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Exhibit 4.5
WARRANT AGREEMENT
Dated as of November 20, 2000
By and Between
SPECTRASITE HOLDINGS, INC.
and
FIRST UNION NATIONAL BANK,
as Warrant Agent
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Warrants to Purchase Common Stock,
Par Value $0.001 Per Share
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TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE, FORM, EXECUTION, DELIVERY
AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants................................2
SECTION 1.03. Execution of Warrant Certificates...................2
SECTION 1.04. Authentication and Delivery.........................3
SECTION 1.05. Registration........................................4
SECTION 1.06. Registration of Transfers or Exchanges..............5
SECTION 1.07. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
Certificates........................................6
SECTION 1.08. Offices for Exercise, etc...........................7
ARTICLE II
DURATION, EXERCISE OF WARRANTS;
EXERCISE PRICE AND REPURCHASE OF WARRANTS
SECTION 2.01. Duration of Warrants................................8
SECTION 2.02. Exercise, Exercise Price, Settlement and Delivery...8
SECTION 2.03. Cancellation of Warrant Certificates...............12
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANTS
SECTION 3.01. Enforcement of Rights..............................12
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01. Payment of Taxes...................................13
SECTION 4.02. Rule 144...........................................13
SECTION 4.03. Registration of Shares.............................13
ARTICLE V
ADJUSTMENTS
SECTION 5.01. Adjustment of Exercise Rate and Exercise Price;
Notices............................................14
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SECTION 5.02. Fractional Shares..................................24
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01. Warrant Agent......................................25
SECTION 6.02. Conditions of Warrant Agent's Obligations..........25
SECTION 6.03. Resignation and Removal and Appointment of
Successor..........................................30
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendment..........................................32
SECTION 7.02. Notices and Demands to the Company and Warrant Agent
...................................................33
SECTION 7.03. Addresses for Notices to Parties and for Transmission
of Documents.......................................34
SECTION 7.04. Notices to Holders.................................35
SECTION 7.05. APPLICABLE LAW.....................................35
SECTION 7.06. Persons Having Rights Under Agreement..............35
SECTION 7.07. Headings...........................................35
SECTION 7.08. Counterparts.......................................35
SECTION 7.10. Availability of Equitable Remedies.................36
SECTION 7.11. Obtaining of Governmental Approvals................36
EXHIBIT A - Form of Warrant Certificate.......................A-1
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INDEX OF DEFINED TERMS
Defined Term Section
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Agreement..........................................................Recitals
Below Market Sale..................................................5.01(b)
Business Day.......................................................2.01
Capital Stock......................................................5.01(n)
Cashless Exercise..................................................2.02(c)
Cashless Exercise Ratio............................................2.02(c)
Common Stock.......................................................Recitals
Company............................................................Recitals
Current Market Value...............................................5.01(n)
Election to Exercise...............................................2.02(b)
Exercisability Date................................................2.02(a)
Exercise Date......................................................2.02(d)
Exercise Price.....................................................2.02(a)
Exercise Rate......................................................2.02(a)
Expiration Date....................................................2.01
Fully Diluted Shares...............................................5.01(b)
Fundamental Transaction............................................5.01(d)
Independent Financial Expert.......................................5.01(n)
Officer's Certificate..............................................5.01(e)
Private Placement Legend...........................................1.06(b)
Purchase Agreement.................................................Recitals
Purchaser..........................................................Recitals
Registrar..........................................................1.05
Registration Rights Agreement......................................Recitals
Related Parties....................................................6.02(e)
Requisite Warrant Holders..........................................7.01
Securities Act.....................................................1.05
Shares.............................................................1.01
Surviving Person...................................................5.01(d)
Time of Determination..............................................5.01(b)
Warrant Agent......................................................Recitals
Warrant Agent Office...............................................1.08
Warrant Certificates...............................................Recitals
Warrant Exercise Office............................................2.02(b)
Warrant Register...................................................1.05
Warrants...........................................................Recitals
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of November 20, 2000 (the
"Agreement") by and between SPECTRASITE HOLDINGS, INC., a Delaware corporation
(together with any successor thereto, the "Company"), and FIRST UNION NATIONAL
BANK, as warrant agent ("First Union"; with any successor Warrant Agent, the
"Warrant Agent").
WHEREAS, the Company has entered into a purchase agreement
(the "Purchase Agreement") dated as of November 20, 2000 by and among the
Company and Trimaran Fund II, L.L.C., Trimaran Capital, L.L.C., Trimaran
Parallel Fund II, L.P., CIBC Employee Private Equity Fund (Trimaran) Partners
and CIBC World Markets Ireland Limited (each a "Purchaser" and collectively, the
"Purchasers") in which the Company has agreed to issue and sell to the
Purchasers 4,000,000 shares of Common Stock, par value $0.001 per share, of the
Company (the "Common Stock"), along with 1,500,000 Warrants (the "Warrants"),
600,000 of the Warrants (the "Series I Warrants") initially entitling the holder
thereof to purchase one share of Common Stock at a price equal to $21.56 per
share, 450,000 of the Warrants (the "Series II Warrants") initially entitling
the holder thereof to purchase one share of Common Stock at a price equal to
$23.86 per share and 450,000 of the Warrants (the "Series III Warrants")
initially entitling the holder thereof to purchase one share of Common Stock at
a price equal to $28.00 per share. The certificates evidencing the Warrants are
herein referred to collectively as the "Warrant Certificates"; and
WHEREAS, the holders of the Warrants are entitled to the
benefits of a Registration Rights Agreement dated as of November 20, 2000 among
the Company and the Purchasers (the "Registration Rights Agreement"); and
WHEREAS, the Company desires the Warrant Agent as warrant
agent to assist the Company in connection with the issuance, exchange,
cancellation, replacement and exercise of the Warrants, and in this Agreement
wishes to set forth, among other things, the terms and conditions on which the
Warrants may be issued, exchanged, cancelled, replaced and exercised;
NOW, THEREFORE, the parties hereto agree as follows:
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ARTICLE I
ISSUANCE, FORM, EXECUTION, DELIVERY
AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01......Issuance of Warrants. Each Warrant
Certificate shall evidence the number of Warrants specified therein, and each
Warrant evidenced thereby shall, when exercisable as provided herein and
therein, represent the right, subject to the provisions contained herein and
therein, to purchase from the Company (and the Company shall issue and sell to
the holder of such Warrant upon exercise thereof) one fully paid and
non-assessable share of the Company's Common Stock at an exercise price of
$21.56 per share, in the case of the Series I Warrants, $23.86 per share, in the
case of Series II Warrants, and $28.00 per share, in the case of the Series III
Warrants. The shares purchasable upon exercise of a Warrant are hereinafter
referred to as the "Shares" and are subject to adjustment as provided herein and
in the Warrant, and, unless the context otherwise requires, such term shall also
include any other securities or property purchasable and deliverable upon
exercise of a Warrant as provided in Article V, subject to adjustment as
provided herein and in the Warrant.
SECTION 1.02......Form of Warrant Certificates. The Warrant
Certificates will be issued in registered form as definitive Warrant
Certificates substantially in the form of Exhibit A attached hereto, in the case
of Series I Warrants, Exhibit B attached hereto, in the case of Series II
Warrants, and Exhibit C attached hereto, in the case of Series III Warrants.
SECTION 1.03......Execution of Warrant Certificates. The
Warrant Certificates shall be executed on behalf of the Company by the chairman
of its Board of Directors, its president or any vice president and attested by
its secretary or assistant secretary. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such reproduction of any such signature
shall not affect the validity or enforceability of any Warrant Certificate that
has been duly countersigned and delivered by the Warrant Agent.
In case any officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such officer before the Warrant
Certificate so signed shall be countersigned and delivered by the Warrant Agent
or disposed of by the Company, such Warrant Certificate nevertheless may be
countersigned
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and delivered or disposed of as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution and delivery of
this Agreement any such person was not such an officer. The Warrant Agent may
assume any person who shall have signed any Warrant Certificate to be
countersigned and delivered by the Warrant Agent is authorized to do so unless
the Company shall have notified the Warrant Agent that such person is no longer
an officer of the Company or otherwise unauthorized to execute any Warrant
Certificate.
SECTION 1.04......Authentication and Delivery. Subject to the
immediately following paragraph, Warrant Certificates shall be authenticated by
manual or facsimile signature and dated the date of authentication by the
Warrant Agent and shall not be valid for any purpose unless so authenticated and
dated. The Warrant Certificates shall be numbered and shall be registered in the
Warrant Register (as defined in Section 1.05 hereof).
Upon the receipt by the Warrant Agent of a written order of
the Company, which order shall be signed by the chairman of its Board of
Directors, its president, Chief Financial Officer or any vice president and
attested by its secretary or assistant secretary, and shall specify the series
and number of Warrants to be authenticated, the date of such Warrants and such
other information as the Warrant Agent may reasonably request, without any
further action by the Company, the Warrant Agent is authorized, upon receipt
from the Company at any time and from time to time of the Warrant Certificates,
duly executed as provided in Section 1.03 hereof, to authenticate the Warrant
Certificates and upon the holder's request deliver them. Such authentication
shall be by a duly authorized signatory of the Warrant Agent (although it shall
not be necessary for the same signatory to sign all Warrant Certificates). The
Warrant Agent shall be fully protected in relying on any such written order and
shall not be liable for any loss or damage resulting from any actions taken in
accordance therewith.
In case any authorized signatory of the Warrant Agent who
shall have authenticated any of the Warrant Certificates shall cease to be such
authorized signatory before the Warrant Certificate shall be disposed of by the
Company or the Warrant Agent, such Warrant Certificate nevertheless may be
delivered or disposed of as though the person who authenticated such Warrant
Certificate had not ceased to be such authorized signatory of the Warrant Agent;
and any Warrant
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Certificate may be authenticated on behalf of the Warrant Agent by such persons
as, at the actual time of authentication of such Warrant Certificates, shall be
the duly authorized signatories of the Warrant Agent, although at the time of
the execution and delivery of this Agreement any such person is not such an
authorized signatory.
The Warrant Agent's authentication on all Warrant Certificates
shall be in substantially the form set forth in Exhibit A, Exhibit B or Exhibit
C hereto, as applicable.
SECTION 1.05......Registration. The Company will keep, at the
office or agency maintained by the Company for such purpose, a register or
registers in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of, and registration of transfer
and exchange of, Warrants as provided in this Article. Each person designated by
the Company from time to time as a person authorized to register the transfer
and exchange of the Warrants is hereinafter called, individually and
collectively, the "Registrar." The Company hereby initially appoints the Warrant
Agent as Registrar. Upon written notice to the Warrant Agent and any acting
Registrar, the Company may appoint a successor Registrar for such purposes.
The Company will at all times designate one person (who may be
the Company and who need not be a Registrar) to act as repository of a master
list of names and addresses of the holders of Warrants (the "Warrant Register").
The Warrant Agent will act as such repository unless and until some other person
is, by written notice from the Company to the Warrant Agent and the Registrar,
designated by the Company to act as such. The Company shall cause each Registrar
to furnish to such repository, on a current basis, such information as to all
registrations of transfer and exchanges effected by such Registrar, as may be
necessary to enable such repository to maintain the Warrant Register on as
current a basis as is practicable.
SECTION 1.06......Registration of Transfers or Exchanges.
(a) Transfer or Exchange of Warrants. When Warrants are
presented to the Warrant Agent with a request from the holder:
(i) to register the transfer of the Warrants; or
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(ii) to exchange such Warrants for an equal number of Warrants of
other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if the requirements under this Warrant Agreement as set forth in this Section
1.06 for such transactions are met; provided, however, that the Warrants
presented or surrendered by a holder for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instruction of transfer or
exchange in form satisfactory to the Company and the Warrant Agent, duly
executed by such holder or by his attorney, duly authorized in writing.
(b) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Warrant Certificates not bearing the legend
set forth in the first paragraph of Exhibit A attached hereto (the "Private
Placement Legend"), the Warrant Agent shall deliver Warrant Certificates that do
not bear the Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Warrant Certificates bearing the Private Placement
Legend, the Warrant Agent shall deliver Warrant Certificates that bear the
Private Placement Legend unless, and the Warrant Agent is hereby authorized to
deliver Warrant Certificates without the Private Placement Legend if, (i) the
requested transfer is not prior to the date which is two years (or such shorter
period as may be prescribed by Rule 144(k) (or any successor provision thereto)
under the Securities Act of 1933, as amended (the "Securities Act") or any
successor provision thereunder) as may be determined by the Company in writing
to the Warrant Agent after the later of the original Issue Date of the Warrants
as reflected on the face of the Warrant Certificate or the last day on which the
Company or any of its Affiliates was the owner of the Warrant or any predecessor
security as certified in writing by the Company to the Warrant Agent, (ii) there
is delivered to the Warrant Agent an opinion of counsel reasonably satisfactory
to the Company and the Warrant Agent to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) the Warrants to be
transferred or exchanged represented by such Warrant Certificates are being
transferred or exchanged pursuant to an effective registration statement under
the Securities Act of which the Company shall have notified the Warrant Agent in
writing.
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(c) Obligations with Respect to Transfers or Exchanges of
Warrants.
(i) To permit registrations of transfers or exchanges, the Company
shall execute, at the Warrant Agent's request, and the Warrant
Agent shall authenticate Warrants.
(ii) All Warrants issued upon any registration, transfer or
exchange of Warrants shall be the valid obligations of the
Company, entitled to the same benefits under this Warrant
Agreement as the Warrants surrendered upon the registration of
transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any
Warrant, the Warrant Agent and the Company may deem and treat
the person in whose name any Warrant is registered as the
absolute owner of such Warrant, and neither the Warrant Agent
nor the Company shall be affected by notice to the contrary.
SECTION 1.07......Lost, Stolen, Destroyed, Defaced or
Mutilated Warrant Certificates. Upon receipt by the Company and the Warrant
Agent (or any agent of the Company or the Warrant Agent, if requested by the
Company) of evidence satisfactory to them of the loss, theft, destruction,
defacement, or mutilation of any Warrant Certificate and of an indemnity bond
satisfactory to them and, in the case of mutilation or defacement, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser or holder in due course, the Company
shall execute and deliver to the Warrant Agent, and an authorized signatory of
the Warrant Agent shall manually authenticate and further deliver, in exchange
for or in lieu of the lost, stolen, destroyed, defaced or mutilated Warrant
Certificate, a new Warrant Certificate representing a like number of Warrants,
bearing a number or other distinguishing symbol not contemporaneously
outstanding. The Company or the Warrant Agent may require an indemnity bond that
is sufficient in the judgment of the Company and the Warrant Agent to protect
the Company and the Warrant Agent from any loss which any of them may suffer if
a Warrant Certificate is replaced. Upon the issuance of any new Warrant
Certificate under this Section in a name other than the prior registered holder
of the lost, stolen, destroyed, defaced or mutilated Warrant Certificate, the
Company or the Warrant Agent may require the payment from the holder of such
Warrant Certificate of a sum sufficient to cover
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any tax, stamp tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent and the Registrar) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall constitute an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of (but shall be subject to all the
limitations of rights set forth in) this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 1.08 are exclusive with respect to the
replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates and shall preclude (to the extent lawful) any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement of lost, stolen, destroyed, defaced
or mutilated Warrant Certificates.
The Warrant Agent is hereby authorized to authenticate in
accordance with the provisions of this Agreement, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section.
SECTION 1.08......Offices for Exercise, etc. So long as any of
the Warrants remain outstanding, the Company will designate and maintain (a) an
office or agency where the Warrant Certificates may be presented for exercise,
(b) an office or agency where the Warrant Certificates may be presented for
registration of transfer and for exchange, and (c) an office or agency where
notices and demands to or upon the Company in respect of the Warrants or of this
Agreement may be served. The Company may from time to time change or rescind
such designation, as it may deem desirable or expedient. The Company may from
time to time designate and maintain one or more additional offices or agencies,
where Warrant Certificates may be presented for exercise or for registration of
transfer or for exchange, and the Company may from time to time change or
rescind such designation, as it may deem desirable or expedient. The Company
will give to the Warrant Agent written notice of the location of any such office
or agency and of any change of location thereof. The Company hereby designates
the Warrant Agent at its corporate trust office in Charlotte, North Carolina
(the "Warrant Agent Office"), as the initial agency maintained for each such
purpose. In case the Company shall fail to maintain any such office or agency or
shall fail to
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give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notice may be served at the Warrant
Agent Office and the Company appoints the Warrant Agent as its agent to receive
all such presentations, surrenders, notices and demands.
ARTICLE II
DURATION, EXERCISE OF WARRANTS;
EXERCISE PRICE AND REPURCHASE OF WARRANTS
SECTION 2.01......Duration of Warrants. Subject to the terms
and conditions established herein, the Warrants shall expire at 5:00 p.m., New
York City time, on November 20, 2007. The applicable date of expiration of a
particular Warrant is referred to herein as the "Expiration Date" of such
Warrant. Each Warrant may be exercised on any Business Day (as defined below) on
or after the Exercisability Date (as defined in Section 2.02) and prior to 5:00
p. m. New York City time on the Expiration Date.
Any Warrant not exercised before the close of business on the
Expiration Date shall become void, and all rights of the holder under the
Warrant Certificate evidencing such Warrant and under this Agreement shall
cease.
"Business Day" shall mean any day on which (i) banks in New
York City and Charlotte, North Carolina, and (ii) the principal U.S. securities
exchange or market, if any, on which any Common Stock is listed or admitted to
trading are open for business.
SECTION 2.02......Exercise, Exercise Price, Settlement and
Delivery. (a) Subject to the provisions of this Agreement, a holder of a Warrant
shall have the right to purchase from the Company on or after the Exercisability
Date and prior to 5:00 p.m., New York City time on the Expiration Date the
number of fully paid and non-assessable shares of Common Stock specified in
Section 1.01, registered with the transfer agent for the Common Stock, subject
to adjustment in accordance with Article V hereof, at the purchase price of
$21.56 for each share purchased, in the case of the Series I Warrants, $23.86
for each share purchased, in the case of the Series II Warrants, and $28.00 for
each share purchased, in the case of the Series III Warrants (in each case, the
"Exercise Price"). The Exercise Price and the number of Shares for which a
particular Warrant may be exercised (the "Exercise Rate") shall be subject to
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adjustment from time to time as set forth in Article V hereof.
"Exercisability Date" means, with respect to each Warrant, the
date and time of issuance thereof.
(b) Warrants may be exercised on or after the date they are
exercisable hereunder by (i) surrendering at any office or agency maintained for
that purpose by the Company pursuant to Section 1.09 (each a "Warrant Exercise
Office") the Warrant Certificate evidencing such Warrants with the form of
election to exercise Shares set forth on the reverse side of the Warrant
Certificate (the "Election to Exercise") duly completed and signed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, and in the case of a
transfer, such signature shall be guaranteed by an eligible guarantor
institution, and (ii) paying in full the Exercise Price for each such Warrant
exercised. Each Warrant may be exercised only in whole. No exercise of Warrants
may be effected which does not call for the issuance of a number of shares of
Common Stock in direct proportion (subject only to rounding with respect to
fractional shares) to the aggregate number of shares of Common Stock then
issuable upon exercise of the Warrants evidenced by the relevant Warrant
Certificate.
(c) Simultaneously with the exercise of each Warrant, payment
in full of the aggregate Exercise Price may be made, at the option of the
holder, (i) by wire transfer of immediately available funds, (ii) by the
surrender (which surrender shall be evidenced by cancellation of the number of
Warrants represented by any Warrant Certificate presented in connection with a
Cashless Exercise) of a Warrant or Warrants (represented by one or more Warrant
Certificates), and without payment of the Exercise Price in cash, for such
number of Shares equal to the product of (1) the number of Shares for which such
Warrant is exercisable (without giving effect to the Cashless Exercise option)
as of the date of exercise and (2) the applicable Cashless Exercise Ratio or
(iii) with any combination of (i) and (ii). An exercise of a Warrant in
accordance with clause (ii) of the immediately preceding sentence is herein
called a "Cashless Exercise." For purposes of this Agreement, the "Cashless
Exercise Ratio" shall equal a fraction, the numerator of which is the excess of
the Current Market Value per share of the Common Stock on the date of exercise
over the Exercise Price per share as of the date of exercise and the denominator
of which is the Current Market Value per share of the Common Stock on the date
of exercise.
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Upon surrender of a Warrant Certificate representing more than one Warrant in
connection with the holder's option to elect a Cashless Exercise, the number of
Shares deliverable upon a Cashless Exercise shall be equal to the Cashless
Exercise Ratio multiplied by the product of (a) the number of Warrants that the
holder specifies is to be exercised pursuant to a Cashless Exercise and (b) the
number of Shares for which such Warrant is then exercisable (without giving
effect to the Cashless Exercise option). All provisions of this Agreement shall
be applicable with respect to an exercise of a Warrant Certificate pursuant to a
Cashless Exercise for less than the full number of Warrants represented thereby.
No payment or adjustment shall be made on account of any dividends on the Shares
issued upon exercise of a Warrant. If the Company has not effected the
registration under the Securities Act of the offer and sale of the Shares by the
Company to the holders of the Warrants upon the exercise thereof, the Company
may elect to require that holders of the Warrants effect the exercise of the
Warrants solely pursuant to the Cashless Exercise option and may also amend the
Warrants to eliminate the requirement for payment of the Exercise Price with
respect to such Cashless Exercise option. The Warrant Agent shall have no
obligation under this section to calculate the Cashless Exercise Ratio, the
Exercise Price, the Exercise Ratio, or the Current Market Value or other similar
numbers or rates contemplated by this Agreement. The Company shall calculate all
such numbers or ratios whenever such calculation is necessary or at the
reasonable request of the Warrant Agent and shall deliver an Officer's
Certificate to the Warrant Agent specifying such numbers, which calculation
shall be confirmed by the Purchasers as long as any Warrants are held by the
Purchasers. The Warrant Agent shall be fully protected in relying on any such
certificate and shall not be liable for any loss or damage resulting from its
actions taken in reliance thereon.
(d) Upon such surrender of a Warrant Certificate and payment
and collection of the Exercise Price at any Warrant Exercise Office (other than
any Warrant Exercise Office that also is an office of the Warrant Agent), such
Warrant Certificate and payment shall be promptly delivered to the Warrant
Agent. The "Exercise Date" for a Warrant shall be the date when all of the items
referred to in the first sentence of paragraphs (b) and (c) of this Section 2.02
are received by the Warrant Agent at or prior to 11:00 a.m., New York City time,
on a Business Day and the exercise of the Warrants will be effective as of such
Exercise Date. If any items referred to in the first sentence of paragraphs (b)
and (c) are received after 11:00 a.m., New York City time, on a Business Day,
the exercise of the Warrants
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to which such item relates will be effective on the next succeeding Business
Day. Notwithstanding the foregoing, in the case of an exercise of Warrants on
the Expiration Date, if all of the items referred to in the first sentence of
paragraphs (b) and (c) are received by the Warrant Agent prior to 5:00 p.m., New
York City time, on the Expiration Date, the exercise of the Warrants to which
such items relate will be effective on the Expiration Date.
(e) Upon the exercise of a Warrant in accordance with the
terms hereof, the receipt of a Warrant Certificate and payment of the Exercise
Price (or election of the Cashless Exercise option), the Warrant Agent shall:
(i) except to the extent exercise of the Warrant has been effected through
Cashless Exercise, cause an amount equal to the aggregate Exercise Price to be
paid to the Company by crediting the same to the account designated by the
Company in writing to the Warrant Agent for that purpose; (ii) advise the
Company immediately by telephone of the amount so deposited to the Company's
account and promptly confirm such telephonic advice in writing; and (iii) as
soon as practicable, advise the Company in writing of the number of Warrants
exercised in accordance with the terms and conditions of this Agreement and the
Warrant Certificates, the instructions of each exercising holder of the Warrant
Certificates with respect to delivery of the Shares to which such holder is
entitled upon such exercise, and such other information as the Company shall
reasonably request.
(f) Subject to Section 5.02 hereof, as soon as practicable
after the exercise of any Warrant or Warrants in accordance with the terms
hereof, the Company shall issue or cause to be issued to or upon the written
order of the registered holder of the Warrant Certificate evidencing such
exercised Warrant or Warrants, a certificate or certificates evidencing the
Shares to which such holder is entitled, in fully registered form, registered
with the Company's transfer agent in such name or names as may be directed by
such holder pursuant to the Election to Exercise, as set forth on the reverse of
the Warrant Certificate. Each certificate or the certificates evidencing the
Shares shall bear a legend substantially similar to the Private Placement
Legend. Such certificate or certificates evidencing the Shares shall be deemed
to have been issued and any persons who are designated to be named therein shall
be deemed to have become the holder of record of such Shares as of the close of
business on the Exercise Date. After such exercise of any Warrant, the Company
shall also issue or cause to be issued to or upon the written order of the
registered holder of such Warrant Certificate, a
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new Warrant Certificate, countersigned by the Warrant Agent pursuant to written
instruction, evidencing the number of Warrants, if any, remaining unexercised
unless such Warrants shall have expired.
SECTION 2.03......Cancellation of Warrant Certificates. In the
event the Company shall purchase or otherwise acquire Warrants, the Warrant
Certificates evidencing such Warrants may thereupon be delivered to the Warrant
Agent, and if so delivered, shall at the Company's written instruction be
canceled by it and retired. The Warrant Agent shall cancel all Warrant
Certificates properly surrendered for exchange, substitution, transfer or
exercise in accordance with its customary procedures.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANTS
SECTION 3.01......Enforcement of Rights. (a) Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Shares or the holder
of any other Warrant Certificate, may, in and for his own behalf, enforce, and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, his right to exercise the Warrant or Warrants evidenced by
his Warrant Certificate in the manner provided in such Warrant Certificate and
in this Agreement.
(b) Neither the Warrants nor any Warrant Certificate shall
entitle the holders thereof to any of the rights of a holder of Shares,
including, without limitation, the right to vote or to receive any dividends or
other payments or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or for the election of directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company,
except as expressly provided herein.
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01......Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrants and of
the Shares upon the exercise of
<PAGE>
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Warrants; provided, however, that the Company shall not be required to pay any
tax or other governmental charge which may be payable in respect of any transfer
or exchange of any Warrant Certificates or any certificates for Shares in a name
other than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant. In any such case, no transfer or exchange shall be made
unless or until the person or persons requesting issuance thereof shall have
paid to the Company the amount of such tax or other governmental charge or shall
have established to the satisfaction of the Company that such tax or other
governmental charge has been paid or an exemption is available therefrom. The
Warrant Agent shall not be obligated to pay or advance any amounts in connection
with such costs or expenses.
SECTION 4.02......Rule 144. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Securities and
Exchange Commission thereunder in a timely manner in accordance with the
requirements of the Securities Act and the Exchange Act.
SECTION 4.03......Registration of Shares. The Company agrees
that it will comply with all applicable laws, including the Securities Act and
any applicable state securities laws, in connection with the delivery of shares
of Common Stock (and other securities and property deliverable) to the
registered holder of a Warrant upon exercise of such Warrant.
ARTICLE V
ADJUSTMENTS
SECTION 5.01......Adjustment of Exercise Rate and Exercise
Price; Notices. The Exercise Rate and the Exercise Price
are subject to adjustment from time to time as provided in this Section.
(a) Adjustment for Change in Capital Stock. If, after the
date hereof, the Company:
(i) subdivides any of its outstanding shares of Common
Stock into a greater number of shares;
(ii) combines any of its outstanding shares of Common Stock
into a smaller number of shares;
<PAGE>
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(iii) pays a dividend or makes a distribution (other than in
connection with any acquisition or leasing transaction engaged in by
the Company pursuant to the terms thereof) on any of its Common Stock
in shares of any of its Capital Stock (as defined below); or
(iv) issues by reclassification of any of its Common Stock
any shares of any of its Capital Stock;
then the Exercise Rate in effect immediately prior to such action for each
Warrant then outstanding shall be proportionately adjusted so that the holder of
a Warrant thereafter exercised may receive the number of shares of Capital Stock
of the Company which such holder would have owned immediately following such
action if such holder had exercised the Warrant immediately prior to such action
or immediately prior to the record date applicable thereto and the Exercise
Price in effect immediately prior to such action shall be adjusted to a price
determined by multiplying the Exercise Price in effect immediately prior to such
action by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding before giving effect to such action and the denominator
of which shall be the number of shares of Common Stock and/or such other capital
stock outstanding referred to in the foregoing clause (a)(iii) after giving
effect to such action, if any (without giving effect to the Cashless Exercise
option). If there are no outstanding shares of Common Stock that are of the same
class as the Shares at the time of any such action and such action has therefore
been taken only in respect of the Shares, the adjustment shall relate to the
Shares in their same form if it would not frustrate the intent and purposes of
this Section 5.01.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification. In
the event that such dividend or distribution is not so paid or made or such
subdivision, combination or reclassification is not effected, the Exercise Rate
and the Exercise Price shall again be adjusted to be the Exercise Rate or the
Exercise Price, as the case may be, which would then be in effect if such record
date or effective date had not been so fixed.
If after an adjustment a holder of a Warrant upon exercise of
such Warrant may receive shares of two or more classes of Capital Stock of the
Company, the Exercise Rate shall thereafter be subject to adjustment upon the
occurrence
<PAGE>
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of an action taken with respect to any such class of Capital Stock as is
contemplated by this Article V with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article V.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) Adjustment for Certain Issuances of Common Stock. If,
after the date hereof, the Company grants or sells to any Affiliate of the
Company (other than to a wholly-owned subsidiary) any Common Stock or any
securities convertible into or exchangeable or exercisable for any Common Stock
at a price below the then Current Market Value (a "Below Market Sale") (other
than (1) pursuant to the exercise of the Warrants, (2) pursuant to any security
convertible into, or exchangeable or exercisable for shares of Common Stock
outstanding as of the date of this Agreement, (3) upon the conversion, exchange
or exercise of any convertible, exchangeable or exercisable security as to which
upon the issuance thereof an adjustment pursuant to this Article V has been
made; (4) upon the conversion, exchange or exercise of any convertible,
exchangeable or exercisable securities of the Company outstanding on the date of
this Agreement (to the extent in accordance with the terms of such securities as
in effect on the date of this Agreement)and(5)a Below Market Sale in which a
holder of a Warrant or an Affiliate of a holder of a Warrant (or, if a Purchaser
or any of its Affiliates is a holder, CIBC World Markets Corp. or any of its
Affiliates) purchases any Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock), on the date of such grant or sale
(the "Time of Determination") the Exercise Rate for each Warrant then
outstanding shall be adjusted in accordance with the formula:
E' = E x O + N
-----------
O + N x P
-----
M
and the Exercise Price shall be adjusted in accordance with the following
formula:
EP' = EP x E
--
E'
where:
E' = the adjusted Exercise Rate.
<PAGE>
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E = the Exercise Rate immediately prior to the Time of Determination
for any such issuance, sale or distribution.
EP' = the adjusted Exercise Price.
EP = the Exercise Price immediately prior to the Time of Determination
for any such issuance, sale or distribution.
O = the number of Fully Diluted Shares (as defined below)
outstanding immediately prior to the Time of Determination
for any such issuance, sale or distribution.
N = the number of additional shares of Common Stock issued,
sold or issuable upon exercise of such rights, options or
warrants.
P = the per share price received and receivable by the
Company in the case of any issuance or sale of Common
Stock or rights, options or warrants inclusive of the
exercise price per share of Common Stock payable upon
exercise of such rights, options or warrants.
M = the Current Market Value per share of Common Stock on
the Time of Determination for any such issuance, sale or
distribution.
For purposes of this Section 5.01 the term "Fully Diluted
Shares" shall mean (i) the shares of Common Stock outstanding as of a specified
date, and (ii) the shares of Common Stock into or for which rights, options,
warrants or other securities outstanding as of such date are exercisable or
convertible (other than the Warrants).
The adjustments shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately
after the relevant Time of Determination. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Exercise Rate and the Exercise Price for each Warrant then outstanding shall be
readjusted to the Exercise Rate and the Exercise Price which would otherwise be
in effect had the adjustment made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. In the event that such rights
<PAGE>
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or warrants are not so issued, the Exercise Rate and the Exercise Price for each
Warrant then outstanding shall again be adjusted to be the Exercise Rate and the
Exercise Price which would then be in effect if such date fixed for
determination of stockholders entitled to receive such rights or warrants had
not been so fixed.
No adjustment shall be made under this paragraph (b) if the
application of the formula stated above in this paragraph (b) would result in a
value of E' that is lower than the value of E.
No adjustment in the Exercise Rate or the Exercise Price shall
be made under this paragraph (b) upon the conversion, exchange or exercise of
options to acquire shares of Common Stock by officers, directors, employees or
consultants of the Company; provided that the exercise price of such options, at
the time of issuance thereof, is at least equal to the then Current Market Value
of the Common Stock underlying such options.
(c) Adjustment for Other Distributions. If the Company
distributes to any holder of its Common Stock or any Affiliate of such holder
(other than for fair market value consideration as determined by the Board of
Directors of the Company) (i) any evidences of indebtedness of the Company or
any of its subsidiaries, (ii) any assets of the Company or any of its
subsidiaries (other than cash dividends that do not constitute extraordinary
cash dividends), or (iii) any rights, options or warrants to acquire any of the
foregoing or to acquire any other securities of the Company, the Exercise Rate
shall be adjusted in accordance with the formula:
E' = E x M
-----
M - F
-----
and the Exercise Price shall be decreased (but not increased) in accordance with
the following formula:
EP' = EP x E
---
E'
where:
E' = the adjusted Exercise Rate.
E = the current Exercise Rate on the record date referred to in this
paragraph (c) below.
<PAGE>
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EP' = the adjusted Exercise Price.
EP = the current Exercise Price on the record date referred to in this
paragraph (c) below.
M = the Current Market Value per share of Common Stock on the record
date referred to in this paragraph (c) below.
F = the fair market value (as determined in good faith by
the Company's board of directors) on the record date
referred to in this paragraph (c) below of the
indebtedness, assets, rights, options or warrants
distributable in respect of one share of Common Stock.
The adjustments shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If any adjustment is made pursuant to clause (iii) above of this subsection (c)
as a result of the issuance of rights, options or warrants and at the end of the
period during which any such rights, options or warrants are exercisable, not
all such rights, options or warrants shall have been exercised, the Warrants
shall be immediately readjusted as if "F" in the above formula was the fair
market value on the record date of the indebtedness or assets actually
distributed upon exercise of such rights, options or warrants divided by the
number of shares of Common Stock outstanding on the record date. Notwithstanding
anything to the contrary contained in this subsection (c), if "M-F" in the above
formula is less than $1.00 (or is a negative number) then in lieu of the
adjustment otherwise required by this subsection (c), the Company may elect to
distribute to the holders of the Warrants, upon exercise thereof, the evidences
of indebtedness, assets, rights, options or warrants which would have been
distributed to such holders had such warrants been exercised immediately prior
to the record date for such distribution.
This subsection does not apply to securities convertible into
or exchangeable or exercisable for any Common Stock referred to in subsection
(b) of this Section 5.01.
(d) Reorganization of Company. (i) If the Company, in a single
transaction or through a series of related transactions, merges, consolidates or
amalgamates with or into any other person or sells, assigns, transfers, leases,
conveys or
<PAGE>
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otherwise disposes of all or substantially all of its properties and assets to
another person or group of affiliated persons or is a party to a merger or
binding share exchange which reclassifies or changes its outstanding Common
Stock (a "Fundamental Transaction"), as a condition to consummating any such
transaction, the person formed by or surviving any such consolidation or merger
if other than the Company or the person to whom such transfer has been made (the
"Surviving Person") shall enter into a supplemental warrant agreement. The
supplemental warrant agreement shall provide that the holder of a Warrant then
outstanding may exercise it for the kind and amount of securities, cash or other
assets which such holder would have received immediately after the Fundamental
Transaction if such holder had exercised the Warrant immediately before the
effective date of the transaction (without giving effect to the Cashless
Exercise option), assuming (to the extent applicable) that such holder (i) was
not a constituent person or an affiliate of a constituent person to such
transaction, (ii) made no election with respect thereto, and (iii) was treated
alike with the plurality of non-electing holders.
(ii) Notwithstanding the foregoing, if the Company enters
into a Fundamental Transaction with another Person (other than a subsidiary of
the Company) and consideration is payable to holders of shares of Capital Stock
(or other securities or property) issuable or deliverable upon exercise of the
Warrants that are exercisable in exchange for their shares in connection with
such Fundamental Transaction which consists solely of cash, then the holders of
Warrants shall be entitled to receive distributions on the date of such event on
an equal basis with holders of such shares (or other securities issuable upon
exercise of the Warrants) as if the Warrants had been exercised immediately
prior to such event, less the Exercise Price therefor. Upon receipt of such
payment, if any, the rights of a holder of such a Warrant shall terminate and
cease and such holder's Warrants shall expire.
(iii) If this paragraph (d) applies, it shall supersede the
application of paragraph (a) of this Section 5.01.
(e) Notice to Warrant Holders; Warrant Agent. Whenever the
Exercise Rate or Exercise Price is adjusted, the Company shall promptly mail to
holders of Warrants then outstanding at the addresses appearing on the Warrant
Register a notice of the adjustment, which adjustment shall be confirmed by the
Purchasers as long as any of the Warrants are held by the Purchasers. The
Company shall file with the Warrant Agent and any other Registrar such notice
and a certificate of the
<PAGE>
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President, Chief Executive Officer or Chief Financial Officer of the Company (an
"Officer's Certificate") briefly stating the adjusted computations, the facts
requiring the adjustment and the manner of computing it. Neither the Warrant
Agent nor any such Registrar shall be under any duty or responsibility with
respect to any such certificate except to exhibit the same during normal
business hours to any holder desiring inspection thereof.
In case:
(i) the Company shall authorize the issuance to any holders
of shares of Common Stock or Affiliates of rights,
options or warrants to subscribe for or purchase shares of capital stock of the
Company or of any other subscription rights or warrants; or
(ii) the Company shall authorize the distribution to any
holders of shares of Common Stock or Affiliates of evidences of its indebtedness
or assets; or
(iii) of any consolidation or merger to which the Company is
a party and for which approval of any shareholders of the Company is required,
or of the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or a tender offer or exchange offer for
shares of Capital Stock of the Company; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(v) the Company proposes to take any action that would
require an adjustment to the Exercise Rate and/or
Exercise Price pursuant to this Section 5.01;
then the Company shall give written notice to the Warrant Agent and each of the
holders of the Warrants at its address appearing on the Warrant Register, at the
same time and in the same or a substantially similar manner as notice is given
to other holders of Common Stock.
(f) Company Determination Final. Any determination that the
Company or the Board of Directors of the Company must make pursuant to this
Section 5.01 is conclusive.
<PAGE>
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(g) Warrant Agent's Adjustment Disclaimer. The Warrant Agent
has no duty to determine when an adjustment under this Section 5.01 or any other
provision of this Agreement should be made, how it should be made or what it
should be. The Warrant Agent has no duty to determine whether a supplemental
warrant agreement under paragraph (e) need be entered into or whether any
provisions of any supplemental warrant agreement are correct. The Warrant Agent
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon exercise of Warrants. The Warrant
Agent shall not be responsible for the Company's failure to comply with this
Section 5.01 or any other provision of this Agreement.
(h) Adjustment for Tax Purposes. The Company may make such
increases in the Exercise Rate, in addition to those otherwise required by this
Section, as it considers to be advisable in order that any event treated for
Federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(i) Underlying Shares. The Company shall at all times reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock or Common Stock held in the treasury of the Company, for
the purpose of effecting the exercise of Warrants, the full number of Shares
then deliverable upon the exercise of all Warrants then outstanding and payment
of the exercise price, and the shares so deliverable shall be fully paid and
nonassessable and free from all liens and security interests.
(j) Specificity of Adjustment. Irrespective of any adjustments
in the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same number and kind of Shares per Warrant as are stated on the Warrant
Certificates initially issuable pursuant to this Agreement.
(k) Voluntary Adjustment. The Company from time to time may
increase the Exercise Rate or reduce the Exercise Price by any number and for
any period of time (provided that such period is not less than 20 Business
Days). Whenever the Exercise Rate is so increased or the Exercise Price so
reduced, the Company shall mail to holders at the addresses appearing on the
Warrant Register and file with the Warrant Agent a notice of the increase or
reduction. The Company shall give the notice at least 15 days before the date
the increased Exercise Rate or decreased Exercise Price takes effect. The notice
<PAGE>
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shall state the increased Exercise Rate or decreased Exercise Price and the
period it will be in effect. A voluntary increase in the Exercise Rate or
decrease in the Exercise Price does not otherwise change or adjust the Exercise
Rate or Exercise Price in effect as determined by this Section 5.01 or any other
provision of this Agreement.
(l) Multiple Adjustments. After an adjustment to the Exercise
Rate or Exercise Price for outstanding Warrants under this Article V, any
subsequent event requiring an adjustment under this Article V shall cause an
adjustment to the Exercise Rate or Exercise Price for outstanding Warrants as so
adjusted.
(m) Minimum Exercise Price. Notwithstanding anything to the
contrary contained in this Agreement, if the Exercise Price, as adjusted
pursuant to this Agreement (other than this Section 5.01(m)), shall be less than
the par value of the related Share, then such Exercise Price, as so adjusted,
for all purposes of this Agreement, shall be an amount equal to the par value of
such related Shares.
(n) Definitions.
"Affiliate" of any specified person means any other person
that directly or indirectly through one or more intermediaries controls or is
controlled by, or is under common control with, such specified person. For the
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling," "controlled by" and "under common control with") as used
with respect to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of, such person's capital stock,
whether outstanding on the date hereof or issued after the date hereof, and any
and all rights, warrants or options exchangeable for or convertible into such
capital stock.
