Exhibit 4.1
WARRANT AGREEMENT
This Warrant Agreement is made as of the ____ day of ___________, 2000 by
and between Advanced Wireless Systems, Inc. (the "Company"), a corporation
organized and existing under the Code of Alabama, and Vista Transfer, Inc.
("Vista"). All capitalized terms used and not otherwise defined herein shall
have the same meanings as in the Plan (as hereinafter defined).
WHEREAS, pursuant to the terms and conditions of the Debtors' Plan of
Reorganization dated March 7, 2000 (the "Plan"), filed in the Debtor's
bankruptcy proceedings, the Company and Vista agree to issue to creditors,
equity security holders and other parties in interest of the Company,
8,000,000 shares of Common Capital Stock of the Company, and four classes of
warrants: Class C - One Year Warrants, Class D - Eighteen Month Warrants,
Class E - Two Year Warrants, and Class F - Three Year Warrants as hereinafter
described (collectively, the "Warrants") to purchase up to an aggregate of
32,000,000 shares of the Company's Common Stock, having par value of One Cent
($0.01) per share (the "Common Stock"), subject to adjustment as provided in
this Warrant Agreement (such 32,000,000 shares, as adjusted, being hereinafter
referred to as the "Shares"). For purposes of distribution under the Plan,
the Debtor has bundled the 8,000,000 shares of Common Capital Stock and the
Warrants into "Units of Equity", each of which consists of one (1) share of
Common Capital Stock of the Company, one (1) Class C - One Year Warrant, one
(1) Class D - Eighteen Month Warrant, one (1) Class E - Two Year Warrant, and
one (1) Class F - Three Year Warrant;
WHEREAS, in accordance with the Plan, each Class 1 Claimant may convert
his Administrative Claim into one (1) Unit of Equity for each One Dollar and
00/100 ($1.00) of such Administrative Claim, except for Mr. Daniel J. Demers,
financial advisor to the Debtor-In-Possession, who shall be entitled to
received One Hundred Twenty-Five Thousand Three Hundred Sixteen (125,316)
Units of Equity as payment for his Administrative Claim. Each Class 2
Claimant may convert his Wage Claim into one (1) Unit of Equity for each One
Dollar and 00/100 ($1.00) of such Wage Claim. Each Class 4 Claimant shall be
paid two (2) Units of Equity for each One Dollar and 00/100 ($1.00) of his
Unsecured Claim; and
WHEREAS, each Class C - One Year Warrant shall entitle the Warrant Holder
thereof to purchase one share of Common Stock for a period of 365 days, from
the date of issuance, at an exercise price of (i) $1.00 for the first 180 days
and (ii) $2.00 for the remaining life of the Class C - One Year Warrant. Each
Class D - Eighteen Month Warrant shall entitle the Warrant Holder thereof to
purchase one share of Common Stock for a period of 547 days, from the date of
issuance, at an exercise price of (i) $2.00 for the first 365 days; (ii) $2.50
for the next 90 days; and (iii) $3.00 for the remaining life of the Class D -
Eighteen Month Warrant. Each Class E - Two Year Warrant shall entitle the
Warrant Holder thereof to purchase one share of Common Stock for a period of
730 days, from the date of issuance, at an exercise price of (i) $3.00 for the
first 547 days; (ii) $3.50 for the next 90 days; and (iii) $4.00 for the
remaining life of the Class E - Two Year Warrant. Each Class F - Three Year
Warrant shall entitle the Warrant Holder thereof to purchase one share of
Common Stock for a period of 1,095 days, from the date of issuance, at an
exercise price of (i) $4.00 for the first 730 days; (ii) $5.00 for the next
190 days; and (iii) $6.00 for the remaining life of the Class F - Three Year
Warrant.
NOW THEREFORE, pursuant to the Plan, the Company hereby establishes Class
C - One Year Warrants, Class D - Eighteen Month Warrants, Class E - Two Year
Warrants, and Class F - Three Year Warrants to purchase Common Stock, having
par value of One Cent ($0.01) per share, of the Company, which the Company and
Vista agree shall have the following rights, qualifications, limitations and
restrictions:
1. Issuance of Warrants; Form of Warrant. On the Effective Date the
Company will issue and Vista shall deliver the Warrants to Mr. Daniel J.
