Exhibit 4.4
FORM OF CLASS "E" WARRANT CERTIFICATE
REDEEMABLE SERIES "E" WARRANT
WARRANT TO PURCHASE SHARES OF COMMON STOCK
ADVANCED WIRELESS SYSTEMS, INC.
- ---------- ----------
WARRANT NUMBER NUMBER OF WARRANTS
This certifies that, for value received, ------------------------------------
the registered holder hereof its assigns (the "Warrant Holder") is entitled to
purchase from Advanced Wireless Systems, Inc., and Alabama corporation (the
"Company") at any time commencing after June 26, 2000 and for a period of one
year thereafter at the purchase price of $3.00 per share for the first 547
days after issue, and at the purchase price of $3.50 the next 90 days and at a
purchase price of $4.00 for the remaining life of the warrants (the "Warrant
Price"), the number of shares of Common Stock, $.01 par value, of the Company
set forth above.
The Warrant may be exercised in whole or in part on before 5:00
P.M., Mobile, Alabama time, one year from June 26, 2000 by presentation of
this Warrant with the Purchase Form duly executed, and simultaneous payment of
the Warrant price (subject to adjustment) at the principal office of Vista
Transfer, Inc. 221-C East Matilija Street, Ojai, California 93023. Payment
of such price shall be made at the option of the Warrant Holder in cash or by
certified funds.
This Warrant evidences the right to purchase shares of Common Stock
$.01 par value, of the Company and is issued under and in accordance with an
Agreement (the "Agreement"), between the Company and Vista Transfer, Inc., and
is subject to the terms and provisions contained in the Agreement, to all of
which the Warrant Holder of this Warrant by acceptance hereof consents. The
Company may redeem and treat the person whose name this Warrant, or any
Warrants issued pursuant to the terms hereof, appears on its books as the true
and lawful owner hereof or thereof for all purposes, any claims of any other
person to the contrary notwithstanding.
Upon any partial exercise of this Warrant, there shall be signed and
issued to the Warrant Holder hereof, a new Warrant in respect to the Shares as
to which this Warrant shall not have been exercised. This Warrant may be
exchanged at the office of Vista Transfer by surrender of this Warrant,
properly endorsed, for one or more new Warrant to purchase the same aggregate
number of shares represented by the Warrants exchanged. No fractional shares
will be issued hereunder, but th Company shall pay the cash value of any
fraction upon the exercise of one or more Warrants. This Warrant is
transferable at the office of the Transfer Agent (Vista Transfer, Inc.) In
the manner and subject to the limitations set forth in the Agreement.
Dated:
-----------------
- ------------------------ (SEAL) -----------------------
Secretary President
Vista Transfer, Inc. 221-C East Matilja Street, Ojai, CA 93023
Countersigned and Registered-----------------------
Countersigned Transfer Agent - Authorized Signature
1) Term. This warranty may be exercised, as set forth in
Section 3, at any time from June 26, 2000 until 5:00 p.m. PDT
June 26, 2003. (the "Exercise Period") and if this is not a
Business Day (defined as a Saturday, Sunday or any other day
which banks are authorized by law to remain closed), at or before
5:00 p.m. PDT on the next following Business Day.
2) Purchase Price. The purchase price for each share of the
Corporation's common stock purchasable hereunder shall be ($3.00)
per Warrant Share for the first Five Hundred Forty-Seven (547)
days after issue, and at the purchase price of ($3.50) per
Warrant Share the next Ninety (90) days after issue, and at the
purchase price of ($4.00) or the remaining life of the Warrants
(subject to adjustments as provided herein).
3) Exercise of Warrant. This Warrant may be exercised in
whole or in part, but not for less than One Hundred (100) Warrant
Shares (or such lesser number of Warrant Shares as may at the
time of exercise constitute the maximum number exercisable) and
in excess of 100 Warrant Shares in increments of 100 Warrant
Shares. It is exercisable, subject to the satisfaction of
applicable securities laws, at any time during the Exercise
Period by the surrender of the Warrant to the Corporation at its
principal office together with the Form of Exercise included
herein duly completed and executed on behalf of the Holder,
accompanied by payment in full of the amount of the aggregate
Exercise Price of the Warrant Shares in immediately available
funds.
4) Fractional Interest. The Corporation shall not be
required to issue any fractional shares on the exercise of this
Warrant.
5) Warrant Confers No Rights of Shareholder. The Holder
shall not have any rights as a Shareholder of the Corporation
with regard to the Warrant Shares prior to actual exercise
resulting in the purchase of the Warrant Shares.
6) Reservation of Shares. The Corporation agrees at all
times during the Exercise Period to have authorized and reserved,
for the exclusive purpose of issuance and delivery upon exercise
of this Warrant, a sufficient number of shares of its common
stock to provide for the exercise of the rights represented
hereby.
