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EXHIBIT 4.8
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WARRANT AGREEMENT
DATED AS OF SEPTEMBER 23, 1997
BY AND BETWEEN
HIGHWAYMASTER COMMUNICATIONS, INC.
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
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WARRANT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. Certain Definitions...........................................................................................1
SECTION 2. Appointment of Warrant Agent..................................................................................3
SECTION 3. Issuance of Warrants; Warrant Certificates....................................................................3
SECTION 4. Execution of Warrant Certificates.............................................................................4
SECTION 5. Separation of Warrants........................................................................................4
SECTION 6. Registration and Countersignature.............................................................................4
SECTION 7. Registration of Transfers and Exchanges.......................................................................5
(a) Transfer and Exchange of Global Warrants.....................................................................5
(b) Exchange of a Beneficial Interest in a Global Warrant for a Definitive Warrant...............................5
(c) Transfer and Exchange of Definitive Warrants.................................................................6
(d) Restrictions on Exchange or Transfer of a Definitive Warrant for a Beneficial Interest in a
Global Warrant..............................................................................................7
(e) Restrictions on Transfer and Exchange of Global Warrants.....................................................8
(f) Countersigning of Definitive Warrants in Absence of Depositary...............................................8
(g) Legends......................................................................................................8
(h) Cancellation of Global Warrant..............................................................................10
(i) Obligations with Respect to Transfers and Exchanges of Warrants.............................................10
SECTION 8. Terms of Warrants; Exercise of Warrants.......................................................................10
SECTION 9. Payment of Taxes.............................................................................................12
SECTION 10. Mutilated or Missing Warrant Certificates...................................................................12
SECTION 11. Reservation of Warrant Shares...............................................................................12
SECTION 12. Obtaining Stock Exchange Listings...........................................................................13
SECTION 13. Adjustment of Exercise Price and Number of Warrant Shares Issuable..........................................13
(a) Stock Splits, Combinations, etc.............................................................................13
(b) Reclassification, Combinations, Mergers, etc................................................................14
(c) Issuance of Options or Convertible Securities...............................................................14
(d) Dividends and Distributions.................................................................................15
(e) Current Market Price........................................................................................16
(f) Certain Distributions.......................................................................................17
(g) Consideration Received......................................................................................17
(h) Deferral of Certain Adjustments............................................................................17
(i) Changes in Options and Convertible Securities..............................................................17
(j) Expiration of Options and Convertible Securities...........................................................17
(k) Other Adjustments..........................................................................................18
SECTION 14. Statement on Warrants.......................................................................................18
SECTION 15. Fractional Interest.........................................................................................18
SECTION 16. Notices to Warrant Holders..................................................................................18
SECTION 17. Merger, Consolidation or Change of Name of Warrant Agent....................................................20
SECTION 18. Warrant Agent...............................................................................................21
SECTION 19. Resignation and Removal of Warrant Agent: Appointment of Successor...........................................22
SECTION 20. Registration.................................................................................................23
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SECTION 21. Reports......................................................................................................23
SECTION 22. Rule 144A....................................................................................................23
SECTION 23. Notices to Company and Warrant Agent.........................................................................24
SECTION 24. Supplement and Amendments....................................................................................24
SECTION 25. Successors...................................................................................................25
SECTION 26. Termination..................................................................................................25
SECTION 27. Governing Law................................................................................................25
SECTION 28. Benefits of This Agreement...................................................................................25
SECTION 29. Counterparts.................................................................................................25
EXHIBIT A--Form of Warrant Certificate...................................................................................A-1
EXHIBIT B--Form of Transferor's Notice...................................................................................B-1
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of September 23, 1997, by and
between HighwayMaster Communications, Inc., a Delaware corporation, and Texas
Commerce Bank National Association, as warrant agent.
WHEREAS, the Company proposes to issue warrants (the
"Warrants") to purchase up to an aggregate of 820,750 shares of Common Stock
(as defined below), in connection with the offering of an aggregate of
$125,000,000 principal amount of the Company's 13 3/4 % Senior Notes due 2005
(the "Notes"), each Warrant entitling the holder thereof to purchase 6.566
shares of Common Stock. The Notes and the Warrants will be sold in Units (the
"Units"), each Unit consisting of $1,000 principal amount of Notes and one
Warrant.
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 below) and
other matters as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, and for the purpose of defining the
respective rights and obligations of the Company, the Warrant Agent and the
Holders (as defined below), the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement,
the following terms shall have the following respective meanings:
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Warrant Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Equity Securities" means Common Stock and securities
convertible into, or exercisable or exchangeable for, Common Stock or rights or
options to acquire Common Stock or such other securities, excluding the
Warrants.
"Common Stock" means the common stock, par value $.01 per
share, of the Company, and any other capital stock of the Company into which
such common stock may be converted or reclassified or that may be issued in
exchange or substitution for such common stock by reason of any stock splits,
stock dividends, distributions, mergers, consolidations or other like events.
"Company" means HighwayMaster Communications, Inc., a
Delaware corporation, and its successors and assigns.
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"Convertible Securities" has the meaning given such term in
Section 13(c).
"Definitive Warrants" has the meaning given such term in
Section 3.
"Depositary" has the meaning given such term in Section 3.
"Distribution" has the meaning given such term in Section
13(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended
"Exercisability Date" means any time on or after the earlier
to occur of (i) September 23, 1998 and (ii) in the event a Change of Control
(as defined in the Indenture) occurs, the date the Company or the Trustee mails
notice thereof to the holders of the Notes and the Holders.
"Exercise Price" means the purchase price per share of Common
Stock to be paid upon the exercise of a Warrant in accordance with the terms
hereof, which price shall initially be $9 5/8 per share, subject to adjustment
from time to time pursuant to Section 13 hereof.
"Expiration Date" means September 15, 2005.
"Global Warrants" has the meaning given such term in
Section 3.
"Holder" means a Person who is the record holder of Warrants.
"Indenture" means the Indenture, dated the date hereof, among
the Company, HighwayMaster Corporation, a Delaware corporation, and Texas
Commerce Bank National Association, as trustee.
"Initial Purchasers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇
▇▇▇▇▇▇ Inc.
"Note Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of the date hereof, among the Company,
HighwayMaster Corporation, a Delaware corporation, and the Initial Purchasers
relating to the Notes.
"Notes" has the meaning given to such term in the recitals
hereto.
"Options" has the meaning given such term in Section 13(c).
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Purchase Agreement" means the Purchase Agreement, dated as
of September 18, 1997, among the Company, HighwayMaster Corporation, and the
Initial Purchasers.
"Registrable Securities" means each Warrant until such
Warrant (i) is effectively registered under the Securities Act and disposed of
in accordance with a registration statement filed pursuant to the Warrant
Registration Rights Agreement or (ii) is distributed (and not merely eligible
for distribution) to the public pursuant to Rule 144 under the Securities Act.
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"Regulation S Global Warrant" has the meaning given such term
in Section 3.
"SEC Reports" has the meaning given such term in Section 21.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation Date" means the earlier of (i) 180 days after the
issuance of the Units, (ii) such date as the Initial Purchasers may, in their
discretion, deem appropriate, (iii) in the event a Change of Control (as
defined in the Indenture) occurs, the date the Company or the Trustee mails
notice thereof to the registered holders of the Notes, (iv) the commencement of
the Exchange Offer (as defined in the Note Registration Rights Agreement), and
(v) the effectiveness of the shelf registration statement relating to the Notes
pursuant to the Note Registration Rights Agreement.
"Time of Determination" has the meaning given such term in
Section 13(e).
"Transfer Agent" has the meaning given such term in
Section 11.
"Trustee" means the trustee under the Indenture.
"Units" has the meaning given to such term in the recitals
hereto.
"Warrant Agent" means Texas Commerce Bank National
Association or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
"Warrant Certificates" has the meaning given such term in
Section 3.
"Warrant Registration Rights Agreement" means the Warrant
Registration Rights Agreement, dated as of the date hereof, by and among the
Company and the Initial Purchasers relating to the Warrants and the Warrant
Shares.
"Warrant Shares" means the shares of Common Stock issuable
upon the exercise of the Warrants, along with any other property or securities
issuable with respect to the Warrants.
"Warrants" has the meaning given such term in the recitals
hereto.
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. The
Warrants will be issued in the form of one or more global certificates (the
"Global Warrants"), substantially in the form of Exhibit A (including the text
accompanying footnote 1 thereto and the schedule referred to in footnote 2
thereto). The Global Warrants shall be
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deposited on the issue date with, or on behalf of, The Depository Trust Company
(the "Depositary") and registered in the name of Cede & Co., as the
Depositary's nominee, provided that any Warrants resold in Exempt Resales (as
defined in the Purchase Agreement) to Regulation S Investors (as defined in the
Purchase Agreement) shall be registered in the name of Cede & Co. for the
accounts of Euroclear System and Cedel, S.A. (a "Regulation S Global Warrant").
Any Warrants evidenced by the Regulation S Global Warrant may only be
transferred in accordance with the provisions of Regulation S under the
Securities Act. Each Global Warrant shall represent such of the outstanding
Warrants as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Warrants from time to time
endorsed thereon and that the aggregate amount of outstanding Warrants
represented thereby may from time to time be reduced or increased, as
appropriate. Upon request, a beneficial owner of Warrants may receive from the
Depositary and the Warrant Agent Warrants in definitive form (the "Definitive
Warrants"), substantially in the form of Exhibit A (not including the text
accompanying footnote 1 or the schedule referred to in footnote 2 thereto) as
set forth in Section 7 below. Any certificates evidencing the Global Warrants
or the Definitive Warrants to be delivered pursuant to this Agreement are
hereafter referred to as the "Warrant Certificates".
SECTION 4. Execution of Warrant Certificates. Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board or its President or a Vice President and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any individual who shall have been Chairman of the Board,
President, Vice President, Secretary or Assistant Secretary, notwithstanding
the fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of such individual shall have ceased to hold such office.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
In case any officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such individual had not
ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by any individual who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the execution
of this Warrant Agreement any such person was not such an officer.
Warrant Certificates shall be dated the date of the
countersignature.
SECTION 5. Separation of Warrants. The Notes and Warrants
shall not be separately transferable prior to the Separation Date.
SECTION 6. Registration and Countersignature. The Warrant
Agent, on behalf of the Company, shall number and register the Warrant
Certificates in a register as they are issued by the Company.
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Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the
Board, the President, a Vice President, the Treasurer or the Controller of the
Company, initially countersign, issue and deliver Warrants entitling the
Holders thereof to purchase not more than the number of Warrant Shares referred
to above in the first recital hereof and shall countersign and deliver Warrants
as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the
Holders of the Warrant Certificates as the absolute owners thereof
(notwithstanding any notation of beneficial ownership or other writing thereon
made by anyone), for all purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary. Prior to the Separation
Date, the registered holder of the Unit shall be deemed the registered Holder
of such Warrants for all purposes hereunder.
SECTION 7. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Global Warrants. The transfer
and exchange of Global Warrants or beneficial interests therein shall be
effected through the Depositary, in accordance with this Warrant Agreement and
the procedures of the Depositary therefor.
(b) Exchange of a Beneficial Interest in a Global Warrant for
a Definitive Warrant.
(i) Any Person having a beneficial interest in a Global Warrant
may upon request exchange such beneficial interest for a
Definitive Warrant. Upon receipt by the Warrant Agent of
written instructions or such other form of instructions as is
customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest
in a Global Warrant and, in the case of any Warrant that
constitutes a Registrable Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being delivered to
the Person designated by the Depositary as being the
beneficial owner, a certification to that effect (in
substantially the form of Exhibit B hereto);
(B) if such beneficial interest is being transferred (1)
to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (2)
pursuant to an effective registration statement
under the Securities Act, a certification to that
effect (in substantially the form of Exhibit B
hereto);
(C) if such beneficial interest is being transferred to
any institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement
exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel
if the Company so requests in the case of a transfer
of Warrants to purchase 656.6 or fewer
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Warrant Shares), a certification to that effect (in
substantially the form of Exhibit B hereto) and a
certification from the applicable transferee in form
and substance reasonably satisfactory to the
Company;
(D) if such beneficial interest is being transferred
pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act, a
certification to that effect (in substantially the
form of Exhibit B hereto), provided that no Warrants
represented by the Regulation S Global Warrant may
be exchanged for Definitive Warrants until
expiration of the applicable restricted period under
Regulation S of the Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act (and based on an
opinion of counsel if the Company so requests), a
certification to that effect (in substantially the
form of Exhibit B hereto);
then 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 Warrants to be reduced and,
following such reduction, the Company shall execute and the
Warrant Agent shall countersign and deliver to the
transferee, as the case may be, a Definitive Warrant.
(ii) Definitive Warrants issued in exchange for a beneficial
interest in a Global Warrant pursuant to this Section 7(b)
shall be registered in such names as the Depositary, pursuant
to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent. The Warrant
Agent shall deliver such Definitive Warrants to the Persons
in whose names such Warrants are so registered.
(c) Transfer and Exchange of Definitive Warrants. When
Definitive Warrants are presented to the Warrant Agent with a request:
(i) to register the transfer of the Definitive Warrants; or
(ii) to exchange such Definitive Warrants for an equal number of
Definitive Warrants of other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met; provided, however, that the
Definitive Warrants presented or surrendered for registration of transfer or
exchange:
(x) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Warrant
Agent, duly executed by the Holder thereof or by his
attorney, duly authorized in writing; and
(y) in the case of any Warrant that constitutes a Registrable
Security, such request shall be accompanied by the following
additional information and documents, as applicable:
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(A) if such Warrant is being delivered to the Warrant
Agent by a Holder for registration in the name of
such Holder, without transfer, a certification from
such Holder to that effect (in substantially the
form of Exhibit B hereto);
(B) if such Warrant is being transferred (1) to a
"qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with
Rule 144A under the Securities Act or (2) pursuant
to an effective registration statement under the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto);
(C) if such Warrant is being transferred to an
institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement
exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel
if the Company so requests in the case of a transfer
of Warrants to purchase 656.6 or fewer Warrant
Shares), a certification to that effect (in
substantially the form of Exhibit B hereto) and a
certification from the applicable transferee;
(D) if such Warrant is being transferred pursuant to an
exemption from registration in accordance with Rule
904 under the Securities Act, a certification to
that effect (in substantially the form of Exhibit B
hereto); or
(E) if such Warrant is being transferred in reliance on
another exemption from the registration requirements
of the Securities Act (and based on an opinion of
counsel if the Company so requests) a certification
to that effect (in substantially the form of Exhibit
B hereto).
(d) Restrictions on Exchange or Transfer of a Definitive
Warrant for a Beneficial Interest in a Global Warrant. A Definitive Warrant may
not be exchanged for a beneficial interest in a Global Warrant except upon
satisfaction of the requirements set forth below. Upon receipt by the Warrant
Agent of a Definitive Warrant, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Warrant Agent, together
with:
(i) if such Warrant is a Registrable Security, certification from
the Holder thereof (in substantially the form of Exhibit B
hereto) to the effect that such Definitive Warrant is being
transferred by such Holder either (A) to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the
Securities Act, or (B) outside the United States to a foreign
person in a transaction meeting the requirements of Rule 904
under the Securities Act; and
(ii) written instructions directing the Warrant Agent to make, or
to direct the Depositary to make, an endorsement on the
Global Warrant to reflect an increase in the number of
Warrants represented by the Global Warrant,
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then the Warrant Agent shall cancel such Definitive Warrant and cause, or
direct the Depositary to 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 increased
accordingly. If no Global Warrants are then outstanding, the Company shall
issue and the Warrant Agent shall countersign a new Global Warrant representing
the appropriate number of Warrants.
(e) Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agreement (other than the
provisions set forth in subsection (f) of this Section 7), a Global Warrant may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Countersigning of Definitive Warrants in Absence of
Depositary. If at any time:
(i) the Depositary for the Global Warrants notifies the Company
that the Depositary is unwilling or unable to continue as
Depositary for the Global Warrants and a successor Depositary
for the Global Warrants is not appointed by the Company
within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Warrant
Agent in writing that it elects to cause the issuance of
Definitive Warrants under this Warrant Agreement,
then the Company shall execute, and the Warrant Agent, upon written
instructions signed by two officers of the Company, shall countersign and
deliver Definitive Warrants, in an aggregate number equal to the number of
Warrants represented by Global Warrants, in exchange for such Global Warrants.
(g) Legends.
(i) Except for any Warrant that does not constitute a Registrable
Security (including any Warrant represented by a Global
Warrant) as discussed in clause (ii) below, each Warrant
Certificate evidencing the Global Warrants and the Definitive
Warrants (and all Warrants issued in exchange therefor or
substitution thereof) shall bear a legend in substantially
the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, REGISTRATION.
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THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO (A) OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (5) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "IAI"), THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE WARRANT AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE WARRANT AGENT), AND, IN THE CASE OF
ANY TRANSFER TO ANY IAI OF SECURITIES ENTITLING THE
HOLDER TO PURCHASE 656.6 OR FEWER SHARES OF COMMON STOCK,
AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS OR (6)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (AND
BASED ON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT
IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(ii) Upon any sale or transfer of a Warrant pursuant to an
effective registration statement under the Securities Act,
pursuant to Rule 144 under the Securities Act or pursuant to
an opinion of counsel reasonably satisfactory to the Company
that no legend is required, the Warrant Agent shall permit
the Holder thereof to exchange such Warrant for a Warrant
Certificate that does not bear the legend set forth in clause
(i) above and rescind any restriction on the transfer of such
Warrant, provided that if such certificate evidences both
Warrants that are Registrable Securities and Warrants that
are not Registrable Securities, the Warrant Agent shall issue
two Warrant Certificates. One Warrant Certificate shall
represent the Warrants that are Registrable Securities and
shall bear the legend set forth in clause (i) above and the
other Warrant Certificate shall represent
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the Warrants that are not Registrable Securities and shall
not bear the legend set forth in clause (i) above.
(h) Cancellation of Global Warrant. At such time as all
beneficial interests in Global Warrants have either been exchanged for
Definitive Warrants, redeemed, repurchased or canceled, all Global Warrants
shall be returned to or retained and canceled by the Warrant Agent.
(i) Obligations with Respect to Transfers and Exchanges of
Warrants.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Warrant Agent is hereby
authorized to countersign, in accordance with the provisions
of Section 6 and this Section 7, Definitive Warrants and
Global Warrants as required pursuant to the provisions of
this Section 7.
(ii) All Definitive Warrants and Global Warrants issued upon any
registration of transfer or exchange of Definitive Warrants
or Global Warrants shall be the valid obligations of the
Company, entitled to the same benefits under this Warrant
Agreement, as the Definitive Warrants or Global Warrants
surrendered upon such registration of transfer or exchange.
(iii) Prior to due presentment for registration of 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 and neither the Warrant Agent,
nor the Company shall be affected by notice to the contrary.
(iv) No service charge shall be made to a Holder for any
registration, transfer or exchange.
SECTION 8. Terms of Warrants; Exercise of Warrants. Subject
to the terms of this Agreement, each Holder shall have the right, which may be
exercised commencing at the opening of business on the Exercisability Date and
until 5:00 p.m., New York City time on the Expiration Date 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 then in effect for such Warrant Shares; provided,
however, that no Holder shall be entitled to exercise such Holder's Warrants at
any time, unless, at the time of exercise, (i) a registration statement under
the Securities Act relating to the Warrant Shares has been filed with, and
declared effective by, the Commission, and no stop order suspending the
effectiveness of such registration statement has been issued by the Commission
or (ii) the issuance of the Warrant Shares is permitted pursuant to an
exemption from the registration requirements of the Securities Act. Subject to
the provisions of the following paragraph of this Section 8, each Warrant not
exercised prior to 5:00 p.m., New York City time, on 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.
The Company shall give notice not less than 90, and not more
than 120, days prior to the Expiration Date to the Holders of all then
outstanding Warrants to the effect that the Warrants will terminate and become
void as of 5:00 p.m., New York City
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time, on the Expiration Date. If the Company fails to give such notice, the
Warrants will not expire until 90 days after the Company gives such notice,
provided, however, in no event will Holders be entitled to any damages or other
remedy for the Company's failure to give such notice other than any such
extension. In addition, notwithstanding anything to the contrary in this
Agreement, if the Company has not maintained an effective registration
statement under the Securities Act for the issuance of the Warrant Shares
during the 45 days immediately before the Expiration Date, the Warrants shall
not expire until the Company maintains such an effective registration statement
for 45 consecutive days beginning with the first day after 45 days before the
Expiration Date that such registration statement is effective. In the
circumstances described in this paragraph, the extended Expiration Date for the
Warrants shall be considered the Expiration Date for purposes of this
Agreement.
A Warrant may be exercised upon surrender to the Company at
an office of the Warrant Agent of the certificate or certificates evidencing
the Warrant to be exercised with the form of election to purchase on the
reverse thereof duly filled in and signed, which signature shall be guaranteed
by a bank or trust company having an office or correspondent in the United
States or a broker or dealer which is a member of a registered securities
exchange or the National Association of Securities Dealers, Inc., and upon
payment to the Warrant Agent for the account of the Company of the Exercise
Price as adjusted as herein provided, for each of the Warrant Shares in respect
of which such Warrant is then exercised. Payment of the aggregate Exercise
Price shall be made in cash or by certified or official bank check, payable to
the order of the Company. In the alternative, each Holder may exercise its
right to receive Warrant Shares on a net basis, such that without the exchange
of any funds, the Holder receives that number of Warrant Shares otherwise
issuable upon exercise of its Warrants less that number of Warrant Shares
having a fair market value equal to the aggregate Exercise Price that would
otherwise have been paid by the Holder of the Warrant Shares. For purposes of
the foregoing sentence, "fair market value" of the Warrant Shares shall be the
current market price of the Warrant Shares on the date immediately preceding
the date of payment of the Exercise Price as determined by the procedures set
forth in Section 13(e). The exercise of Warrants by Holders of beneficial
interest in Global Warrants shall be effected in accordance with this Agreement
and the procedures of the Depositary therefor. The Warrant Agent shall maintain
in the Borough of Manhattan, the City of New York, an office where Holders may
surrender their Warrants upon exercise.
Subject to the provisions of Section 9 hereof, upon surrender
of Warrants and payment of the Exercise Price as provided above, the Warrant
Agent shall thereupon promptly notify the Company and the Company shall
promptly transfer to the Holder of such Warrant a certificate or certificates
for the appropriate number of Warrant Shares or other securities or property
(including any money) to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, such name or names as may be directed in
writing by the Holder, and shall deliver such certificate or certificates
representing the Warrant Shares and any other securities or property (including
any money) to the person or persons entitled to receive the same, together with
an amount in cash in lieu of any fraction of a share as provided in Section 15.
Any such certificate or certificates representing the Warrant Shares 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.
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The Warrants shall be exercisable commencing on the
Exercisability Date, at the election of the Holders thereof, either in full or
from time to time in part and, in the event that a certificate evidencing
Warrants is exercised in respect of fewer than all of the Warrant Shares
issuable on such exercise at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will
be issued, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrant Certificates pursuant to
the provisions of this Section and of Section 4 hereof, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of
Warrants shall be canceled by the Warrant Agent. Such canceled 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.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder by or from the Company 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 9. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares
upon the exercise of Warrants or to any separation of the Warrants from the
Notes; provided, however, 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 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 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.
SECTION 10. Mutilated or Missing Warrant Certificates. In
case any of the Warrant Certificates shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue and the Warrant Agent may
countersign, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and in substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of
like tenor and representing an equivalent number of Warrants, but only upon
receipt of evidence reasonably satisfactory to the Company and the Warrant
Agent of such loss, theft or destruction of such Warrant Certificate and
indemnity, if requested, also reasonably satisfactory to them. Applicants for
such substitute Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe.
SECTION 11. Reservation of Warrant Shares. 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
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Warrant Shares upon exercise of Warrants, the maximum number of shares of
Common Stock which may then be deliverable upon exercise of all outstanding
Warrants.
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 15. 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 16
hereof.
Before taking any action which would cause an adjustment
pursuant to Section 13 hereof that would 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.
The Company covenants that all Warrant Shares which may be
issued upon exercise of Warrants in accordance with the terms of this Agreement
(including the payment of the Exercise Price) will, upon issue, be duly and
validly issued, fully paid, nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests with respect to the issue
thereof.
SECTION 12. 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 and markets (including,
without limitation, the Nasdaq National Market) within the United States of
America, if any, on which other shares of Common Stock are then listed. Upon
the listing of such Warrant Shares, the Company shall notify the Warrant Agent
in writing. The Company will obtain and keep all required permits and records
in connection with such listing.
SECTION 13. Adjustment of Exercise Price and Number of
Warrant Shares Issuable. The number and kind of shares purchasable upon the
exercise of the Warrants and the Exercise Price shall be subject to adjustment
from time to time as follows:
(a) Stock Splits, Combinations, etc. In case the Company
shall hereafter (A) pay a dividend or make a distribution on its Common Stock
in shares of its capital stock (whether shares of Common Stock or of capital
stock of any other class), (B) subdivide its outstanding shares of Common
Stock, (C) combine its outstanding shares of Common Stock into a smaller number
of shares, or (D) issue by
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reclassification of its shares of Common Stock any shares of capital stock of
the Company, the Exercise Price in effect and the number of Warrant Shares
issuable upon exercise of each Warrant immediately prior to such action shall
be adjusted so that the Holder of any Warrant thereafter exercised shall be
entitled to receive the number of shares of capital stock of the Company which
such Holder would have owned immediately following such action had such Warrant
been exercised immediately prior thereto. An adjustment made pursuant to this
paragraph shall become effective immediately after the record date in the case
of a dividend and shall become effective immediately after the effective date
in the case of a subdivision, combination or reclassification. If, as a result
of an adjustment made pursuant to this paragraph, the Holder of any Warrant
thereafter exercised shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
(whose determination shall be conclusive) shall determine the allocation of the
adjusted Exercise Price between or among shares of such classes of capital
stock.
(b) Reclassification, Combinations, Mergers, etc. In case of
any reclassification or change of outstanding shares of Common Stock issuable
upon exercise of the Warrants (other than as set forth in paragraph (a) above
and 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 in case of any consolidation or merger of the Company with or into another
corporation or entity (other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change of the then outstanding shares of Common Stock or other capital stock
issuable upon exercise of the Warrants), then, as a condition of such
reclassification, change, consolidation, or merger, the Company or such a
successor corporation or entity, as the case may be, shall forthwith make
lawful and adequate provision whereby the Holder of each Warrant then
outstanding shall have the right thereafter to receive on exercise of such
Warrant the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, or
merger, by a holder of the number of shares of Common Stock issuable upon
exercise of such Warrant immediately prior to such reclassification, change,
consolidation, or merger, and enter into a supplemental warrant agreement so
providing. Such provisions shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Section 13. If the issuer of securities deliverable upon exercise of
the Warrants under the supplemental warrant agreement is an affiliate of the
formed or surviving corporation or other entity, that issuer shall join in the
supplemental warrant agreement. The above provisions of this paragraph (b)
shall similarly apply to successive reclassifications and changes of shares of
Common Stock and to successive consolidations, or mergers.
(c) Issuance of Options or Convertible Securities. In the
event the Company shall, at any time or from time to time after the date
hereof, issue, sell, distribute or otherwise grant in any manner (including by
assumption) to all holders of the Common Stock any rights to subscribe for or
to purchase, or any warrants or options for the purchase of, Common Stock or
any stock or securities convertible into or exchangeable for Common Stock (any
such rights, warrants or options being herein called "Options" and any such
convertible or exchangeable stock or securities being herein called
"Convertible Securities"), whether or not such Options or the rights to convert
or exchange such Convertible Securities are immediately exercisable, and the
price per share at which Common Stock is issuable upon the exercise of such
Options or upon the conversion or exchange of such Convertible Securities
(determined by
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dividing (i) the aggregate amount, if any, received or receivable by the
Company as consideration for the issuance, sale, distribution or granting of
such Options or any such Convertible Security, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
exercise of all such Options or upon conversion or exchange of all such
Convertible Securities, plus, in the case of Options to acquire Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the conversion or exchange of all such Convertible Securities, by
(ii) the total maximum number of shares of Common Stock issuable upon the
exercise of all such Options or upon the conversion or exchange of all such
Convertible Securities or upon the conversion or exchange of all Convertible
Securities issuable upon the exercise of all such Options) shall be less than
the current market price per share of Common Stock on the record date for the
issuance, sale, distribution or granting of such Options or Convertible
Securities (any such event being herein called a "Distribution"), then,
effective upon such Distribution, (I) the Exercise Price shall be reduced to
the price (calculated to the nearest 1/1,000 of one cent) determined by
multiplying the Exercise Price in effect immediately prior to such Distribution
by a fraction, the numerator of which shall be the sum of (i) the number of
shares of Common Stock outstanding (exclusive of any treasury shares)
immediately prior to such Distribution multiplied by the current market price
per share of Common Stock on the date of such Distribution plus (ii) the
consideration, if any, received by the Company upon such Distribution, and the
denominator of which shall be the product of (A) the total number of shares of
Common Stock outstanding (exclusive of any treasury shares) immediately after
such Distribution multiplied by (B) the current market price per share of
Common Stock on the record date for such Distribution and (II) the number of
shares of Common Stock purchasable upon the exercise of each Warrant shall be
increased to a number determined by multiplying the number of shares of Common
Stock so purchasable immediately prior to the record date for such Distribution
by a fraction, the numerator of which shall be the Exercise Price in effect
immediately prior to the adjustment required by clause (I) of this sentence and
the denominator of which shall be the Exercise Price in effect immediately
after such adjustment. For purposes of the foregoing, the total maximum number
of shares of Common Stock issuable upon exercise of all such Options or upon
conversion or exchange of all such Convertible Securities or upon the
conversion or exchange of the total maximum amount of the Convertible
Securities issuable upon the exercise of all such Options shall be deemed to
have been issued as of the date of such Distribution and thereafter shall be
deemed to be outstanding and the Company shall be deemed to have received as
consideration therefor such price per share, determined as provided above.
Except as provided in paragraphs (j) and (k) below, no additional adjustment of
the Exercise Price shall be made upon the actual exercise of such Options or
upon conversion or exchange of the Convertible Securities or upon the
conversion or exchange of the Convertible Securities issuable upon the exercise
of such Options.
(d) Dividends and Distributions. In the event the Company
shall, at any time or from time to time after the date hereof, distribute to
all the holders of Common Stock any dividend or other distribution of cash,
evidences of its indebtedness, other securities or other properties or assets
(in each case other than (i) dividends payable in Common Stock, Options or
Convertible Securities and (ii) any cash dividend that, when added to all other
cash dividends paid in the one year prior to the declaration date of such
dividend (excluding any such other dividend included in a previous adjustment
of the Exercise Price pursuant to this paragraph (d) and excluding cash
dividends or other cash distributions from current or retained earnings), does
not
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exceed 5% of the current market price per share of Common Stock on such
declaration date), or any options, warrants or other rights to subscribe for or
purchase any of the foregoing, then (A) the Exercise Price shall be decreased
to a price determined by multiplying the Exercise Price then in effect by a
fraction, the numerator of which shall be the current market price per share of
Common Stock on the record date for such distribution less the sum of (X) the
cash portion, if any, of such distribution per share of Common Stock
outstanding (exclusive of any treasury shares) on the record date for such
distribution plus (Y) the then fair market value (as determined in good faith
by the Board of Directors of the Company) per share of Common Stock outstanding
(exclusive of any treasury shares) on the record date for such distribution of
that portion, if any, of such distribution consisting of evidences of
indebtedness, other securities, properties, assets, options, warrants or
subscription of purchase rights, and the denominator of which shall be such
current market price per share of Common Stock and (B) the number of shares of
Common Stock purchasable upon the exercise of each Warrant shall be increased
to a number determined by multiplying the number of shares of Common Stock so
purchasable immediately prior to the record date for such distribution by a
fraction, the numerator of which shall be the Exercise Price in effect
immediately prior to the adjustment required by clause (A) of this sentence and
the denominator of which shall be the Exercise Price in effect immediately
after such adjustment. The adjustments required by this paragraph (d) shall be
made whenever any such distribution occurs retroactive to the record date for
the determination of stockholders entitled to receive such distribution.
(e) Current Market Price. For the purpose of any computation
of current market price under this Section 13 and Section 15, the current
market price per share of Common Stock at any date shall be (x) for purposes of
Section 15, the closing price on the business day immediately prior to the
exercise of the applicable Warrant pursuant to Section 8 and (y) in all other
cases, the average of the daily closing prices for the shorter of (i) the 20
consecutive trading days ending on the last full trading day on the exchange or
market specified in the second succeeding sentence prior to the Time of
Determination (as defined below) and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance, sale,
distribution or granting in question through such last full trading day prior
to the Time of Determination. The term "Time of Determination" as used herein
shall be the time and date of the earlier to occur of (A) the date as of which
the current market price is to be computed and (B) the last full trading day on
such exchange or market before the commencement of "ex-dividend" trading in the
Common Stock relating to the event giving rise to the adjustment required by
paragraph (a), (b), (c) or (d). The closing price for any day shall be the last
reported sale price regular way or, in case no such reported sale takes place
on such day, the average of the closing bid and asked prices regular way for
such day, in each case (1) on the principal national securities exchange on
which the shares of Common Stock are listed or to which such shares are
admitted to trading or (2) if the Common Stock is not listed or admitted to
trading on a national securities exchange, in the over-the-counter market as
reported by Nasdaq National Market or any comparable system or (3) if the
Common Stock is not listed on Nasdaq National Market or a comparable system, as
furnished by two members of the NASD selected from time to time in good faith
by the Board of Directors of the Company for that purpose. In the absence of
all of the foregoing, or if for any reason the current market price per share
cannot be determined pursuant to the foregoing provisions of this paragraph
(e), the current market price per share shall be the fair market value thereof
as determined in good faith by the Board of Directors of the Company.
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(f) Certain Distributions. If the Company shall pay a
dividend or make any other distribution payable in Options or Convertible
Securities, then, for purposes of paragraph (c) above, such Options or
Convertible Securities shall be deemed to have been issued or sold without
consideration.
(g) Consideration Received. If any shares of Common Stock,
Options or Convertible Securities shall be issued, sold or distributed for a
consideration other than cash, the amount of the consideration other than cash
received by the Company in respect thereof shall be deemed to be the then fair
market value of such consideration (as determined in good faith by the Board of
Directors of the Company). If any Options shall be issued in connection with
the issuance and sale of other securities of the Company, together comprising
one integral transaction in which no specific consideration is allocated to
such Options by the parties thereto, such Options shall be deemed to have been
issued without consideration; provided, however, that if such Options have an
exercise price equal to or greater than the current market price of the Common
Stock on the date of issuance of such Options, then such Options shall be
deemed to have been issued for consideration equal to such exercise price.
(h) Deferral of Certain Adjustments. No adjustment to the
Exercise Price (including the related adjustment to the number of shares of
Common Stock purchasable upon the exercise of each Warrant) shall be required
hereunder unless such adjustment, together with other adjustments carried
forward as provided below, would result in an increase or decrease of at least
one percent of the Exercise Price; provided that any adjustments which by
reason of this paragraph (h) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. No adjustment need
to be made for a change in the par value of the Common Stock. All calculations
under this Section shall be made to the nearest 1/1,000 of one cent or to the
nearest 1/1000 of a share, as the case may be.
(i) Changes in Options and Convertible Securities. If the
exercise price provided for in any Options referred to in paragraph (c) above,
the additional consideration, if any, payable upon the conversion or exchange
of any Convertible Securities referred to in paragraph (c) above, or the rate
at which any Convertible Securities referred to in paragraph (c) above are
convertible into or exchangeable for Common Stock shall change at any time
(other than under or by reason of provisions designed to protect against
dilution upon an event which results in a related adjustment pursuant to this
Section 13), the Exercise Price then in effect and the number of shares of
Common Stock purchasable upon the exercise of each Warrant shall forthwith be
readjusted (effective only with respect to any exercise of any Warrant after
such readjustment) to the Exercise Price and number of shares of Common Stock
so purchasable that would then be in effect had the adjustment made upon the
issuance, sale, distribution or granting of such Options or Convertible
Securities been made based upon such changed purchase price, additional
consideration or conversion rate, as the case may be, but only with respect to
such Options and Convertible Securities as then remain outstanding.
(j) Expiration of Options and Convertible Securities. If, at
any time after any adjustment to the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall have been made pursuant to
paragraph (c) or (i) above or this paragraph (j), any Options or Convertible
Securities shall have expired unexercised, the number of such shares so
purchasable shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been
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originally adjusted (or had the original adjustment not been required, as the
case may be) as if (i) the only shares of Common Stock deemed to have been
issued in connection with such Options or Convertible Securities were the
shares of Common Stock, if any, actually issued or sold upon the exercise of
such Options or Convertible Securities and (ii) such shares of Common Stock, if
any, were issued or sold for the consideration actually received by the Company
upon such exercise plus the aggregate consideration, if any, actually received
by the Company for the issuance, sale, distribution or granting of all such
Options or Convertible Securities, whether or not exercised; provided that no
such readjustment shall have the effect of decreasing the number of such shares
so purchasable by an amount (calculated by adjusting such decrease to account
for all other adjustments made pursuant to this Section 13 following the date
of the original adjustment referred to above) in excess of the amount of the
adjustment initially made in respect of the issuance, sale, distribution or
granting of such Options or Convertible Securities.
(k) Other Adjustments. In the event that at any time, as a
result of an adjustment made pursuant to this Section 13, the Holders shall
become entitled to receive any securities of the Company other than shares of
Common Stock, thereafter the number of such other securities so receivable upon
exercise of the Warrants and the Exercise Price applicable to such exercise
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the shares
of Common Stock contained in this Section 13.
SECTION 14. Statement on Warrants. Irrespective of any
adjustment in the number or kind of shares issuable upon the exercise of the
Warrants or the Exercise Price, Warrants theretofore or thereafter issued may
continue to express the same number and kind of shares as are stated in the
Warrants initially issued pursuant to this Agreement.
SECTION 15. Fractional Interest. The Company shall not be
required to issue fractional shares of Common Stock 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 shares of Common Stock
which shall be issuable upon such exercise shall be computed on the basis of
the aggregate number of shares of Common Stock acquirable on exercise of the
Warrants so presented. If any fraction of a share of Common Stock would, except
for the provisions of this Section, be issuable on the exercise of any Warrant
(or specified portion thereof), the Company shall direct the Transfer Agent to
pay an amount in cash calculated by it to equal the then current market price
per share multiplied by such fraction computed to the nearest whole cent. The
Holders, by their acceptance of the Warrant Certificates, expressly waive any
and all rights to receive any fraction of a share of Common Stock or a stock
certificate representing a fraction of a share of Common Stock.
SECTION 16. Notices to Warrant Holders. Upon any adjustment
of the Exercise Price pursuant to Section 13, the Company shall promptly
thereafter (i) cause to be filed with the Warrant Agent a certificate of the
President and Chief Financial Officer of the Company setting forth the Exercise
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, provided that if the Warrant
Agent reasonably
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requests, the Company shall engage 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) to prepare and file such certificate in
lieu of the certificate of the President and Chief Financial Officer, in which
case such certificate shall be conclusive evidence of the matters set forth
therein, and (ii) cause to be given to each of the registered Holders of the
Warrant Certificates at his address appearing on the Warrant register written
notice of such adjustments by first-class mail, postage prepaid. The Warrant
Agent shall be entitled to rely on the above-referenced certificate and shall
be under no duty or responsibility with respect to any such certificate, except
to exhibit the same from time to time to any Holder desiring an inspection
thereof during reasonable business hours. The Warrant Agent shall not at any
time be under any duty or responsibility to any Holder to determine whether any
facts exist that may require any adjustment of the number of shares of Common
Stock or other stock or property issuable on exercise of the Warrants or the
Exercise Price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed in making such adjustment or
the validity or value (or the kind or amount) of any shares of Common Stock or
other stock or property which may be issuable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other common stock or property upon the exercise of any
Warrant.
In case:
(a) 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, or
(b) the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets (other than cash dividends or cash distributions payable out of
consolidated earnings or earned surplus or dividends payable in shares
of Common Stock or distributions referred to in Section 13 hereof); or
(c) 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, or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) a Change of Control (as defined in the Indenture) occurs;
or
(f) the Company proposes to take any other action that would
require an adjustment of the Exercise Price or the number of Warrant
Shares pursuant to Section 13;
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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 the Warrant Certificates at
such Holder's address appearing on the Warrant register, at least 20 days (or
10 days in any case specified in clauses (a) or (b) 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 (i) the date as of which the holders of record of shares
of Common Stock entitled to receive any such rights, options, warrants or
distribution is to be determined, or (ii) the initial expiration date set forth
in any tender offer or exchange offer for shares of Common Stock, or (iii) the
date on which any such consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up or Change of Control 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 or Change of Control. The failure to give the notice
required by this Section 16 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 Change of
Control or the vote upon any action, provided that the Holders shall retain any
right to damages from the Company with respect to such failure. Nothing
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the Holders thereof 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 17. Merger, Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any
corporation 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 corporation would be eligible for appointment as a successor warrant
agent under the provisions of Section 19. Any such successor Warrant Agent
shall promptly cause notice of its succession as Warrant Agent to be mailed (by
first class mail, postage prepaid) to each Holder at such Holder's last address
as shown on the register maintained by the Warrant Agent pursuant this
Agreement. In case at the time such successor to the Warrant Agent shall
succeed to the agency created by this Agreement, and in case at that time any
of the Warrant Certificates shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and in case at 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 in the Warrant Certificates and in this Agreement.
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
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cases such Warrant Certificates shall have the full force and effect provided
in the Warrant Certificates and in this Agreement.
SECTION 18. 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 liability or
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,
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 for all services rendered by the Warrant Agent in the performance
of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature reasonably
incurred by the Warrant Agent in the performance of this Agreement and to
indemnify the Warrant Agent and defend and save it harmless against any and all
liabilities, including judgments, reasonable costs and counsel fees, for
anything done or omitted by the Warrant Agent in the performance of this
Agreement except as a result of its negligence or bad faith.