Demers, the Warrants to the holders of each Class 4 Claim, and the Warrants to
the holders of each Class 1and Class 2 Claim who have elected to convert their
Claims pursuant to the Plan. The Warrants may be issued in either
certificated or uncertificated form. The form of the Class C - One Year
Warrant certificate, the form of assignment thereof, and the form of election
to purchase Shares to be attached thereto shall be substantially as set forth
on Exhibit A attached hereto and incorporated herein by reference. The form
of the Class D - Eighteen Month Warrant certificate, the form of assignment
thereof, and the form of election to purchase Shares to be attached thereto
shall be substantially as set forth on Exhibit B attached hereto and
incorporated herein
by reference. The form of the Class E - Two Year Warrant certificate, the
form of assignment thereof, and the form of election to purchase Shares to be
attached thereto shall be substantially as set forth on Exhibit C attached
hereto and incorporated herein by reference. The form of the Class E - Three
Year Warrant certificate, the form of assignment thereof, and the form of
election to purchase Shares to be attached thereto shall be substantially as
set forth on Exhibit D attached hereto and incorporated herein by reference.
Warrant certificates shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman, President or any
Vice President of the Company and attested by the manual or facsimile
signature of the present or any future Secretary or Assistant Secretary of the
Company.
2. Registration. The Warrants shall be numbered and shall be registered
in a Warrant register (the "Warrant Register") to be kept by Vista or a
Warrant Agent appointed by the Company. The Company shall be entitled to
treat the registered Warrant Holder of any Warrant on the Warrant Register as
the owner in fact thereof for all purposes and shall not be bound to recognize
any equitable or other claim to or interest in such Warrant on the part of any
other person, and shall not be liable for any registration or transfer of
Warrants which are registered or are to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the Company's actual
knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with such knowledge of such facts
that its participation therein amounts to bad faith. The Warrant Holder shall
not have any rights as a shareholder of the Company with regard to the Shares
available from exercise of the Warrant prior to actual exercise resulting in
the purchase of the Shares.
3. Transfer or Assignment of Warrants. Warrant certificates may be
exchanged for other Warrant certificates representing an equal aggregate
number of Warrants of the same class or may be transferred in whole or in
part. Warrant certificates to be exchanged shall be surrendered to Vista or
to the Company's Warrant Agent at its corporate office, and upon satisfaction
of the terms and provisions hereof, the Company shall execute, issue and Vista
shall deliver in exchange therefor the Warrant certificate or certificates
which the registered Warrant Holder making the exchange shall be entitled to
receive. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified, shall be
deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited with Vista in
its discretion. Upon any registration of transfer, Vista shall deliver a new
Warrant or Warrants to the persons entitled thereto. Vista may require
payment of a sum sufficient to cover all taxes and other governmental charges
that may be imposed in connection with any voluntary transfer, exchange or
other disposition of the Warrants. With respect to any offer, sale, or other
disposition of this Warrant or any underlying securities, the Warrant Holder
will give written notice to the Company prior thereto, describing briefly the
manner thereof, together with a written opinion of such Warrant Holder's
counsel (if so requested by the Company), 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 the original Warrant.
Notwithstanding the foregoing, the Company shall have no obligation to cause
Warrants to be transferred on its books to any person if such transfer would
violate the Securities Act of 1933, as amended (the "Act"), or applicable
state securities laws.
4. Term of Warrants; Exercise of Warrants.
(a) Term of Warrants. Each Class C - One Year Warrant entitles the
Warrant Holder thereof to purchase one Share of Common Stock at a purchase
price of $1.00 per Share for the first One Hundred Eighty (180) days after
issue, and at a purchase price of $2.00 per Share for the remaining life of
the Class C - One Year Warrant (as adjusted from time to time pursuant to the
provisions hereof, the "Class C - One Year Warrant Exercise Price") at any
time from June 26, 2000 until 5:00p.m., Mobile, Alabama, time, on June 26,
2001 (the "Class C - One Year Warrant Expiration Date"). Each Class D -
Eighteen Month Warrant entitles the Warrant Holder thereof to purchase one
Share of Common Stock at a purchase price of $2.00 per Share for the first
Three Hundred Sixty-Five (365) days after issue, and at a purchase price of
$2.50 per Share for the remaining life of the Class D - Eighteen Month Warrant
(as adjusted from time to time pursuant to the provisions hereof, the "Class D
- - Eighteen Month Warrant Exercise Price") at any time from June 26, 2000 until
5:00p.m., Mobile, Alabama, time, on December 26, 2001 (the "Class D - Eighteen
Month Warrant Expiration Date"). Each Class E - Two Year Warrant entitles the
Warrant Holder thereof to purchase one Share of Common Stock at a purchase
price of $3.00 per Share for the first Five Hundred Forty-Seven (547) days
after issue, at a purchase price of $3.50 per Share for the next Ninety (90)
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days, and at a purchase price of $4.00 per Share for the remaining life of the
Class E - Two Year Warrant (as adjusted from time to time pursuant to the
provisions hereof, the "Class E - Exercise Price") at any time from June 26,
2000 until 5:00p.m., Mobile, Alabama, time, on June 26, 2002 (the "Class E -
Two Year Warrant Expiration Date"). Each Class F - Three Year Warrant
entitles the Warrant Holder thereof to purchase one Share of Common Stock at a
purchase price of $4.00 per Share for the first Seven Hundred Thirty (730)
days after issue, at a purchase price of $5.00 per Share for the next One
Hundred Ninety (190) days, and at a purchase price of $6.00 per Share for the
remaining life of the Class F - One Year Warrant (as adjusted from time to
time pursuant to the provisions hereof, the "Class F - Exercise Price") at
any time from June 26, 2000 until 5:00p.m., Mobile, Alabama, time, on June 26,
2003 (the "Class F - One Year Warrant Expiration Date"). If any Exercise Date
is not a business day (defined as a Saturday, Sunday or any other day which
banks are authorized by law to remain closed), then the Exercise Date shall
fall on the next following business day. Notwithstanding any other provisions
contained herein, the Warrant Expiration Dates may be extended, from time to
time, by mutual agreement and written consent of the Company and the Warrant
Holder. All shares of Common Stock which may be issued upon the exercise of
the Warrants will, upon issuance, be validly issued, fully paid and
nonassessable and, except as otherwise set forth herein, free from all taxes,
liens and charges with respect to the issuance thereof.
(b) Exercise of Warrants. The Exercise Price and the number of Shares
issuable upon exercise of Warrants are subject to adjustment upon the
occurrence of certain events, pursuant to the terms of this Warrant Agreement.
Subject to the provisions of this Warrant Agreement, each Warrant Holder shall
have the right, which may be exercised as set forth in such Warrants, to
purchase from the Company (and the Company shall issue and sell to such
Warrant Holder) the number of fully paid and nonassessable Shares specified in
such Warrants, upon surrender to the Company, or Vista, of such Warrants, with
the form of election to purchase attached thereto duly completed and signed,
with signatures guaranteed by a member firm of a national securities exchange,
a commercial bank (not a savings bank or savings and loan association) or
trust company located in the United States or a member of the NASD and upon
payment to the Company of the Exercise Price, as adjusted in accordance with
the terms of this Warrant Agreement, for the number of Shares in respect of
which such Warrants are then exercised. No adjustment shall be made for any
dividends on any Shares issuable upon exercise of a Warrant. Upon each
surrender of Warrants and payment of the applicable Exercise Price, the
Company shall issue and cause to be delivered with all reasonable dispatch,
but in no event later than three trading days following such surrender and
payment, to or upon the written order of the Warrant Holder of such Warrants
and in such name or names as such Warrant Holder may designate, a certificate
or certificates for the number of full Shares so purchased upon the exercise
of such Warrants as set forth herein. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Shares as of the
date of the surrender of Warrants and payment of the applicable Exercise Price
as aforesaid; provided, however, that if, at the date of surrender of such
Warrants, the transfer books for the Common Stock or other class of securities
issuable upon the exercise of such Warrants shall be closed, the certificates
for the Shares shall be issuable as of the date on which such books shall next
be opened (whether before, on or after the Warrant Expiration Date) and until
such date the Company shall be under no duty to deliver any certificate for
such Shares; provided, further, however, that the transfer books of record,
unless otherwise required by law, shall not be closed at any one time for an
unreasonable period. The rights of purchase represented by the Warrants shall
be exercisable, at the election of the Warrant Holder(s) thereof, either in
full or from time to time in part and, in the event that any Warrant is
exercised in respect of less than all of the Shares issuable upon such
exercise at any time prior to the Warrant Expiration Date, a new Warrant or
Warrants will be issued for the remaining number of Shares specified in the
Warrant so surrendered. Each 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. Each Warrant 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 Company at its principal office or to Vista
together with the appropriate form of exercise duly completed and executed on
behalf of the Warrant Holder, accompanied by the payment in full of the amount
of the aggregate Exercise Price of the Warrant Shares in immediately available
funds.
(c) Payment of Exercise Price. Payment of the applicable Exercise Price
may be made in cash or by certified check or official bank check payable to
the order of the Company.
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5. Payment of Taxes. The Company will pay all documentary stamp taxes,
if any, attributable to the issuance of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for Shares in a name other than that of the
Holder of Warrants in respect of which such Shares are issued.
6. Mutilated or Missing Warrants. Upon receipt by the Company 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 Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of the
mutilated Warrant or stock certificate.
7. Reservation of Shares. There have been reserved, and the Company
shall at all times keep reserved, out of the authorized and unissued Common
Stock, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding Warrants.
The Company or the transfer agent for the Common Stock (including every
subsequent transfer agent, if any) for the Company's securities issuable upon
the exercise of the Warrants will be irrevocably authorized and directed at
all times until the Warrant Expiration Date to reserve such number of
authorized and unissued shares as shall be required for such purpose. The
Company will keep a copy of this Warrant Agreement on file with the transfer
agent for any shares of the Company's securities issuable upon the exercise of
the Warrants. Upon request, the Company will supply the transfer agent with
duly executed certificates for such purpose and will itself provide or
otherwise make available any cash which may be distributable as provided in
this Warrant Agreement. All Warrants surrendered in the exercise of the
rights thereby evidenced shall be canceled, and such canceled Warrants shall
constitute sufficient evidence of the number of Shares that have been issued
upon the exercise of such Warrants. No shares of Common Stock shall be
subject to reservation in respect of unexercised Warrants subsequent to the
Warrant Expiration Date.
8. Adjustments of Exercise Price and Number of Shares. The Class C -
One Year Warrant Exercise Price, the Class D - Eighteen Month Warrant Exercise
Price, the Class E - Two Year Warrant Exercise Price, the Class F - Three Year
Warrant Exercise Price and the number and kind of securities issuable upon
exercise of each Warrant shall be subject to adjustment from time to time upon
the happening of certain events, as follows:
(a) If the Company 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 the Warrant exist under the same or
different number of securities of any class or classes, the Warrant shall
thereafter entitle the Warrant 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 Company's Common Stock are subdivided
into a greater number of Shares of Common Stock, the purchase price for the
Warrant Shares shall be proportionately increased; and conversely, if Shares
of the Company's Common Stock are combined into a smaller number of Shares of
Common Stock, the price shall be proportionately increased, and the Warrant
Shares shall be proportionately decreased.
(b) For the purpose of this Section 8, the term "shares of Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Warrant Agreement or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from no par value to par value,
or from par value to no par value. In the event that at any time, as a result
of an adjustment made pursuant to paragraph (a) above, the Warrant Holders
shall become entitled to purchase any shares of capital stock of the Company
other than shares of Common Stock, thereafter the number of such other shares
so purchasable upon exercise of each Warrant and the Exercise Price of such
shares shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
the Shares contained in this Warrant Agreement.
(c) The terms of this Warrant Agreement may be amended with mutual
agreement and written consent of the Company and the Warrant Holder.
(d) Whenever the number of Shares issuable upon the exercise of each
Warrant or the applicable
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Exercise Price of such Shares is adjusted, as herein provided, the Company
shall promptly mail by first class mail, postage prepaid, to each Warrant
Holder notice of such adjustment or adjustments.
9. Repurchase Right. The Warrant Holder hereby grants the Company the
right to repurchase (the "Repurchase Right") exercisable at any time during
the Exercise Period at Five Cents ($0.05) per share (the "Repurchase Price"),
any Warrant Shares not exercised and not purchased by Warrant Holder
("Repurchase Shares") on or before the Repurchase Date (defined below).
(a) The Repurchase Right shall be exercisable by written notice
("Repurchase Notice") delivered by the Company to the Warrant Holder prior to
the expiration of the Exercise Period. The Repurchase Notice shall indicate
the number of Repurchased Shares to be repurchased by the Company and the
dated ("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, Warrant Holder shall deliver and surrender the Warrant
to the Company, and the Company shall, concurrently with the receipt of the
Warrant, pay to Warrant 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) Notwithstanding delivery of the Repurchase Notice by the Company to
Warrant Holder, at any time prior to the Repurchase Date, Warrant Holder may
exercise the Warrant with respect to all unexercised Warrant Shares in
accordance with the terms of this Warrant Agreement.
(c) In the event of any adjustment ("Adjustment") pursuant to this
Warrant Agreement, 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 Company upon the exercise of the
Repurchase Right in order to reflect the effect of any such Adjustment.
10. Notices. Unless otherwise provided, any notice required or
permitted under this Warrant Agreement 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 Company's records, or at such other address as such party may
designate by ten (10) days advance written notice to the other parties.
11. Attorney's Fees. If any action at law or in equity is necessary
to enforce or interpret the terms of this Warrant Agreement or each Warrant
issued hereunder, 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 be entitled.
12. Governing Law. This Warranty Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the
substantive laws of the State of Alabama and to be performed entirely within
the State of Alabama. Venue for any and all actions or disputes arising out
of this Warranty Agreement and each Warrant issued hereunder shall be the
State of Alabama.
13. Headings. The headings of the sections and paragraphs of this
Warranty Agreement have been inserted for convenience of reference only and
shall in no way restrict or otherwise modify any of the terms or provisions
hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant Agreement to be duly
executed as of the day, month and year first above written.
COMPANY: Advanced Wireless Systems, Inc.
By: Thomas M. Howard
President
ATTEST:
Secretary
VISTA: Vista Transfer, Inc.
By: Dana Mascato
President
ATTEST:
Secretary
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
the Warrant Certificates.)
FOR VALUE RECEIVED, _________________________________ hereby sells,
assigns and transfers unto _________________________________ this Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ______________________________ to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
The undersigned represents and warrants that the transfer of the within
Warrant is permitted by the terms of the Warrant Agreement pursuant to which
the within Warrant has been issued, and the transferee hereof, by his
acceptance of this Assignment, represents and warrants that he is familiar
with the terms of said Warrant Agreement and agrees to be bound by the terms
thereof with the same force and effect as if a signatory thereto.
Date: Signature:
Witness:
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant Certificate in every particular, without
alteration or any change whatsoever.
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FORM OF
ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate).
TO: ADVANCED WIRELESS SYSTEMS, INC.
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase ____________ shares of
Common Stock and requests that certificates for such shares be issued in the
name of:
Please insert social security, tax identification or other identifying number
(Please print name and address)
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of
such Warrants shall be registered in the name of and delivered to:
Please insert social security, tax identification or other identifying number
(Please print name and address)
Date: Signature:
Witness:
NOTICE
The signature on the foregoing Election must correspond to the name as written
upon the face of this Warrant Certificate in every particular, without
alteration or any change whatsoever.
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