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Exhibit 4.10
AIRTOUCH COMMUNICATIONS, INC.
AND
______________,
Warrant Agent
------------------------
WARRANT AGREEMENT
------------------------
Providing for the Issuance of
% [Notes/Debentures] Due Purchase Warrants
Dated as of __________ , 19__
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT is entered into as of _______________, 19__
between AirTouch Communications Inc., a corporation incorporated under the laws
of Delaware (the "Company") and ________________________, a _________________
incorporated under the laws of ______________________ (the "Agent"),
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ________ Warrants (as
hereinafter defined), each Warrant entitling the registered owner thereof to
purchase ____% [Notes/Debentures] Due ____ (as hereinafter defined) of the
Company at the price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as herein
provided; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as in this Agreement
provided legal and valid and binding upon the Company with the benefits and
subject to the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration mutually given and received, the receipt and sufficiency whereof
is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise expressly provided or
unless the context otherwise requires, the terms defined in this Section 1.1
shall, for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
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AGENT
The term "Agent" shall mean _____________________________, a
____________ incorporated under the laws of __________________ or its lawful
successors from time to time appointed in accordance with this Agreement.
AGREEMENT
The term "Agreement" shall mean this Warrant Agreement between the
Company and the Agent, as such agreement is originally executed or as it may
from time to time be supplemented, modified or amended as provided herein.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York or ______________ is neither a legal holiday nor a day on which banking
institutions are authorized by law or regulation to close.
COMPANY
The term "Company" shall mean AirTouch Communications, Inc., a Delaware
corporation, until a successor entity shall have become such pursuant to the
applicable provisions of this Agreement and thereafter the term "Company" shall
mean such successor entity.
EVENT OF DEFAULT
The term "Event of Default" shall mean any event specified as such in
Section 6.1 hereof. An Event of Default shall "exist" if an Event of Default
shall have occurred and be continuing.
EXERCISE DATE
The term "Exercise Date" shall mean each date during the Exercise
Period on which [Notes/Debentures] are purchased by a Registered Owner through
the exercise of all or a portion of its Warrants.
EXERCISE FORM
The term "Exercise Form" shall mean the form designated Exercise Form
attached as Annex II to each Warrant.
EXERCISE PERIOD
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The term "Exercise Period" shall mean the period commencing at 9:00
A.M. ( time) on__________________ , 19__ and ending at 4:00 P.M.(_______ time)
on _____________ ,__.
EXERCISE PRICE
The term "Exercise Price" shall have the meaning accorded such term in
Section 2.1 of this Agreement.
INDENTURE
The term "Indenture" shall mean that certain Indenture dated as of
____________, 19__ between the Company and __________, as trustee, as such
Indenture was originally executed or as it may from time to time be
supplemented, modified or amended in accordance with the terms thereof.
[NOTES/DEBENTURES]
The term "[Notes/Debentures]" means any or all, as the case may be, of
the Company's ____% [Notes/Debentures] Due ____, authenticated and delivered as
provided in the Indenture.
NOTICE OF INTENT TO EXERCISE
The term "Notice of Intent to Exercise" shall have the meaning accorded
thereto in Section 4.1 of this Agreement. The form of Notice of Intent to
Exercise is attached as Annex I to each Warrant.
OUTSTANDING
The term "Outstanding" when used with reference to the Warrants shall
mean, as of the date of determination, all Warrants theretofore authenticated
and delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or delivered to
the Agent for cancellation and
(b) Warrants in exchange for or in lieu of which other
Warrants shall have been authenticated and delivered under this
Agreement.
PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
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REGISTER
The term "Register" shall mean the books for the registration and
transfer of Warrants which books are kept by the Agent pursuant to Section 3.1
hereof.
TIME OF EXPIRY
The term "Time of Expiry" means 4:00 p.m., time,
on ______________, 19__.
WARRANTHOLDERS; REGISTERED OWNERS
The term "Warrantholders" or "Registered Owners" means the persons from
time to time who are Registered Owners of the Warrants.
WARRANTHOLDERS' REQUEST
The term "Warrantholders' Request" means an instrument signed in one or
more counterparts by the Warrantholders entitled to purchase in the aggregate
not less than a majority of the aggregate principal amount of [Notes/Debentures]
which could be purchased pursuant to all Warrants then Outstanding requesting
the Agent to take some action or proceeding specified therein.
WARRANTS
The term "Warrants" means the ___% [Notes/Debentures] Due 200__
Purchase Warrants issued hereunder pursuant to which Warrantholders have the
right to purchase [Notes/Debentures] on the terms and conditions herein set
forth.
WRITTEN ORDER OF THE COMPANY
The term "Written Order of the Company" and "Written Consent of the
Company" mean, respectively, a written order or consent signed in the name of
the Company by any one of its officers and may consist of one or more
instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. ISSUANCE AND TERMS OF WARRANTS. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than U.S. $/Specified Currency]__________ in principal amount of the
[Notes/Debentures] is hereby authorized. The Warrants are hereby designated as
the " % [Notes/Debentures] Due Purchase Warrants". The Warrants shall be
delivered by the Company to the Agent to be authenticated by the Agent and
delivered in
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accordance with the Written Order of the Company. The Warrants shall be dated
, 19__ and shall be issuable in fully registered form and
in denominations that permit the purchase upon exercise of [U.S.$/Specified
Currency] __________ principal amount of [Notes/Debentures] and any integral
multiples thereof.
The Warrants shall be exercisable on any Business Day during the
Exercise Period. Each Warrant in the denomination of [U.S.$/Specified Currency]
shall entitle the Registered Owner thereof to exercise such Warrant in
accordance with and pursuant to the terms thereof for the purchase of a
[Note/Debenture] in the principal amount of [U.S.$/Specified Currency] at par
plus interest accrued thereon from_____________,___,_____ to but not including,
the Exercise Date (the "Exercise Price").
SECTION 2.2. FORM OF WARRANTS. The Warrants shall be in substantially
the form set out in this Section 2.2, with such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement. The Warrants may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer executing such Warrants
as evidenced by such officer's execution thereof.
FORM OF WARRANT
Number R-W-____ _____ Warrant(s) Representing Right to Purchase Up to
[U.S.$/Specified Currency] ________ in Aggregate Principal Amount of ___ %
[Notes/Debentures] Due
This Warrant expires at 4:00 P.M. (_________time) on [_____ ,____ ] and
thereafter will be void and of no value. Notice of the holder's intent to
exercise this Warrant must be given to __________________________, as Agent not
later than 4:00 P.M. (_________ time) [______________________, ____ ].
AIRTOUCH COMMUNICATIONS, INC.
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received,____________________ , the
Registered Owner hereof (herein sometimes called the "Warrantholder") is
entitled, upon and subject to the terms and conditions set forth herein and in
the Warrant Agreement (the "Warrant Agreement") dated as of________________ ,___
,___ between AirTouch Communications, Inc. (the "Company") and _____________ as
Agent, (the "Agent"), to purchase at par plus interest accrued thereon, if any,
at any time from 9:00 A.M. (____________ time) [ _______________,____ ] to
4:00 P.M. (__________ time) [ _______________, ____ ], inclusive (each such
date being referred to as a "Exercise Date") up to [U.S.$/Specified Currency]
____________ in aggregate
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principal amount of ___% [Notes/Debentures] Due 0000 (the "[Notes/Debentures]")
of AirTouch Communications, Inc. (the "Company"), by providing written notice to
the Agent of the Warrantholder's intention to exercise its right to purchase
provided for herein specifying the number of Warrants which the Warrantholder
wishes to exercise, such notice to be provided in the notice form annexed hereto
as Annex II not earlier than 9:00 A.M. (__________ time) on [_______________,
____ ] and not later than 4:00 P.M. (__________ Time) [ ______________, ____ ],
and by surrendering to the Agent at its principal office in __________,
__________ on any Exercise Date, this Warrant, with the Exercise Form annexed
hereto as Annex I duly completed and executed. On the Exercise Date on which
this Warrant is exercised, the [Notes/Debentures] will be delivered as described
below against payment therefor in [U.S. Federal Reserve or other United
States/Specified Currency] funds current and immediately available to the Agent
at the account designated in the Warrant Agreement, in each case in an amount
equal to the purchase price of the [Notes/Debentures] so purchased pursuant to
the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued under
the provisions of the Warrant Agreement. Reference is hereby made for
particulars of the rights of the Warrantholders and of the Company in respect
thereof and the terms and conditions upon which the Warrants are issued and
held, all to the sole effect as if the provisions of the Warrant Agreement were
herein set forth, to all of which the Warrantholder by acceptance hereof
assents. The Company will furnish to the Warrantholder, upon written request and
without charge, a copy of the Warrant Agreement. All capitalized terms not
otherwise defined herein, shall have the meanings ascribed thereto in the
Warrant Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this
Warrant will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date. If
[Notes/Debentures] are purchased in an aggregate principal amount which is less
than the total principal amount of the [Notes/Debentures] that can be purchased
pursuant to this Warrant, the Warrantholder hereof will be entitled to receive
without charge a new Warrant in respect of the balance of the principal amounts
of [Notes/Debentures] which the Registered Owner hereof was entitled to purchase
under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as a owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
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This Warrant is registered on the books of the Company and is
transferable only in accordance with the provisions of the Warrant Agreement by
surrender thereof at the principal office of the Agent duly endorsed or
accompanied by a written instrument of transfer duly executed by the Registered
Owner of this Warrant or its attorney duly authorized in writing all in
accordance with the terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed in
accordance with the laws of [California].
IN WITNESS WHEREOF the Company has caused this Warrant to be duly
executed as of__________________ , ____.
AIRTOUCH COMMUNICATIONS, INC.
By
Certificate of Authentication
This is one of the Warrants described
in the within-mentioned Warrant Agreement
_______________________ , as Agent
By
Authorized Officer
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of ______ Warrants evidenced by Warrant
Number (The "Warrant") hereby notifies you pursuant to Section 4.1 of the
Warrant Agreement dated as of ________________, ____ (the "Warrant Agreement")
between AirTouch Communications, Inc. (the "Company") and [________________ /
the undersigned], of the undersigned's intention to exercise _____________ of
such Warrants on _______________________, ____ (the "Exercise Date") to
purchase [U.S.$/Specified Currency] ____________________ in aggregate
principal amount of the Company's ____% [Notes/Debentures] Due
__________________________(the "[Notes/Debentures]") at par plus interest
accrued, if any, from and after [ _______________, ____ ]. The
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purchase price shall be a total of [U.S.$/Specified Currency] ________
representing [U.S.$/Specified Currency] ________________ in principal and
[U.S.$/Specified Currency] _______________ in accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered to
the Agent at its principal office in __________, __________. Payment of the
purchase price of the [Notes/Debentures] shall be made in [U.S. Federal Reserve
or other United States/Specified Currency funds] immediately available at the
principal office of the Agent on the Exercise Date. The undersigned shall direct
such [Notes/Debentures] be registered and delivered in the name(s) and the
amount(s) set forth opposite the undersigned's name on Annex II to the Warrant.
DATED this ________day of______________ ,____.
[NAME OF WARRANTHOLDER]
By
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ___________ Warrants evidenced by the
Warrant attached hereto hereby exercises on _________________, ____ (the
"Exercise Date") Warrants to purchase [U.S.$/Specified Currency]
________________ in aggregate principal amount of AirTouch Communications,
Inc.'s ____% [Notes/Debentures] Due ________________________ (the
"[Notes/Debentures]") at par plus $_______ in accrued interest on the
[Notes/Debentures] from [_______________, ____], and agrees to transfer on the
Exercise Date in [U.S. $/Specified Currency] funds immediately available to the
Agent (at [account]) such purchase price of the [Notes/Debentures] all in
accordance with the terms and conditions of the Warrant Agreement dated as
of_________________ , ____ (the "Warrant Agreement") between AirTouch
Communications, Inc. and [______________________________], as Agent. The
undersigned hereby irrevocably directs that such [Notes/Debentures] be
registered and delivered in accordance with the directions set forth herein.
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The undersigned acknowledges that all taxes or other governmental
charges payable upon the registration and delivery of such [Notes/Debentures]
(other than in connection with each original issue and sale of the
[Notes/Debentures]), including any transfer taxes payable if the
[Notes/Debentures] are to be registered in the name of a person or persons other
than the undersigned Warrantholder, must be paid by the undersigned.
DATED this_________ day of_______________ , ____
[NAME OF WARRANTHOLDER]
By
Please check box if [Notes/Debentures] are to be delivered at the
offices of on the Exercise Date, failing which the [Notes/Debentures]
will be mailed by certified mail return receipt requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
SECTION 2.3. WARRANTS MUTILATED, LOST, DESTROYED OR STOLEN WARRANTS. If
(i) any mutilated Warrant is surrendered to the Agent, or the Company and the
Agent receive evidence to their satisfaction of the destruction, loss or theft
of any Warrant and (ii) there is delivered to the Company and the Agent such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Agent that such Warrant has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrants.
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SECTION 2.4. WARRANTHOLDER NOT A REGISTERED OWNER OF THE
[NOTES/DEBENTURES]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
SECTION 2.5. WARRANTS TO RANK PARI PASSU. All Warrants shall rank pari
passu with each other.
SECTION 2.6. EXECUTION OF WARRANTS. The Warrants shall be signed in the
name and on behalf of the Company by one of its officers. The signature of the
officer executing the Warrants may be manual or facsimile. In case any officer
of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. PURCHASE OF WARRANTS BY THE COMPANY. The Company may
purchase in the market, by private contracts or otherwise all or any portion of
the Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
SECTION 3.1. REGISTER. The Agent, as agent of the Company, shall
maintain, at its principal office in____________ ,________ , the Register in
which, subject to such reasonable regulations as it and the Company may
prescribe, it shall provide for the registration of the Warrants and the
transfer of Warrants as in this Agreement provided. The Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. The Registered Owners of the Warrants shall present
directly to the Agent all requests for (a) registration of transfer of Warrants,
(b) exchange of Warrants for new Warrants in authorized denominations and (c)
replacement of Warrants in the case of mutilation, destruction, loss or theft.
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Upon the Company's request, the Agent shall furnish the Company with a
list of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
SECTION 3.2. EXCHANGE OF WARRANTS. Warrants entitling the Registered
Owner to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/Debentures].
Warrants may be exchanged only at the principal office of the Agent in
__________, __________or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
SECTION 3.3. CHARGES FOR EXCHANGE. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
SECTION 3.4. REGISTRATION OF TRANSFER; RESTRICTIONS ON TRANSFERS. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the __________, __________ or at any other place that is designated by
the Company as an office for registration of transfer by the Registered Owner or
such Registered Owner's executors, administrators or other legal representatives
or attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Agent and upon compliance with such reasonable requirements
as the Agent and the Company may prescribe. Any Warrants tendered for
registration of transfer shall be surrendered to the Agent.
SECTION 3.5. NOTICE TO WARRANTHOLDERS. Unless herein otherwise
expressly provided, any notice to be given hereunder to Warrantholders shall be
deemed to be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determine under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
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EXERCISE OF WARRANTS
SECTION 4.1. METHOD OF EXERCISE OF WARRANTS. The Registered Owner of
any Warrant may exercise the right thereby conferred to purchase
[Notes/Debentures] by surrendering to the Agent on any Business Day during the
Exercise Period at the principal office of the Agent________________,
_____________ , or at any other place or places that may be designated by the
Company:
(a) at least 3 Business Days prior to the exercise of its
Warrants, a completed and executed Notice of Intent to Exercise in the
form thereof set forth in Annex I to each Warrant (a "Notice of Intent
to Exercise");
(b) on the Exercise Date, a duly completed and executed
Exercise Form in the form thereof set forth in Annex II to each
Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds
immediately available to the Company.
The items described in the foregoing clauses (a) and (b) shall be
deemed received when an actual copy or a facsimile thereof is received by the
Agent. Each Warrant shall be deemed to be surrendered only upon personal
delivery thereof to or, if sent by mail or other means of transmission, upon
receipt thereof by, the Agent at the office specified in this Section 4.1. Each
Warrant shall be deemed exercised as of the first Business Day on which all of
the foregoing conditions are satisfied with respect to such Warrant. The first
day on which the Warrants may be exercised is_______________, _____________,
____ . The Company acknowledges that the Registered Owners of the Warrants are
not required under any circumstances to take any other actions in order to
exercise their Warrants.
SECTION 4.2. EFFECT OF EXERCISE OF WARRANTS. Upon surrender and payment
of the Exercise Price by the Registered Owner of any Warrant in accordance with
Section 4.1, the [Notes/Debentures] so purchased shall be deemed to have been
issued and the person or persons to whom such [Notes/Debentures] are to be
issued shall be deemed to have become the Registered Owner or owners of such
[Notes/Debentures] on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of
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[Notes/Debentures] not exceeding the principal amount which the Warrantholder is
entitled to purchase pursuant to the Warrant surrendered.
SECTION 4.3. PARTIAL EXERCISE OF WARRANTS. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase [Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a principal amount of
[Notes/Debentures] less than the principal amount which can be purchased
pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior
to the Time of Expiry shall, in addition, be entitled to receive forthwith a new
Warrant in respect of the balance of the principal amount of [Notes/Debentures]
which such Registered Owner was entitled to purchase pursuant to the surrendered
Warrant and which were not then exercised. The Company shall not be responsible
for any taxes which may be payable in connection with the issuance of such new
Warrant.
SECTION 4.4. EXPIRATION OF WARRANTS. After the Time of Expiry, all
rights under any Warrant in respect of which the right of purchase herein and
therein provided for shall not theretofore have been exercised pursuant to
Section 4.1 shall cease and terminate and such Warrant shall become void and of
no effect and all rights of the Registered Owner thereof under this Warrant
Agreement shall cease and terminate as of such termination; provided that such
Registered Owner's rights under this Warrant Agreement with respect to actions
occurring prior to such termination shall remain in full force. After the Time
of Expiry, each Registered Owner of any Warrants shall return any unexercised
Warrants to the Agent for cancellation in accordance with Section 4.5 of this
Agreement.
SECTION 4.5. CANCELLATION OF SURRENDERED WARRANTS. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of [Notes/Debentures] which could have been purchased pursuant
to each.
SECTION 4.6. ACCOUNTING AND RECORDING. The Agent shall forthwith
account and remit to the Company with respect to Warrants exercised and
immediately forward to the Company (or into an account or accounts of the
Company with the bank or trust company designated by the Company for that
purpose) all monies received by the Agent on the purchase of [Notes/Debentures]
through the exercise of Warrants. All such monies, and any [Notes/Debentures] or
other instruments, from time to time received by the Agent shall be received in
trust for, and shall be segregated and kept apart by the Agent in trust for, the
Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of
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[Notes/Debentures] on exercise, the Exercise Date, the Exercise Price and the
number of [Notes/Debentures] delivered from the [Notes/Debentures] reserved for
that purpose by the Company. The Agent shall provide such particulars in writing
to the Company.
ARTICLE V
COVENANTS
SECTION 5.1. ISSUANCE OF [NOTES/DEBENTURES]. The Company covenants that
so long as any Warrants remain Outstanding it will cause the [Notes/Debentures]
from time to time paid for pursuant to the Warrants in the manner herein
provided to be duly issued and delivered in accordance with the Warrants and the
terms hereof.
SECTION 5.2. CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION, MERGER,
SALE OR TRANSFER. The Company covenants that so long as any of the Warrants are
Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving, resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
SECTION 5.3. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE OF WARRANTS. So long as any of the Warrants shall remain
Outstanding, the Company covenants that it will maintain an office or agency in
_______________, __________________, where the Warrants may be presented for
registration, exchange and transfer as in this Agreement provided, and where
notices and demands to or upon the Company in respect of the Warrants or of this
Agreement may be served, and where the Warrants may be presented for exchange
for [Notes/Debentures] as provided herein.
SECTION 5.4. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF AGENT. The
Company, whenever necessary to avoid or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
16
SECTION 6.1. EVENTS OF DEFAULT. The term "Event of Default" whenever
used herein with respect to any Warrant shall mean any one of the following
events:
(a) Failure by the Company to deliver the [Notes/Debentures]
in exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform
in any material respect any of the covenants or agreements on its part
in the Warrants or in this Agreement specifically contained for the
benefit of the Warrantholders, for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Agent, or to the Company and the Agent by the Registered Owners of not
less than 25% in principal amount of the Warrants at the time
Outstanding under this Agreement a written notice specifying such
failure and stating that such is a "Notice of Default" hereunder.
SECTION 6.2. SUITS BY WARRANTHOLDERS. All or any of the rights
conferred upon the Registered Owner of any Warrant by the terms of such Warrant
and/or this Agreement may be enforced by the Registered Owner of such Warrants
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Agent to proceed in its own name to enforce each and
all of the provisions herein contained for the benefit of the Registered Owners
of the Warrants from time to time Outstanding.
SECTION 6.3. REMEDIES NOT WAIVED; ENFORCEMENT EXPENSE. No delay or
failure on the part of the Registered Owners of Warrants or the Agent to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such Registered Owner's or Agent's, as the case may be, rights, powers
and remedies. The Company agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by a Registered Owner in
enforcing or attempting to enforce its rights thereunder and hereunder following
the occurrence and during the continuance of any Event of Default hereunder,
whether the same shall be enforced by suit or otherwise.
SECTION 6.3. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY AND EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Agreement, or of any Warrant, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
17
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
SECTION 7.1. AMENDMENTS WITHOUT CONSENT OF REGISTERED OWNERS OF
WARRANTS. This Agreement and the terms and conditions of the Warrants may be
amended by the Company and the Agent, without the consent of any Registered
Owner of Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of
the Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the
Company,
(c) to cure any ambiguity or correcting or supplementing any
provision contained herein or in the Warrants which may be defective or
inconsistent with any other provisions contained herein or in the
Warrants,
(d) if deemed appropriate by the Company or required by law,
to evidence the permitted succession of another corporation to the
Company and the assumption by such successor of the covenants and
obligations of the Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or
questions arising under this Agreement or the Warrants which shall not
adversely affect the interests of the Registered Owners of the Warrants
in any material respect.
SECTION 7.2. AMENDMENTS WITH CONSENT OF REGISTERED OWNERS OF WARRANTS.
This Agreement, the terms and conditions of the Warrants and the covenants
contained in either may also be modified or amended by the Company and the Agent
and past
18
defaults thereunder or future compliance therewith by the Company may be waived
either with the written consent of the Registered Owners of not less than a
majority in aggregate principal amount of the [Notes/Debentures] at the time
outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the aggregate principal amount of the [Notes/Debentures] at the
time outstanding are present or represented, of a resolution by the Registered
Owners of not less than 75% in aggregate principal amount of the Outstanding
Warrants present or represented at the meeting; provided that no such
modification, amendment or waiver may, without the consent or affirmative vote
of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver
[Notes/Debentures] in exchange for Warrants pursuant to Section 4.1
hereof or change the Exercise Dates or the Expiry Date with respect to
any Warrant, or change the coin or currency in which any Warrant is
exercisable for [Notes/Debentures] or impair the right to institute
suit for the enforcement of any rights of any Registered Owner of a
Warrant or
(b) Reduce the percentage in principal amount of the
Outstanding Warrants, the consent of which Registered Owners is
required for any modification or amendment to this Agreement or to the
terms and conditions of or covenants contained in this Agreement or in
the Warrants or for any waiver of compliance therewith or
(c) modify any of the provisions of this Section 7.2 except to
provide that certain other provisions of this Agreement or the terms
and conditions of the Warrants cannot be modified, amended or waived
without the consent of the Registered Owner of each Outstanding Warrant
affected thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
SECTION 7.3. BINDING NATURE OF AMENDMENTS; NOTICE. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail as such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification,
19
but such notice shall be given as soon as practicable upon discovering such
failure or upon any impediment to the giving of such notice being overcome.
ARTICLE VIII
MEETINGS
SECTION 8.1. MEETINGS OF REGISTERED OWNERS OF WARRANTS. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or the Warrants to be
made, given or taken by Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of
Warrants for any purpose specified herein to be held at such time and at such
place in __________ or _________________ as the Agent shall determine. Notice of
every meeting of Registered Owners of Warrants, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, by mail to each registered Owner at its address as
it appears on the Register, not less than 21 nor more than [45] days prior to
the date fixed for the meeting. In case at any time the Company or the
Registered Owners of at least 25% in aggregate principal amount of the
Outstanding Warrants shall have requested the Agent to call a meeting of the
Registered Owners of Warrants for any purpose, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Agent shall not have mailed notice of such meeting within 14 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be held
as provided herein, then the Company or the Registered Owners of Warrants in the
amount previously specified, as the case may be, may determine the time and the
place in __________ or for such meeting and may call such meeting for such
purposes by giving notice thereof as provided herein.
To be entitled to vote at any meeting of Registered Owners of Warrants,
a Person shall be a registered Owner of Outstanding Warrants. The Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Warrants shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of the Registered Owners of Warrants, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 5 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 5 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in this Section 8.1 with respect to an original
20
meeting, except that such notice need be given only once not less than 3 days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage of
the principal amount of the Outstanding Warrants which shall constitute a
quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Warrants shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Any meeting of
Registered Owners of Warrants at which a quorum is present may be adjourned from
time to time by a vote as hereinafter provided in this Section 8.1, and the
meeting may be held as so adjourned without further notice. At a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid,
any resolution and all matters shall be effectively passed or decided if passed
or decided by persons entitled to vote the lesser of (a) a majority in aggregate
principal amount of Outstanding Warrants or (b) 75% in aggregate principal
amount of Outstanding Warrants represented and voting at such meeting.
The Agent may make such reasonable regulations as it may deem advisable
for any meeting of Registered Owners of Warrants in regard to proof of the
holding of Warrants and such other matters concerning the conduct of the meeting
as it shall deem appropriate. The Agent shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or Registered Owners of Warrants as provided herein, in
which case the Company or the Registered Owners calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Warrants represented at the meeting. The chairman of the meeting shall have no
right to vote, except as a Holder of Warrants.
SECTION 8.2. RECORD OF MEETINGS. A record, at least in triplicate, of
the proceedings of each meeting of Registered Owners of Warrants shall be
prepared, and one such copy shall be delivered to the Company and the Agent. The
copy delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
SECTION 9.1. APPOINTMENT OF AGENT. The Company hereby appoints , at
present having its principal office in [__________ at _________________,
__________, __________ ] as the Agent in respect of the Warrants, upon the
terms and subject to the conditions set forth in this Agreement.
21
SECTION 9.2. ACCEPTANCE OF APPOINTMENT BY AGENT; LIMITATIONS OF DUTIES
OF AGENT. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed
upon with the Company for all services rendered by it, and the Company
agrees promptly to pay such compensation and to reimburse the Agent for
its reasonable out-of-pocket expenses (including, without limitation,
the reasonable compensation of its counsel) incurred by it in
connection with the services rendered by it hereunder. The Company also
agrees to indemnify the Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with its acting as such Agent
hereunder, including the costs and expenses of defending against any
claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and
does not assume any obligation or relationship of agency or trust for
or with any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may
also be counsel to the Company), and, in the absence of bad faith, the
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered by it in the
good faith reliance upon any Warrant, notice, direction, consent,
certificate, affidavit, statement or other paper or document signed by
the Company reasonably believed by the Agent to be genuine and to have
been signed by the proper persons.
(e) The Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Warrants, with the
same rights that it or they would have if it were not the Agent
hereunder, may engage or be interested in any financial or other
transaction with the Company and may act on, or as depository, trustee
or agent for, any committee or body of Registered Owners of the
Warrants or holders of other obligations of the Company as freely as if
it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except
in the Agent's certificates of authentication) shall be taken as the
statements of the Company, and the Agent assumes no responsibility for
their
22
correctness. The Agent makes no representation as to the validity or
sufficiency of this Agreement or the Warrants, provided that the Agent
shall not be relieved of its duty to authenticate Warrants as
authorized by this Agreement. The Agent shall not be accountable for
the use or application by the Company of the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and
only such duties as are herein and in the Warrants specifically set
forth and no implied duties or obligations shall be read into this
Agreement or the Warrants against the Agent.
(h) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct or that of its
officers or employees.
(i) The Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the
Company and.
SECTION 9.3. AGENT REQUIRED. The Company agrees that, until all
Warrants (i) shall have been delivered to the Agent for cancellation or (ii)
have become null and void because of the passage of the Expiry Date, there shall
at all times be a Agent hereunder which shall be a corporation doing business in
the United States and which alone or with its affiliates has a combined capital
and surplus of at least $[___,000,000.
SECTION 9.4. RESIGNATION AND REMOVAL OF AGENT; APPOINTMENT OF
SUCCESSOR. The Agent may at any time resign by giving written notice (in
accordance with Section 10.1 hereof) to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be less than [90] days
after the receipt of such notice by the Company unless the Company agrees to
accept less notice. Upon receipt of such notice of resignation, the Company
shall promptly act to appoint a successor Agent. The Agent may be removed at any
time by the Company by delivering written notice thereof specifying such removal
and the date when it is intended to become effective. Any resignation or removal
of the Agent shall take effect upon the date of the appointment by the Company
as hereinafter provided of a successor and the acceptance of such appointment by
such successor.
In case at any time the Agent shall resign, or shall be
removed, or shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or if a receiver of it or of its property shall be appointed, or if
any public officer shall take charge or control of it or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor agent, eligible as aforesaid, shall be appointed by the Company. Upon
the appointment as aforesaid of a successor agent and acceptance by it of such
appointment, the Agent so superseded shall cease to be the Agent hereunder. If
no successor Agent shall have been so appointed by the Company and shall have
accepted appointment as hereinafter provided, then the Registered Owners of a
23
majority in aggregate principal amount of the Outstanding Warrants, on such
Holders' behalf and on behalf of all others similarly situated may petition any
court of competent jurisdiction for the appointment of a successor Agent.
Any successor Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as such Agent hereunder, and
such predecessor, upon payment of its charges and disbursements then unpaid,
shall simultaneously therewith become obligated to transfer, deliver and pay
over, and such successor Agent shall be entitled to receive, all moneys,
[Notes/Debentures] or other property on deposit with or held by such
predecessor, as such Agent hereunder. The Company or, at the direction of the
Company, the successor Agent, will give prompt written notice by U.S. Mail to
each Registered Owners of the Warrants at such owners address as it appear on
the Register of the appointment of a successor Agent. Failure to give such
notice or any defect therein shall not affect the appointment of a successor
Agent.
SECTION 9.5. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF AGENT. Any corporation into which the Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Agent shall be a
party, or any corporation succeeding to all or substantially all the assets and
business of the Agent, shall be the successor to the Agent hereunder, provided
such corporation shall be otherwise eligible under this Article VII, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not
delivered, by the Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Agent may adopt such authentication and
deliver the Warrants so authenticated with the same effect as if such successor
Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES. All notices or demands hereunder upon
the Company or the Agent may be electronically communicated or hand delivered or
sent by overnight courier, addressed to any party hereto as provided in this
Section 10.1.
All communications intended for the Company shall be sent to:
24
AirTouch Communications, Inc.
San Francisco, CA
Attention: [Treasurer]
Fax Number: (415) ________
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication
will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a day on which
commercial banks are open for business (a "Local Business Day") in the
city specified in the address for notice provided by the recipient or
(ii) if delivered after the close of business on a Local Business Day,
then on the next succeeding Local Business Day or
(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding
Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
SECTION 10.2. DAY NOT A BUSINESS DAY. If any date on which a payment is
to be made, notice given or other action taken hereunder is not a Business Day,
then such payments, notice or other action shall be made, given or taken on the
next succeeding business
25
day in such place, and in the case of any payment, not interest shall accrue for
the delay.
SECTION 10.3. CURRENCY. All amounts herein are expressed in [United
States Dollars/Specified Currency].
SECTION 10.4. GOVERNING LAW. This Agreement and the Warrants shall be
construed in accordance with the laws of [California].
SECTION 10.4. LIMITATION OF RIGHTS TO PARTIES AND REGISTERED OWNERS OF
WARRANTS. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
SECTION 10.5. SEPARABILITY OF INVALID PROVISIONS. In case any one or
more of the provisions contained in this Agreement or in the Warrants shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 10.6. NO WAIVER OF RIGHTS. A failure or delay in exercising any
right, power or privilege in respect of this Warrant Agreement will no be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to precluded any subsequent or further
exercise of that right power or privilege or the exercise of any other right,
power or privilege.
SECTION 10.7. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 10.8. ARTICLE AND SECTION HEADINGS. The headings or titles of
the several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
SECTION 10.9. SUCCESSORS AND ASSIGNS. All the covenants and agreements
in this Agreement contained by or on behalf of the Company or the Agent shall
bind their respective successors and assigns, whether so expressed or not.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AIRTOUCH COMMUNICATIONS, INC.
By
AGENT-NAME, as Agent
By