7) Adjustment for Re-Classification of Capital Stock. If
the Corporation at any time during the Exercise Period shall, by
subdivision, combination or re-classification of securities,
change any of the securities to which purchase rights under this
Warranty exist under the same or different number of securities
of any class or classes, this Warrant shall thereafter entitle
the Holder to acquire such number and kind of securities as would
have been issuable as a result of such change with respect to the
Warrant Shares immediately prior to such subdivision,
combination, or re-classification. If shares of the
Corporation's common stock are subdivided into a greater number
of shares of common stock, the purchase price for the Warrant
Shares upon exercise of this Warrant shall be proportionately
reduced and the Warrant Shares shall be proportionately
increases; and conversely, if shares of the Corporation's common
stock are combined into a smaller number of common stock shares,
the price shall be proportionately increased, and the Warrant
Shares shall be proportionately decreased.
8) Loss, Theft, Destruction or Mutilation of Warrant. Upon
receipt by the Corporation of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of any Warrant
or stock certificate, and in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Corporation of all reasonable expenses
incidental thereto, and upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Corporation will
make and deliver a new Warrant or stock certificate of like tenor
and dated as of such cancellation, in lieu of this Warrant or
stock certificate.
9) Assignment. With respect to any offer, sale, or other
disposition of this Warrant or any underlying securities, the
Holder will give written notice to the Corporation prior thereto,
describing briefly the manner thereof, together with a written
opinion of such Holder's counsel (if so requested by the
Corporation), to the effect that such offer, sale, or other
distribution may be effected without registration or
qualification (under any applicable federal or state law then in
effect). Each Warrant thus transferred shall bear the same
legends appearing on this Warrant.
10) Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Alabama
applicable to contracts between Alabama residents entered into
and to be performed entirely within the State of Alabama. Venue
for any and all actions or disputes arising out of this Agreement
shall be the State of Alabama.
11) Amendments. Certain terms of this Warrant may be
amended with mutual agreement and written consent of the
Corporation and the Holder.
12) Notices. Unless otherwise provided, any notice required
or permitted under this Warrant shall be given in writing and
shall be deemed effectively given upon personal delivery to the
party to be notified by hand or professional courier service or
five (5) days after deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to
the party to be notified at the address indicated for such party
in the Corporation's records, or at such other address as such
party may designate by ten (10) days advance written notice to
the other parties.
13) Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the
prevailing party shall be entitled to reasonable attorney's fees,
costs and disbursements in addition to any other relief to which
such party may ben entitled.
14) Repurchase Right. The Holder hereby grants the
Corporation the right to repurchase (the "Repurchase Right")
exercisable at any time during the Exercise Period at five (5)
cents per share (the "Repurchase Right"), any Warrant Shares not
exercised and not purchased by Holder ("Repurchase Shares") on or
before the Repurchase Date (defined below).
a) Exercise of the Repurchase Right. The Repurchase Right
shall be exercisable by written notice ("Repurchase Notice")
delivered by the Corporation to the Holder prior to the
expiration of the Exercise Period. The Repurchase Notice shall
indicate the number of Repurchased Shares to be repurchased by
the Corporation and the date ("Repurchase Date") on which the
repurchase is to be effected, such date to be not less than
thirty (30) days after the date of the Repurchase Notice. On the
Repurchase Date, Holder shall deliver and surrender the Warrant
to the Company, and the Company shall, concurrently with the
receipt of the Warrant, pay to Holder in cash or cash
equivalents, an amount equal to the Repurchase Price for the
Repurchased Shares which are to be repurchased by the Company.
b) Purchaser's Right to Exercise Warrant Prior to Repurchase
Date. Notwithstanding delivery of the Repurchase Notice by the
Company to Holder, at any time prior to the Repurchase Date,
Holder may exercise the Warrant with respect to all unexercised
Warrant Shares in accordance with paragraph 3 above.
c) Adjustments. In the event of any adjustment
("Adjustment") pursuant to paragraph 7 above, appropriate
adjustment(s) to reflect the Adjustment shall be made to the
number of Warrant Shares subject to the Repurchase Right and to
the Repurchase Price to be paid by the Corporation upon the
exercise of the Repurchase Right in order to reflect the effect
of any such Adjustment.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto -------- the warrants evidenced by the within
Warrant Certificates, and appoints ------------ to transfer said
Warrant Certificate and Warrants on the books of ------------
with the full power of substitution in the premises.
Warrant Holder:
Date:
Signature Guaranteed:
Date:
FORM OF EXERCISE
The undersigned hereby elects to purchase ------------ shares of
Common Stock of Advanced Wireless Systems, Inc., pursuant to the
terms of the attached Warrant, and tenders herewith payment of
the purchase price for such shares in full.
Issue stock certificate to:
Issue certificate for unexercised Warrants to:
Warrant Holder:
Date:
Signature Guaranteed:
Date: