional share
pursuant to Section 9 hereof; provided that the Company shall deliver to
such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such
Holder's right to receive such additional Warrant Shares, other capital
stock and cash upon the occurrence of the event requiring such adjustment.
(q) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 8,
each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment
of the adjusted Exercise Price that number of shares of Common Stock
(calculated to the nearest hundredth) obtained from the following formula:
35
E
N' = N x ---
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise
of a Warrant by payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously issuable upon
exercise of a Warrant by payment of the Exercise Price
prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(r) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Warrant Shares on the
exercise of Warrants. If more than one Warrant shall be presented for exercise
in full at the same time by the same Holder, the number of full Warrant Shares
which shall be issuable upon the exercise thereof shall be computed on the basis
of the aggregate number of Warrant Shares purchasable on exercise of the
Warrants so presented. If any fraction of a Warrant Share would, except for the
provisions of this Section 9, be issuable on the exercise of any Warrants (or
specified portion thereof), the Company shall pay an amount in cash equal to the
fair value per Warrant Share, as determined on the day immediately preceding the
date the Warrant is presented for exercise in good faith by the Board of
Directors whose determination shall be conclusive and described in a Board
Resolution which shall be filed with the Warrant Agent, multiplied by such
fraction, computed to the nearest whole U.S. cent.
SECTION 10. NOTICES TO WARRANT HOLDERS.
(a) Upon any adjustment of the Exercise Price pursuant to Section 8
hereof, the Company shall promptly thereafter (i) cause to be filed with
the Warrant Agent a certificate of a firm of independent public accountants
of recognized standing selected by the Board of Directors of the Company
(who may be the regular auditors of the Company) setting forth the Exercise
36
Price after such adjustment and setting forth in reasonable detail the
method of calculation and the facts upon which such calculations are based
and setting forth the number of Warrant Shares (or portion thereof)
issuable after such adjustment in the Exercise Price, upon exercise of a
Warrant and payment of the adjusted Exercise Price, which certificate shall
be conclusive evidence of the correctness of the matters set forth therein,
and (ii) cause to be given to each of the registered holders of Warrants at
the address appearing on the Warrant register for each such registered
holder written notice of such adjustments by first-class mail, postage
prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 10.
(b) In case:
(i) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for
or purchase shares of Common Stock or of any other subscription rights
or warrants;
(ii) the Company shall authorize the distribution to all holders
of shares of Common Stock of evidences of its indebtedness or assets
(other than dividends or cash distributions paid out of consolidated
current or retained earnings as shown on the books of the Company
prepared in accordance with generally accepted accounting principles
or dividends payable in shares of Common Stock or distributions
referred to in Section 8(a) hereof);
(iii) of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or of any
reclassification or change of Common Stock issuable upon exercise of
the Warrants (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for
shares of Common Stock;
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company proposes to take any action (other than actions
of the character described in Section 8(a) hereof) which would require
an adjustment of the Exercise Price pursuant to Section 8 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall
cause to be given to each of the registered holders of Warrants at his or
her address appearing on the Warrant register, at least 20 days (or 10 days
in any case specified in clauses (i) or (ii) above) prior to the applicable
record date hereinafter specified, or promptly in the case of events for
which there is no record date, by first-class mail, postage prepaid, a
written notice stating (x)
37
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are
to be determined, (y) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, or (z) the date on
which any such consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated,
and the date as of which it is expected that holders of record of shares of
Common Stock shall be entitled to exchange such shares for securities or
other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up. The failure to give the notice required by this Section 10 or
any defect therein shall not affect the legality or validity of any
distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or the vote upon any
action.
(c) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the Holders of Warrants
the right to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter, or any rights whatsoever as stockholders of
the Company.
SECTION 11. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(a) Any Person into which the Warrant Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any Person
succeeding to the 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 any of the parties hereto, provided that
such Person would be eligible for appointment as a successor warrant agent
under the provisions of Section 13 hereof. 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 that 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 to the Warrant Agent; and in all such cases
such Warrant Certificates shall have the full force and effect provided in
the Warrant Certificates and in this Agreement.
(b) 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 whose name has been
changed 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 name, and in all such cases such
Warrant Certificates shall have the full force and effect provided in the
Warrant Certificates and in this Agreement.
38
SECTION 12. WARRANT AGENT.
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 the Holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein 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
describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution of
the Warrant Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or
in the Warrant Certificates to be complied with by the Company.
(c) 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
holder of any Warrant Certificate in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the opinion
or the advice of such counsel.
(d) The Warrant Agent shall incur no responsibility to the Company or
to any holder of any Warrant Certificate for any action taken in reliance
on any Warrant Certificate, certificate of shares, adjustments,
determination, notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation (which shall include the reasonable fees and expenses of its
counsel) for all services rendered by the Warrant Agent in the execution,
administration, preparation, delivery and amendment 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, administration, preparation, delivery and amendment
of this Agreement. The Company shall indemnify the Warrant Agent against
any and all losses, liabilities or expenses incurred by it arising out of
or in connection with the acceptance or administration of its duties under
this Warrant Agreement, including the costs and expenses of enforcing this
Warrant Agreement against the Company and defending itself against any
claim (whether asserted by the Company or any Holder or any other Person)
or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its gross negligence or wilful
misconduct. The indemnity provided in this Agreement shall survive the
termination of this Agreement and the resignation or removal of the Warrant
Agent. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company. The Warrant Agent shall
notify the Company promptly of any claim for which it may seek indemnity.
39
Failure by the Warrant Agent to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim
and the Warrant Agent shall cooperate in the defense. The Warrant Agent may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(f) 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 registered holders of
Warrants 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 it 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 proceeding
instituted by the Warrant Agent shall be brought in its name as Warrant
Agent and any recovery of judgment shall be for the ratable benefit of the
registered holders of the Warrants, as their respective rights or interests
may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, 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 Person.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do
or refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder of any Warrant Certificate to make or cause to
be made any adjustment of the Exercise Price or number of the Warrant
Shares or other securities or property deliverable as provided in this
Agreement, or to determine whether any facts exist which may require any of
such adjustments, or with respect to the nature or extent of any such
adjustments, when made, or with respect to the method employed in making
the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Warrant Shares or of any
securities or property which may at any time be issued or delivered upon
the exercise of any Warrant or with respect to whether any such Warrant
Shares or other securities will when issued be validly issued and fully
paid and nonassessable, and makes no representation with respect thereto.
40
(j) The Warrant Agent, in its capacity as Warrant Registrar, shall
have all the rights, powers, privileges, exculpation, protections, and
indemnities as are provided to the Warrant Agent under this Agreement.
SECTION 13. CHANGE OF WARRANT AGENT.
The Warrant Agent may resign as Warrant Agent at any time following 30 days
written notice thereof to the Company. If the Warrant Agent shall become
incapable of acting as Warrant Agent, the Company shall appoint a successor to
such Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such incapacity by
the Warrant Agent or by the registered Holder of a Warrant Certificate, then the
registered Holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to such Warrant Agent, either by the Company or by
such a court, the duties of the Warrant Agent shall be carried out by the
Company. The Holders of a majority of the unexercised Warrants shall be entitled
at any time to remove the Warrant Agent and appoint a successor to such Warrant
Agent. Such successor to the Warrant Agent need not be approved by the Company
or the former Warrant Agent. After appointment, the successor to the 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;
provided that the former Warrant Agent shall deliver and transfer to the
successor to the 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 13,
however, or any defect therein, shall not affect the legality or validity of the
appointment of a successor to the Warrant Agent.
SECTION 14. REPORTS.
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Warrants are outstanding, the Company shall
furnish to the Warrant Agent and the Holders of Warrants (i) all quarterly
and annual financial information that would be required to be contained in
a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would
be required to be filed with the Commission on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of
all such information and reports with the Commission for public
availability (unless the Commission shall not accept such a filing) and
make such information available to securities analysts and prospective
investors upon request.
(b) The Company shall provide the Warrant Agent with a sufficient
number of copies of all such reports that the Warrant Agent may be required
to deliver to the Holders of the Warrants under this Section 14.
41
SECTION 15. NOTICES TO COMPANY AND WARRANT AGENT.
Any notice or demand authorized by this Agreement to be given or made by
the Warrant Agent or by the registered holder of any Warrant to or on the
Company shall be sufficiently given or made when received if deposited in the
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
Horizon PCS, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to:
Arnall Golden & ▇▇▇▇▇▇▇, LLP
2800 One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: T. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder(s) of any Warrant to the Warrant Agent shall be sufficiently
given when and if deposited in the mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) to the Warrant Agent as follows:
▇▇▇▇▇ Fargo Bank/Minnesota, National Association
Sixth & Marquette, MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
SECTION 16. SUPPLEMENTS AND AMENDMENTS.
The Company and the Warrant Agent may from time to time supplement or amend
this Agreement without the approval of any Holders of Warrants in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
42
Company and the Warrant Agent may deem necessary or desirable and which shall
not in any way adversely affect the interests of the Holders of Warrants. Any
amendment or supplement to this Agreement that has an adverse effect on the
interests of the Holders of Warrants shall require the written consent of the
Holders of a majority of the then outstanding Warrants (excluding Warrants held
by the Company or any of its affiliates). The consent of each Holder of Warrants
affected shall be required for any amendment pursuant to which the Exercise
Price would be increased or the number of Warrant Shares purchasable upon
exercise of Warrants would be decreased (other than pursuant to adjustments
provided in this Agreement). Upon receipt of a certificate from the appropriate
officer of the Company which states that the proposed supplement or amendment is
in compliance with the terms of this Section 16, and such supplement or
amendment does not change the Warrant Agent's duties, liabilities or
obligations, the Warrant Agent shall execute such supplement or amendment.
SECTION 17. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder including, without limitation and
without the need for an express assignment, subsequent Holders.
SECTION 18. TERMINATION.
This Agreement shall terminate at 5:00 p.m., New York City time on October
1, 2010. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date if all Warrants have been exercised. The provisions of Section 12
shall survive such termination.
SECTION 19. GOVERNING LAW.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the internal laws of said State.
SECTION 20. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any Person other
than the Company, the Warrant Agent and the registered holders of Warrants any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of Warrants. The Company agrees that
the Holders of the Warrants shall be third-party beneficiaries to the agreements
made hereunder by the Company and each Holder shall have the right to enforce
such agreements directly to the extent it deems enforcement necessary or
advisable to protect its rights hereunder.
43
SECTION 21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and 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.
[Signature Page Follows]
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
HORIZON PCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Warrant Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Corporate Trust Officer
EXHIBIT A
[Form of Warrant Certificate]
[Face]
Unit Legend. Each Warrant issued prior to the Separation Date shall bear
the following legend (the "UNIT LEGEND") on the face thereof:
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF 295,000 UNITS (THE "UNITS"), EACH OF WHICH CONSIST OF $1,000
PRINCIPAL AMOUNT AT MATURITY OF THE 14% SENIOR DISCOUNT NOTES DUE 2010 OF
HORIZON PCS, INC. (THE "NOTES") AND ONE WARRANT (THE "WARRANTS") INITIALLY
ENTITLING THE HOLDER THEREOF TO PURCHASE 12.90 SHARES OF CLASS A COMMON STOCK,
PAR VALUE $.0001 PER SHARE, OF HORIZON PCS, INC.
PRIOR TO THE EARLIEST OF (I) 180 DAYS AFTER THE CLOSING OF THE OFFERING OF THE
UNITS, (II) THE DATE ON WHICH A REGISTRATION STATEMENT WITH RESPECT TO A
REGISTERED EXCHANGE OFFER FOR THE NOTES IS DECLARED EFFECTIVE UNDER THE ACT,
(III) THE DATE A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES IS
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (IV) THE OCCURRENCE OF A CHANGE OF
CONTROL OR AN EVENT OF DEFAULT (EACH AS DEFINED IN THE INDENTURE GOVERNING THE
NOTES) AND (V) SUCH DATE AS ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
(OR ITS SUCCESSOR OR ASSIGN) IN ITS SOLE DISCRETION SHALL DETERMINE, THE
WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE
NOTES.
[THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
WARRANT AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF THE
WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT, (III) THIS
GLOBAL WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR CANCELLATION
PURSUANT TO SECTION 3.8 OF THE WARRANT AGREEMENT AND (IV) THIS GLOBAL
A-1
WARRANT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY. (1)
Private Placement Legend: Each Warrant issued pursuant to an exemption
from the registration requirements of the Securities Act shall bear the
following legend (the "PRIVATE PLACEMENT LEGEND") on the face thereof:
THIS SECURITY (OR ITS PREDECESSOR) AND THE WARRANT SHARES TO BE ISSUED
UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),(2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE WARRANT AGENT A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY
(THE FORM OF WHICH CAN BE OBTAINED FROM THE WARRANT AGENT) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITY LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G)
_____________________
(1) This paragraph should be included only if the warrant is issued in global
form.
A-2
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION,
(3) AGREES NOT TO ENGAGE IN HEDGING TRANSACTIONS UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE WARRANT AGREEMENT CONTAINS A PROVISION REQUIRING THE WARRANT AGENT
TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
No. ___________ ________ Warrants
CUSIP No. ________
A-3
Warrant Certificate
HORIZON PCS, INC.
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of Warrants expiring October 1, 2010 (the
"WARRANTS") to purchase Class A Common Stock, par value $.0001 (the "COMMON
STOCK"), of Horizon PCS, Inc., a Delaware corporation (the "COMPANY"). Each
Warrant entitles the registered holder upon exercise at any time from 9:00 a.m.
on October 1, 2001 referred to below (the "EXERCISE DATE") until 5:00 p.m. New
York City time on October 1, 2010, to receive from the Company 12.90 fully paid
and nonassessable shares of Common Stock (the "WARRANT Shares") at the initial
exercise price (the "EXERCISE PRICE") of $5.88 per share payable upon surrender
of this Warrant Certificate and payment of the Exercise Price at the office or
agency of the Warrant Agent, but only subject to the conditions set forth herein
and in the Warrant Agreement referred to on the reverse hereof. The Exercise
Price and number of Warrant Shares issuable upon exercise of the Warrants are
subject to adjustment upon the occurrence of certain events set forth in the
Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City time on October
1, 2010, and to the extent not exercised by such time such Warrants shall become
void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
A-4
IN WITNESS WHEREOF, Horizon PCS, Inc. has caused this Warrant Certificate
to be signed below.
DATED: [__], 2000
HORIZON PCS, INC.
By: ______________________________
Name:
Title:
Countersigned:
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Warrant Agent
By:_______________________________
Authorized Signature
A-5
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring at 5:00 p.m. New York City time on October
1, 2010 entitling the holder on exercise to receive shares of Common Stock, and
are issued or to be issued pursuant to a Warrant Agreement dated as of September
26, 2000 (the "WARRANT AGREEMENT"), duly executed and delivered by the Company
to ▇▇▇▇▇ Fargo Bank, National Association, as warrant agent (the "WARRANT
AGENT"), which Warrant Agreement is hereby incorporated by reference in and made
a part of this instrument and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Warrant Agent, the Company and the holders (the words "HOLDERS" or "HOLDER"
meaning the registered holders or registered holder) of the Warrants. A copy of
the Warrant Agreement may be obtained by the holder hereof upon written request
to the Company.
Warrants may be exercised at any time on or after the Exercise Date and on
or before 5:00 p.m. New York City time on October 1, 2010; provided that holders
shall be able to exercise their Warrants only if a Registration Statement
relating to the exercise of the Warrants is then in effect, or the exercise of
such Warrants is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), and such securities are qualified
for sale or exempt from qualification under the applicable securities laws of
the states in which the various holders of the Warrants or other persons to whom
it is proposed that the Warrant Shares be issued on exercise of the Warrants
reside. In order to exercise all or any of the Warrants represented by this
Warrant Certificate, the holder must deliver to the Warrant Agent at its New
York corporate trust office set forth in Section 15 of the Warrant Agreement
this Warrant Certificate and the form of election to purchase on the reverse
hereof duly filled in and signed, which signature shall be medallion guaranteed
by an institution which is a member of a Securities Transfer Association
recognized signature guarantee program, and upon payment to the Warrant Agent
for the account of the Company of the Exercise Price, as adjusted as provided in
the Warrant Agreement, for the number of Warrant Shares in respect of which such
Warrants are then exercised. No adjustment shall be made for any dividends on
any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
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service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
A-7
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____________ shares of
Class A Common Stock and herewith tenders payment for such shares to the order
of Horizon PCS, Inc., in the amount of $__________ in accordance with the terms
hereof. The undersigned requests that a certificate for such shares be
registered in the name of _______________, whose address is __________________
and that such shares be delivered to ___________, whose address is
____________________________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of ______________________, whose address is
____________________, and that such Warrant Certificate be delivered to whose
address is ____________________.