(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 Holders of Warrant
Certificates 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 and 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
21
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ratable benefit of the 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 legal
entity.
(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.
SECTION 19. Resignation and Removal of Warrant Agent:
Appointment of Successor. No resignation or removal of the Warrant Agent and no
appointment of a successor warrant agent shall become effective until the
acceptance of appointment by the successor warrant agent as provided herein The
Warrant Agent may resign its duties and be discharged from all further duties
and liability hereunder (except liability arising as a result of the Warrant
Agent's own negligence of willful misconduct) after giving written notice to
the Company. The Company may remove the Warrant Agent upon written notice, and
the Warrant Agent shall thereupon in like manner be discharged from all further
duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall,
at the Company's expense, cause to be mailed (by first class mail, postage
prepaid) to each Holder of a Warrant at his last address as shown on the
register of the Company maintained by the Warrant Agent a copy of said notice
of resignation or notice of removal, as the case may be. Upon such resignation
or removal, the Company shall appoint in writing a new 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 resignation by the resigning Warrant Agent
or after such removal, then the resigning Warrant Agent or the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. Any new warrant agent, whether appointed by the Company or
by such court, shall be a corporation doing business under the laws of the
United States or any state thereof, in good standing and having a combined
capital and surplus of not less than $50,000,000. The combined capital and
surplus of any such new warrant agent shall be deemed to be the
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26
combined capital and surplus as set forth in the most recent annual report of
its condition published by such warrant agent prior to its appointment,
provided that such reports are published at least annually pursuant to law or
to the requirements of a federal or state supervising or examining authority.
After acceptance in writing of such appointment by the new warrant agent, it
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall be necessary
or expedient to execute and deliver any further assurance, conveyance, act or
deed, the same shall be done at the expense of the Company and shall be legally
and validly executed and delivered by the resigning or removed Warrant Agent.
Not later than the effective date of any such appointment, the Company shall
give notice thereof to the resigning or removed Warrant Agent. Failure to give
any notice provided for in this Section, however, or any defect therein, shall
not affect the legality or validity of the resignation of the Warrant Agent or
the appointment of a new warrant agent, as the case may be.
SECTION 20. Registration. The Company and the Warrant Agent
acknowledge that Holders shall have the registration rights set forth in the
Warrant Registration Rights Agreement.
SECTION 21. Reports.
(a) So long as any of the Warrants remain outstanding, the
Company shall cause copies of all quarterly and annual financial reports and of
the information, documents, and other reports (or copies of such portions of
any of the foregoing as the Commission may by rules and regulations prescribe)
which the Company is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act ("SEC Reports") to be filed with the Warrant
Agent and mailed to the Holders at their addresses appearing in the register of
the Holders maintained by the Warrant Agent, in each case, within 15 days of
filing with the Commission. If the Company is not subject to the requirements
of Section 13 or 15(d) of the Exchange Act, the Company shall nevertheless
continue to cause SEC Reports, comparable to those which it would be required
to file pursuant to Section 13 or 15(d) of the Exchange Act if it were subject
to the requirements of either such Section, to be so filed with the Commission
(but only if the Commission permits such filings) and with the Warrant Agent
and mailed to the Holders, in each case, within the same time periods as would
have applied (including under the preceding sentence) had the Company been
subject to the requirements of Section 13 or 15(d) of the Exchange Act.
(b) The Company shall provide the Warrant Agent with a
sufficient number of copies of all SEC Reports to enable the Warrant Agent to
deliver to each Holder at least one copy and to each nominee Holder at least
one copy for each beneficial holder for whom such nominee Holder holds
Warrants.
SECTION 22. Rule 144A. The Company hereby agrees with each
Holder, for so long as any Warrants that constitute Registrable Securities
remain outstanding, to make available, upon request of any Holder, to any
Holder or beneficial owner of such Warrants in connection with any sale thereof
and any prospective purchaser of such Warrants designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Warrants pursuant to Rule
144A.
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SECTION 23. 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 any Holder to or on the Company shall be sufficiently given or made when
and 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:
HighwayMaster Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
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 Holders 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:
Texas Commerce Bank National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
SECTION 24. Supplement and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any Holders 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 Company and the
Warrant Agent may deem necessary or desirable and which shall not in any way
adversely affect the interests of the Holders. Any amendment or supplement to
this Agreement that has a material adverse effect on the interests of the
Holders shall require the written consent of the Holders representing a
majority of the then outstanding Warrants. The consent of each Holder 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 the
Warrants would be decreased (other than pursuant to adjustments provided for in
Section 13 hereof). The Warrant Agent shall be entitled to receive and, subject
to Section 18, shall be fully protected in relying upon, an officers'
certificate and opinion of counsel as conclusive evidence that any such
amendment or supplement is authorized or permitted hereunder, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company
in accordance with its terms.
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SECTION 25. 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.
SECTION 26. Termination.This Agreement (other than any
party's obligations with respect to Warrants previously exercised and with
respect to indemnification under Section 18) shall terminate at 5:00 p.m., New
York City time on the Expiration Date.
SECTION 27. 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 28. Benefits of This Agreement.
(a) Nothing in this Agreement shall be construed to give to
any Person or corporation other than the Company, the Warrant Agent and the
Holders 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 Holders.
(b) Prior to the exercise of the Warrants, no Holder, as
such, shall be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to receive dividends or subscription
rights, the right to vote, to consent, to exercise any preemptive right, to
receive any notice of meetings of stockholders for the election of directors of
the Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for herein. Until exercise
of their Warrants, the Holders are not entitled to share in the assets of the
Company in the event of the liquidation, dissolution or winding up of the
Company's affairs.
(c) All rights of action in respect of this Agreement are
vested in the Holders, and any Holder, without the consent of the Warrant Agent
or any other Holder, may, on such Holder's own behalf and for such Holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such
Holder's rights hereunder, including the right to exercise, exchange or
surrender for purchase such Holder's Warrants in the manner provided in this
Agreement.
SECTION 29. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
HIGHWAYMASTER COMMUNICATIONS, INC.
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
and Chief Financial Officer
----------------------------------
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
26
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face]
EXERCISABLE ON OR AFTER THE EXERCISABILITY DATE (AS DEFINED HEREIN).
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE NOT TRANSFERABLE SEPARATELY FROM
THE NOTES ORIGINALLY SOLD AS A UNIT WITH SUCH WARRANTS UNTIL THE EARLIER TO
OCCUR OF (i) 180 DAYS AFTER THE ISSUANCE OF THE UNITS, (ii) SUCH DATE AS BEAR,
▇▇▇▇▇▇▇ & CO. INC. AND ▇▇▇▇▇ ▇▇▇▇▇▇ INC. MAY, IN THEIR DISCRETION, DEEM
APPROPRIATE, (iii) IN THE EVENT A CHANGE OF CONTROL (AS DEFINED IN THE
INDENTURE RELATING TO THE NOTES) OCCURS, THE DATE THE COMPANY MAILS NOTICE
THEREOF TO HOLDERS OF THE NOTES, (iv) THE COMMENCEMENT OF THE EXCHANGE OFFER
(AS DEFINED IN THE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT RELATING TO THE
NOTES), AND (v) THE EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT RELATING
TO THE NOTES PURSUANT TO THE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT.
