Exhibit 4.5
REGULATION S WARRANT CERTIFICATE
THIS SECURITY IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
WARRANT AGREEMENT, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE WARRANT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OF
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OF OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, 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, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECU RITIES ACT ("RULE 144A")) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM IN
REGULATION S.
REGISTERED No.
CUSIP U25540 11 0 1,500 WARRANTS
WARRANT CERTIFICATE
WAM!NET INC.
This Warrant Certificate certifies that CEDE & CO., or registered
assigns, is the registered holder of 1,500 Warrants (the "Warrants") to purchase
shares of Common Stock, par value $0.01 per share (the "Common Stock"), of
WAM!NET INC., a Minnesota corporation (the "Company," which term includes its
successors and assigns). Each Warrant entitles the holder to purchase from the
Company at any time from 9:00 a.m. New York City time on or after the
Exercisability Date until 5:00 p.m., New York City time, on March 1, 2005 (the
"Expiration Date"), 2.01 fully paid, registered and non-assessable shares of
Common Stock, subject to adjustment as provided in Article V of the Warrant
Agreement (the "Exercise Rate"), at the exercise price of $0.01 for each share
purchased (the "Exercise Price") (the shares of Common Stock purchasable upon
exercise of a Warrant being herein referred to as the "Shares" and, unless the
context otherwise requires, such term shall also mean all other securities or
property purchasable and deliverable upon exercise of a Warrant as provided in
the Warrant Agreement), upon surrender of this Warrant
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Certificate and payment of the Exercise Price (i) in United States dollars or by
certified check or official bank check, (ii) pursuant to the next sentence or
(iii) in any combination of (i) and (ii), at any office or agency maintained for
that purpose by the Company (the "Warrant Agent Office"), subject to the
conditions set forth herein and in the Warrant Agreement. In addition to payment
by cash or check, a Warrant may be exercised solely by the surrender of the
Warrant, and without the payment of the Exercise Price in cash, for such number
of Shares equal to the product of (1) the number of Shares for which such
Warrant is exercisable with payment of the Exercise Price as in cash of the date
of exercise and (2) the Cashless Exercise Ratio. For purposes of this Warrant,
the "Cashless Exercise Ratio" shall equal a fraction, the numerator of which is
the excess of the Current Market Value per share of the Common Stock on the date
of exercise over the Exercise Price per share as of the date of exercise and the
denominator of which is the Current Market Value per share of the Common Stock
on the date of exercise. An exercise of a Warrant in accordance with the
immediately preceding sentences is herein called a "Cashless Exercise." Upon
surrender of a Warrant Certificate representing more than one Warrant in
connection with the Holder's option to elect a Cashless Exercise, the number of
Shares deliverable upon a Cashless Exercise shall be equal to the Cashless
Exercise Ratio multiplied by the product of (a) the number of Warrants that the
holder specifies is to be exercised pursuant to a Cashless Exercise and (b) the
aggregate number of Shares for which such Warrants are then exercisable (without
giving effect to the Cashless Exercise option). If the Company has not effected
the registration under the Securities Act of the offer and sale of the Shares by
the Company to the holders of the Warrants upon the exercise thereof, the
Company may elect to require that holders of the Warrants effect the exercise of
the Warrants solely pursuant to the Cashless Exercise option and may also amend
the Warrants to eliminate the requirements for payment of the Exercise Price
with respect tp such Cashless Exercise option. A Warrant may not be exercised in
part. All provisions of the Warrant Agreement shall be applicable with respect
to an exercise of a Warrant Certificate pursuant to a Cashless Exercise for less
than the full number of Warrants represented thereby. Capitalized terms used
herein without being defined herein shall have the definitions ascribed to such
terms in the Warrant Agreement.
This Warrant has initially been issued as part of a unit ("Unit"),
each Unit consisting of three Warrants and $1,000 principal amount at maturity
of the Company's 13 1/4% Senior Discount Notes due 2005 (the "Notes"). As set
forth in the Warrant Agreement and the Indenture, dated as of March 5, 1998 (the
"Indenture"), between the Company and First Trust National Association, as
Trustee, pursuant to which the Notes have been issued, the Warrants and the
Notes will not be separately transferable until the "Separability Date", which
means the earliest to occur of: (i) September 1, 1998, (ii) the occurrence of an
Exercise Event (as defined herein), (iii) the occurrence of an Event of Default
(as defined in the Indenture), (iv) the date on which a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to a registered exchange offer for the Notes or covering the sale by
holders of the Notes is declared effective under the Securities Act, (v)
immediately prior to any redemption of Notes by the Company from the net
proceeds of an Initial Public Equity Offering (as defined in the Indenture),
(vi) immediately prior to the occurrence of a Warrant Change of Control (as
defined in the Warrant Agreement) or (v) such earlier date as determined by
Merrill Lynch & Co. in its sole discretion.
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"Current Market Value" per share of Common Stock or any other
security at any date of determination means (i) if the security is not traded on
a national or regional securities exchange, The Nasdaq Stock Market or in a
recognized over-the-counter market (a "Quoted Security"), (a) the fair market
value of the security, as determined in good faith by the Board of Directors of
the Company and certified in a board resolution delivered to the Warrant Agent,
which shall be based on the most recently completed arms-length transaction
between the Company and a person other than an Affiliate of the Company, the
closing of which shall have occurred within the six-month period preceding such
determination, or (b) if no such transaction shall have occurred within such
six-month period, the fair market value of the security as determined by a
nationally or regionally recognized independent financial expert (provided that,
in the case of the calculation of Current Market Value solely for determining
the cash value of fractional shares, the last determination of Current Market
Value pursuant to this clause (i), if made within the preceding six months, may
be utilized), which determination shall be set forth in an officers' certificate
delivered to the Warrant Agent, or (ii) (a) if the security is a Quoted
Security, the average of the daily closing sales prices of such security for the
20 consecutive trading days immediately preceding such date, or (b) if the
security has been a Quoted Security for less than 20 consecutive trading days
before such date, then the average of the daily closing sales prices for all of
the trading days before such date for which closing sales prices are available.
The closing sales price of a security for each such trading day shall be: (A) in
the case of a security listed or admitted to trading on any United States
national or regional securities exchange or on The Nasdaq Stock Market, the
closing sales price, regular way, on such day, or if no sale takes place on such
day, the average of the closing bid and asked prices on such day or (B) in the
case of a security not then listed or admitted to trading on any national or
regional securities exchange or The Nasdaq Stock Market, the average of the
closing bid and asked prices on such day, as reported by a reputable quotation
source designated by the Company, or in the case of a security as to which no
such reported bid and asked prices are available on such day, the average of the
reported high bid and low asked prices on such day, as reported by a reputable
quotation service, or a newspaper of general circulation in the Borough of
Manhattan, City and State of New York, customarily published on each business
day, designated by the Company, or, if there shall be no bid and asked prices on
such day, the average of the high bid and low asked prices, as so reported, on
the most recent day (not more than two days prior to the date in question) for
which prices have been so reported; provided, however, that if there are no bid
and asked prices reported for such security during such two-day period, Current
Market Value shall be determined as if the security were not a Quoted Security.
"Exercisability Date" means, with respect to each Warrant, the date as
of which both of the following shall have occurred (whether before or on such
date): (i) the Separability Date and (ii) an Exercise Event.
"Exercise Event" means, with respect to each Warrant, the date of the
occurrence of the earliest of: (1) immediately prior to the occurrence of a
Warrant Change of Control, (2 )(a) the 90th day (or such earlier date as
determined by the Company in its sole discretion) following an Initial Public
Equity Offering (as defined in the Warrant Agreement) or (b) upon the closing of
the Initial Public Equity Offering but only in respect of Warrants, if any,
required to be exercised to
4
permit the holders thereof to sell Shares pursuant to their registration rights,
(3) a class of equity securities of the Company is listed on a national
securities exchange or authorized for quotation on The Nasdaq Stock Market or is
otherwise registered under the Exchange Act, or (4) September 1, 2000.
"Independent Financial Expert" means a United States investment
banking firm of national or regional standing in the United States (i) which
does not, and whose directors and executive officers or Affiliates (as defined
in the Warrant Agreement) do not, have a direct or indirect material financial
interest for its or their proprietary account in the Company or any of its
Affiliates and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent with respect to the Company and its Affiliates
and qualified to perform the task for which it is to be engaged.
The Company has initially designated the principal corporate trust
office of the Warrant Agent in the Borough of Manhattan, The City of New York,
as the initial Warrant Agent Office.
Any Warrants not exercised on or prior to 5:00 p.m., New York City
time, on March 1, 2005 shall thereafter be void.
If the Company merges, amalgamates or consolidates with or into, or
sells all or substantially all of its property and assets to, another Person
solely for cash, the holders of Warrants shall be entitled to such cash on the
date of consummation of such transaction on an equal basis with holders of
Shares (or other securities issuable upon exercise of the Warrants) as if the
Warrants had been exercised immediately prior to such event, less the Exercise
Price. Upon receipt of such cash the rights of a holder of a Warrant shall
terminate and cease and such holder's Warrants shall expire.
Reference is hereby made to the further provisions on the reverse
hereof which 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 authenticated by
the Warrant Agent, as such term is used in the Warrant Agreement.
THIS WARRANT CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
5
WITNESS the seal of the Company and signatures of its duly authorized
officers.
Dated:
WAM!NET INC.
By: /s/ Edward J. Driscoll III
-----------------------------------
Name: Edward J. Driscoll III
Title: President and CEO
Attest:
By: /s/ Mark Marlow
----------------------------
Name: Mark Marlow
Title: Vice President and
Finance Director
Certificate of Authentication:
This is one of the Warrants referred to in the within-mentioned Warrant
Agreement:
FIRST TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By: /s/ Kathe Barrett
-----------------------------
Authorized Signatory
6
WAM!NET INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring at 5:00 p.m., New York City time, on the
Expiration Date, each of which represents the right to purchase, at any time on
or after the Exercisability Date and on or prior to the Expiration Date, 2.01
shares of Common Stock, subject to adjustment as set forth in the Warrant
Agreement. The Warrants are issued pursuant to a Warrant Agreement dated as of
March 5, 1998 (as amended from time to time, the "Warrant Agreement"), duly
executed and delivered by the Company to First Trust National Association, as
Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
Warrants may be exercised by (i) surrendering at any Warrant Agent
Office this Warrant Certificate with the form of Election to Exercise set forth
hereon duly completed and executed and (ii) to the extent such exercise is not
being effected through a Cashless Exercise, by paying in full the Exercise Price
for each Warrant exercised and any other amounts required to be paid pursuant to
the Warrant Agreement.
If all of the items referred to in the preceding paragraph are
received by the Warrant Agent at or prior to 11:00 a.m., New York City time, on
a Business Day, the exercise of the Warrant to which such items relate will be
effective on such Business Day. If all items referred to in the preceding
paragraph are not received until after 11:00 a.m., New York City time, on a
Business Day, the exercise of the Warrants to which such items relate will be
deemed to be effective on the next succeeding Business Day. Notwithstanding the
foregoing, in the case of an exercise of Warrants on the Expiration Date, if all
of the items referred to in the preceding paragraph are received by the Warrant
Agent at or prior to 5:00 p.m., New York City time, on the Expiration Date, the
exercise of the Warrant to which such items relate will be effective on the
Expiration Date and prior to the expiration of such Warrant.
As soon as practicable after the exercise of any Warrant or Warrants,
the Company shall issue or cause to be issued to or upon the written order of
the registered holder of this Warrant Certificate, a certificate or certificates
evidencing the Share or Shares to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder pursuant to the form of Election to Exercise, as set forth hereon. Such
certificate or certificates evidencing the Share or Shares shall be deemed to
have been issued and any persons who are designated to be named therein shall be
deemed to have become the holder of record of such Share or Shares as of the
close of business on the date upon which the exercise of this Warrant was deemed
to be effective as provided in the preceding paragraph.
The Company will not be required to issue fractional shares of Common
Stock upon exercise of Warrants or distribute Share certificates that evidence
fractional shares of Common
7
Stock. In lieu of fractional shares of Common Stock, there shall be paid to the
holder of this Warrant Certificate at the time such Warrant Certificate is
exercised an amount in cash equal to the same fraction of the Current Market
Value per share of Common Stock on the Business Day preceding the date this
Warrant Certificate is surrendered for exercise.
Warrant Certificates, when surrendered at any office or agency
maintained by the Company for that purpose by the registered holder thereof in
person or by legal representative or attorney duly authorized in writing, may be
exchanged for a new Warrant Certificate or new Warrant Certificates evidencing
in the aggregate a like number of Warrants, in the manner and subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at any office or agency maintained by the Company for that purpose,
a new Warrant Certificate evidencing in the aggregate a like number of Warrants
shall be issued to the transferee in exchange for this Warrant Certificate,
subject to the limitations provided in the Warrant Agreement, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone) for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
The term "Business Day" shall mean any day on which (i) banks in New
York City, (ii) the principal U.S. securities exchange or market, if any, on
which the Common Stock is listed or admitted to trading and (iii) the principal
U.S. securities exchange or market, if any, on which any other securities
underlying the Warrants are listed or admitted to trading are open for business.
The Warrants and the Shares issuable upon exercise thereof are
entitled to the benefits of a registration rights agreement (as amended from
time to time, the "Registration Rights Agreement"), pursuant to which the
holders representing not less than a majority of Registrable Securities (as
defined in the Registration Rights Agreement) have the right under certain
circumstances to require the Company to effect one demand registration of the
Registrable Securities. The Registration Rights Agreement also provides the
holders of Registrable Securities with the right, subject to the conditions and
limitations contained therein, to include the Registrable Securities in certain
registration statements filed by the Company for its account or for the account
of any of its other securityholders. The Registration Rights Agreement further
provides, among other things, that (i) prior to the Triggering Date (as defined
in the Registration Rights Agreement), if WorldCom Inc, a Georgia corporation
("WorldCom") or its Affiliates (as defined in the Registration Rights Agreement)
effect a direct or indirect sale or other disposition of capital stock of the
Company to any proposed purchaser in any transaction or a series of related
transactions resulting in a Warrant Change of Control, the holders of Warrants
and Shares will have the right to sell all of such securities to the proposed
purchaser at the same price as received by WorldCom or its Affiliates
8
and (ii) prior to an Initial Public Equity Offering, WorldCom or its Affiliates
may require the holders of Warrants and Shares to sell such securities to any
person to whom WorldCom and such Affiliates sell all of their capital stock in
the Company in a transaction that results in a Warrant Change of Control, at the
same price as that received by WorldCom and such Affiliates.
The Company will furnish to any holder of a Warrant upon written
request and without charge a copy of the Warrant Agreement and the Registration
Rights Agreement. Requests may be made to: WAM!NET Inc., 6100 West 110th
Street, Minneapolis, Minnesota 55438; Attention: Secretary.
9
(ELECTION TO EXERCISE)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise this Warrant
Certificate as to ____ Warrants and to purchase the whole number of Shares
issuable upon exercise thereof and herewith tenders payment for such Shares as
follows:
$_________________ in cash or by certified or official bank check; or
by surrender of _____ Warrants pursuant to a Cashless Exercise at the current
Cashless Exercise Ratio.
The undersigned requests that a certificate representing such Shares
be registered in the name of________whose address is____________and that such
Shares be delivered to______________whose address is_________________________.
Any cash payments to be paid in lieu of a fractional Share should
be made to__________whose address is________and the check representing payment
thereof should be delivered to____________whose address is_____________.
Dated_____________________,____
Name of holder of
Warrant Certificate:____________________________
(Please Print)
Tax Identification or
Social Security Number:_________________________
Address:________________________________________
________________________________________
Signature:______________________________________
Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in
every particular, without alteration or enlargement
or any change whatever and if the certificate
representing the Shares is to be registered in a name
other than that in which this Warrant Certificate is
registered, or if any cash payment to be paid in lieu
of a fractional share is to be made to a person other
than the registered holder of this Warrant
Certificate, the signature of the holder hereof must
be guaranteed.
10
Dated_____________,____
Signature:______________________________________
Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in
every particular, without alteration or enlargement
or any change whatever.
Signature Guaranteed:___________________________
[FORM OF ASSIGNMENT]
For value received___________________hereby sells, assigns and
transfers unto__________________the within Warrant Certificate, together with
all right, title and interest therein, and does hereby irrevocably constitute
and appoint____________attorney, to transfer said Warrant Certificate on the
books of the within-named Company, with full power of substitution in the
premises.
Dated_______________, 199_
Signature:___________________________________________
Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in every
particular, without alteration or enlargement or any change
whatever.
Signature Guaranteed:_________________________________
In connection with any transfer of Warrants represented by this
Warrant Certificate occurring prior to the date which is the earlier of (i) the
date of the declaration by the Securities and Exchange Commission of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of the Warrants (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the Resale Restriction Termination Date, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that:
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[Check One]
---------
[ ] (a) the Warrants are being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
--
[ ] (b) this Warrant Certificate is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in Section 1.08 of the Warrant
Agreement.
If none of the foregoing boxes is checked, the Unit Agent shall not be obligated
to register this Warrant Certificate in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth Section 1.08 of the Warrant Agreement shall have been
satisfied.
_______________________________________________________________________________
Date:__________________ Your signature:______________________________
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing the
Warrants for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ____________________ ______________________________________
NOTICE: To be executed by
an executive officer
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SCHEDULE OF EXCHANGES OF DEFINITIVE AND GLOBAL WARRANTS
-------------------------------------------------------
The following exchanges made in respect of certified Warrants or another
Global Warrant have been made:
Date of Exchange Amount of Decrease in Amount of Increase in Number of Warrants of this Signature of authorized
Number of Warrants Number of Warrants Global Warrant following officer of Warrant Agent
Subject to this Global Subject to this Global such decrease (or increase)
Warrant Warrant
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