________________________________
Signature
Date: __________________________
________________________________
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-8
SCHEDULE OF EXCHANGES OF INTERESTS
OF GLOBAL WARRANTS (2)
The following exchanges of a part of this Global Warrant have been made:
Amount of
decrease in Amount of
Number of increase in Number of Signature of
warrants in Number of Warrants in this Global authorized
Date of this Global Warrants in this Warrant following such officer of
Exchange Warrant Global Warrant decrease or increase Warrant Agent
__________________________________________________________________________________________________
_______________________________
(2) To be included only on Global Warrants.
A-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Horizon PCS, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank/Minnesota, National Association
Sixth & Marquette, MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Warrants
Reference is hereby made to the Warrant Agreement, dated as of September
26, 2000 (the "WARRANT AGREEMENT"), between Horizon PCS, Inc., as issuer (the
"COMPANY"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as warrant
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Warrant Agreement.
__________________, (the "TRANSFEROR") owns and proposes to transfer the
Warrant[s] or interest in such Warrant[s] specified in Annex A hereto, in the
amount of $__________ in such Warrant[s] or interests (the "TRANSFEr"), to
_____________________ (the "TRANSFEREE"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. _ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL WARRANT OR A DEFINITIVE WARRANT PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Warrant is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Warrant for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Warrant
and/or the Definitive Warrant and in the Warrant Agreement and the Securities
Act.
B-1
2. _ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL WARRANT OR A DEFINITIVE WARRANT PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Warrant Agreement, the transferred beneficial interest or
Definitive Warrant will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Warrant and/or
the Definitive Warrant and in the Warrant Agreement and the Securities Act.
3. _ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL WARRANT OR A DEFINITIVE WARRANT PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Warrants and Restricted
Definitive Warrants and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of any state of the United States,
and accordingly the Transferor hereby further certifies that (check one):
(a) _ such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) _ such Transfer is being effected to the Company or a subsidiary
thereof;
or
B-2
(c) _ such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) _ such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Warrant or Restricted
Definitive Warrants and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee
in the form of Exhibit D to the Warrant Agreement and (2) if the Company
requests, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Warrant and/or the Definitive Warrants and in the Warrant Agreement
and the Securities Act.
4. _ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL WARRANT OR OF AN UNRESTRICTED DEFINITIVE WARRANT.
(a) _ CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Warrant Agreement and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Warrant Agreement and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act. Upon consummation
of the proposed Transfer in accordance with the terms of the Warrant
Agreement, the transferred beneficial interest or Definitive Warrant will
no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Warrants, on
Restricted Definitive Warrants and in the Warrant Agreement.
(b) _ CHECK IF TRANSFER IS PURSUANT TO REGULATIONS. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Warrant Agreement and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on
transfer contained in the Warrant Agreement and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the
terms of the Warrant Agreement, the transferred beneficial interest or
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Definitive Warrant will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Warrants, on Restricted Definitive Warrants and in the
Warrant Agreement.
(c) _ CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Warrant Agreement and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on
transfer contained in the Warrant Agreement and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the
terms of the Warrant Agreement, the transferred beneficial interest or
Definitive Warrant will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Warrants or Restricted Definitive Warrants and in the Warrant Agreement.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_____________________________________
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) __ a beneficial interest in the:
(i) __ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or
(ii) __ Regulation S Global Warrant; or
(b) __ a Restricted Definitive Warrant.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) __ a beneficial interest in the:
(i) __ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or
(ii) __ Regulation S Global Warrant, or
(iii) __ Unrestricted Global Warrant; or
(b) __ a Restricted Definitive Warrant; or
(c) __ an Unrestricted Definitive Warrant,
in accordance with the terms of the Warrant Agreement.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Horizon PCS, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank/Minnesota, National Association
Sixth & Marquette, MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Warrants
(CUSIP ____________)
Reference is hereby made to the Warrant Agreement, dated as of September
26, 2000 (the "WARRANT Agreement"), between Horizon PCS, Inc., as issuer (the
"COMPANY"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as warrant
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Warrant Agreement.
__________________________, (the "OWNER") owns and proposes to exchange the
Warrant[s] or interest in such Warrant[s] specified herein, in the amount of
$____________ in such Warrant[s] or interests (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL WARRANT FOR UNRESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL WARRANT
(a) _ Check if Exchange is from beneficial interest in a Restricted
Global Warrant to beneficial interest in an Unrestricted Global Warrant. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Warrant for a beneficial interest in an Unrestricted
Global Warrant in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Warrants and pursuant to
and in accordance with the United States Securities Act of 1933, as amended
(the "Securities Act"), (iii) the restrictions on transfer contained in the
Warrant Agreement and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Warrant is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
C-1
(b) _ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL WARRANT TO UNRESTRICTED DEFINITIVE WARRANT. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Warrant
for an Unrestricted Definitive Warrant, the Owner hereby certifies (i) the
Definitive Warrant is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Warrants and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Warrant Agreement and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Warrant is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) _ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL WARRANT. In connection with
the Owner's Exchange of a Restricted Definitive Warrant for a beneficial
interest in an Unrestricted Global Warrant, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to Restricted Definitive Warrants and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Warrant Agreement and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(d) _ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
UNRESTRICTED DEFINITIVE WARRANT. In connection with the Owner's Exchange of
a Restricted Definitive Warrant for an Unrestricted Definitive Warrant, the
Owner hereby certifies (i) the Unrestricted Definitive Warrant is being
acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable
to Restricted Definitive Warrants and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Warrant Agreement and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Warrant is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL WARRANTS FOR RESTRICTED DEFINITIVE WARRANTS OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL WARRANTS
C-2
(a) _ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL WARRANT TO RESTRICTED DEFINITIVE WARRANT. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Warrant
for a Restricted Definitive Warrant in a number equal to the number of
beneficial interests exchanged, the Owner hereby certifies that the
Restricted Definitive Warrant is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Warrant Agreement, the Restricted Definitive Warrant
issued will continue to be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Definitive Warrant and in the Warrant Agreement and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE WARRANT TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL WARRANT. In connection with the
Exchange of the Owner's Restricted Definitive Warrant for a beneficial
interest in the [CHECK ONE] _ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, _ Regulation S Global
Warrant, _ IAI Global Warrant in a number equal to the number of beneficial
interests exchanged, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Warrants and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Warrant Agreement, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Warrant and in the Warrant Agreement and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________
[Insert Transferor]
By:
Name:
Title:
Dated: ____________________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Horizon PCS, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank/Minnesota, National Association
Sixth & Marquette, MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Warrants
Reference is hereby made to the Warrant Agreement, dated as of September
26, 2000 (the "Warrant Agreement"), between Horizon PCS, Inc., as issuer (the
"Company"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as warrant
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Warrant Agreement.
In connection with our proposed purchase of $____________ amount of:
(a) _ a beneficial interest in a Global Warrant, or
(b) _ a Definitive Warrant,
we confirm that:
1. We understand that any subsequent transfer of the Warrants or any
interest therein is subject to certain restrictions and conditions set forth in
the Warrant Agreement and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Warrants or any interest therein except
in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Warrants have not been
registered under the Securities Act, and that the Warrants and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Warrants or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
D-1
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if
requested by the Company, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Warrant or beneficial interest in a Global
Warrant from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Warrants or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Warrants purchased by us will bear
a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Warrants, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Warrants or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
We agree not to engage in any hedging transactions with regard to the
Warrants unless such hedging transactions are in compliance with the Securities
Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ________________________
D-2