No. Warrants
---------- --------
WARRANT CERTIFICATE
HIGHWAYMASTER COMMUNICATIONS, INC.
This Warrant Certificate certifies that ____________________, or its
registered assigns, is the registered holder of Warrants expiring September 15,
2005 (the "Warrants") to purchase Common Stock, par value $.01 per share (the
"Common Stock"), of HighwayMaster Communications, Inc., a Delaware corporation
(the "Company"). Each Warrant entitles the registered holder upon exercise at
any time from 9:00 a.m. on or after the earlier to occur of (i) September 23,
1998 and (ii) in the event a Change of Control (as defined in the Indenture
relating to the Notes) occurs, the date the Company mails the notice thereof to
the registered holders of the Notes and the registered holders of the Warrants
(the "Exercisability Date") until 5:00 p.m. New York City Time on September 15,
2005, to receive from the Company 6.566 fully paid and nonassessable shares of
Common Stock (the "Warrant Shares") at the initial exercise price (the
"Exercise Price") of $9 5/8 per share payable in lawful money of the United
States of America upon surrender of this Warrant Certificate and payment of the
Exercise Price at an 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 side 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 before the Exercisability Date. No Warrant
may be exercised after 5:00 p.m., New York City Time on September 15, 2005, 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 side 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.
A-1
31
This Warrant Certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, HighwayMaster Communications, Inc. has caused this
Warrant Certificate to be signed by its President and by its Secretary, each by
a signature or a facsimile thereof, and has caused a facsimile of its corporate
seal to be affixed hereunto or imprinted hereon.
Dated:
--------------
HIGHWAYMASTER COMMUNICATIONS, INC.
[SEAL]
By:
-------------------------------------
Name:
-----------------------------------
Title: President
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title: Secretary
----------------------------------
Countersigned:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Warrant Agent
By:
---------------------------------
Authorized Signature
A-2
32
[Reverse Side]
Unless and until it is exchanged in whole or in part for Warrants in
definitive form, this Warrant may not be transferred except as a whole by the
depositary to a nominee of the depositary or by a nominee of the depositary to
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary. The Depository Trust Company ("DTC"), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, shall act as the depositary until a successor shall be appointed by
the Company and the Warrant Agent. Unless this certificate is presented by an
authorized representative of DTC to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.(1)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTERST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE WARRANT AGENT A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE WARRANT AGENT) AND, IN THE CASE
OF ANY TRANSFER TO ANY IAI OF SECURITIES ENTITLING THE HOLDER TO PURCHASE 656.6
OR FEWER SHARES OF COMMON STOCK, AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS OR (6) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT (AND BASED ON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY AND
------------------
(1) This paragraph is to be included only if the Warrant is in global form.
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring September 15, 2005, entitling the holder
on exercise to receive shares of Common Stock, par value $.01 per share, of the
Company (the "Common Stock"), and are issued or to be issued pursuant to a
Warrant Agreement, dated as of September 23, 1997 (the "Warrant Agreement"),
duly executed and delivered by the Company to Texas Commerce Bank, National
Association, as warrant agent (the "Warrant Agent"), which Warrant Agreement is
hereby incorporated by reference herein 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 Warrant. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Company. Capitalized
terms used herein without definition shall have the meanings ascribed to them
in the Warrant Agreement.
Warrants may be exercised at any time from 9:00 a.m. on or after the
Exercisability Date and until 5:00 p.m., New York City Time on September 15,
2005. The holder of Warrants evidenced by this Warrant Certificate may exercise
them by surrendering this Warrant Certificate, with the form of election to
purchase set forth hereon properly completed and executed, together with
payment of the Exercise Price in lawful money of the United States of America
at the office of the Warrant Agent. In the alternative, each holder may
exercise its right to receive Warrant Shares on a net basis, such that without
the exchange of any funds, the holder receives that number of Warrant Shares
otherwise issuable upon exercise of its Warrant less that number of Warrant
Shares having a fair market value equal to the aggregate Exercise Price that
would otherwise have been paid by the holder of the Warrant Shares. In the
event that upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants evidenced
hereby, there shall be issued to the holder hereof or his assignee a new
Warrant Certificate evidencing the number of Warrants not 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 and/or the number of
shares of Common Stock issuable upon the exercise of each Warrant shall,
subject to certain conditions, 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.
The Warrant Agreement provides that the Company shall be bound by
certain registration obligations with respect to the Common Stock issuable upon
exercise of the Warrants as set forth in the Warrant Registration Rights
Agreement (as defined 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 service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
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34
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 transferees 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
holders hereof as the absolute owners of this Warrant Certificate
(notwithstanding any notation of beneficial ownership or other writing hereon
made by anyone), for the purpose of any exercise hereof, of any distribution to
the holders 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.
[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
Common Stock and herewith makes payment therefor. 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
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35
SCHEDULE A TO WARRANT CERTIFICATE
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL WARRANT(2)
The initial number of Warrants of this Global Warrant shall be _____
Warrants. The following increases or decreases in this Global Warrant have been
made:
Signature of
Number of Authorized
Decrease in Increase in Warrants of This Officer of
Number of Number of Global Warrant Warrant Agent
Date of Warrants of This Warrants of This Following Such or Warrant
Exchange Global Warrant Global Warrant Decrease or Increase Custodian
-------- --------------- --------------- -------------------- --------------
--------------------------
(2) This schedule should be included only if the Warrant is issued in global
form.
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36
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF WARRANTS
Re:______________________ Warrants to Purchase Common Stock (the "Warrants") of
HighwayMaster Communications, Inc. (the "Company")
This Certificate relates to __________ Warrants held in [ ] book-entry
or [ ] definitive form by ________________________ (the "Transferor").
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Warrant Agreement between the Company and the Warrant
Agent.
The Transferor:
[ ] has requested the Warrant Agent by written order to deliver in
exchange for its beneficial interest in the Global Warrants held by the
depositary a Warrant or Warrants in definitive, registered form equal to its
beneficial interest in such Global Warrant (or the portion thereof indicated
above); or
[ ] has requested the Warrant Agent by written order to exchange or
register the transfer of a Warrant or Warrants.
[ ] In connection with such request and in respect of each such Warrant,
the Transferor does hereby certify that the Transferor is familiar with the
Warrant Agreement relating to the above captioned Warrants and that:
[ ] Such Warrant is being acquired for the Transferor's own account
without transfer.
[ ] Such Warrant is being transferred (i) to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act or (ii) pursuant to an effective
registration statement under the Securities Act.
[ ] Such Warrant is being transferred to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the registration
requirements of the Securities Act (and based on an opinion of counsel if the
Company so requests in the case of a transfer of Warrants to purchase 656.6 or
fewer shares).
[ ] Such Warrant is being transferred pursuant to an exemption from
registration in accordance with Rule 904 under the Securities Act, provided
that the Transferor understands that any Warrants issued pursuant to Regulation
S under the Securities Act may only be transferred in accordance with the
provisions of Regulation S.
[ ] Such Warrant is being transferred in reliance on another exemption
from the registration requirements of the Securities Act (and based on an
opinion of counsel if the Company so requests).
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[INSERT NAME OF TRANSFEROR]
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Date:
---------------------
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