"Current Market Value" per share of Common Stock of the
Company or any other security at any date means (i) if the security is not
registered under the Exchange Act, the fair market value of the security,
determined by an Independent Financial
<PAGE>
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Expert or (ii) (a) if the security is registered under the Exchange Act, the
average of the daily closing sales prices of the securities for the 20
consecutive trading days immediately preceding such date, or (b) if the security
has been registered under the Exchange Act for less than 20 consecutive trading
days immediately preceding such date, then the offering price of the security in
the transaction causing registration under the Exchange Act, in the case of each
of (ii)(a) and (ii)(b), as certified to the Warrant Agent by the President, any
Vice President or the Chief Financial Officer of the Company. The closing sales
price for each such trading day shall be: (A) in the case of a security listed
or admitted to trading on any United States national securities exchange or
quotation system, the closing sales price, regular way, on such day, or if no
sale takes place on such day, the average of the closing bid and asked prices on
such day, (B) in the case of a security not then listed or admitted to trading
on any United States national securities exchange or quotation system, the last
reported sale price on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reputable quotation source designated by the Company, (C) in the case of a
security not then listed or admitted to trading on any United States national
securities exchange or quotation system and as to which no such reported sale
price or bid and asked prices are available, the average of the reported high
bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the Borough of Manhattan, City
and State of New York customarily published on each Business Day, designated by
the Company, or, if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than 30 days prior to the date in question) for which prices have
been so reported and (D) if there are not bid and asked prices reported during
the 30 days prior to the date in question, the Current Market Value shall be
determined by the Board of Directors of the Company or an Independent Financial
Expert.
"Independent Financial Expert" means a United States
investment banking firm of national or regional standing in the United States
(i) that does not, and whose directors, officers and employees or Affiliates do
not have a direct or indirect material financial interest for its proprietary
account in the Company or any of its Affiliates and (ii) that, in the judgment
of the Board of Directors of the Company, is otherwise independent with respect
to the Company and its Affiliates and qualified to perform the task for which it
is to be engaged.
<PAGE>
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(o) When De Minimis Adjustment May Be Deferred. No adjustment
in the Exercise Rate or Exercise Price need be made unless the adjustment would
require an increase of at least 1% in the Exercise Rate. Notwithstanding the
foregoing, any adjustments that are not made shall be carried forward and taken
into account in any subsequent adjustments provided that no such adjustment
shall be deferred beyond the date on which a Warrant is exercised.
SECTION 5.02......Fractional Shares. The Company will not be
required to issue fractional Shares upon exercise of the Warrants or distribute
Share certificates that evidence fractional Shares. In the event a holder is
required by Section 2.02(c) to make a Cashless Exercise, and the Company
determines not to issue fractional Shares, the number of Shares issuable shall
be rounded up to the nearest whole number. In addition, in no event shall any
holder of Warrants be required to make any payment of a fractional cent. In lieu
of fractional Shares, the Company may pay to the registered holders of Warrant
Certificates at the time Warrants evidenced thereby are exercised as herein
provided an amount in cash equal to the same fraction of the Current Market
Value, per Share on the Business Day preceding the date the Warrant Certificates
evidencing such Warrants are surrendered for exercise. Such payments will be
made by check or by transfer to an account maintained by such registered holder
with a bank in The City of New York. If any holder surrenders for exercise more
than one Warrant Certificate, the number of Shares deliverable to such holder
may, at the option of the Company, be computed on the basis of the aggregate
amount of all the Warrants exercised by such holder.
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01......Warrant Agent. The Company hereby appoints
First Union National Bank as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein; and First Union National Bank hereby accepts such
appointment. The Warrant Agent shall have the powers and authority specifically
granted to and conferred upon it in this Agreement and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it and it shall accept in writing. The Warrant
Agent may act through one or more attorneys or agents and shall not be
responsible for any act, default, neglect or misconduct of any such agent
appointed with due care.
<PAGE>
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SECTION 6.02......Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) The Warrant Agent shall be entitled to reasonable
compensation to be agreed upon with the Company in writing for all
services rendered by it and the Company agrees promptly to pay such
compensation and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred without gross negligence or willful misconduct on its
part in connection with the services rendered by it hereunder. The
Company also agrees to indemnify the Warrant Agent and any predecessor
Warrant Agent, their directors, officers, affiliates, agents and
employees for, and to hold them and their directors, officers,
affiliates, agents and employees harmless against, any loss, liability
or expense of any nature whatsoever (including, without limitation,
reasonable fees and expenses of counsel) incurred without gross
negligence or willful misconduct on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent
hereunder and its exercise of its rights and performance of its
obligations hereunder. The obligations of the Company under this
Section 6.02 shall survive the exercise and the expiration of the
Warrant Certificates and the resignation and removal of the Warrant
Agent.
(b) In acting under this Agreement, the Warrant Agent is
acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
owners or holders of the Warrant Certificates.
(c) The Warrant Agent may consult with counsel of its
selection and any advice or written opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion.
<PAGE>
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(d) The Warrant Agent shall be fully protected and shall incur
no liability for or in respect of any action taken or omitted to be
taken or thing suffered by it in reliance upon any Warrant Certificate,
notice, direction, consent, certificate, affidavit, opinion of counsel,
instruction, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper
parties.
(e) The Warrant Agent, and its officers, directors, affiliates
and employees ("Related Parties"), may become the owners of, or acquire
any interest in, Warrant Certificates, shares or other obligations of
the Company with the same rights that it or they would have it if were
not the Warrant Agent hereunder and, to the extent permitted by
applicable law, it or they 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 holders of shares or
other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Agreement shall be deemed to
prevent the Warrant Agent or such Related Parties from acting in any
other capacity for the Company.
(f) The Warrant Agent shall not be under any liability for
interest on, and shall not be required to invest, any monies at any
time received by it pursuant to any of the provisions of this Agreement
or of the Warrant Certificates.
(g) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement (or any term or provision
hereof) or the execution and delivery hereof (except the due execution
and delivery hereof by the Warrant Agent) or in respect of the validity
or execution of any Warrant Certificate (except its authentication
thereof).
(h) The recitals and other statements contained herein and in
the Warrant Certificates (except as to the Warrant Agent's
authentication thereon) shall be taken as the statements of the Company
and the Warrant Agent assumes no responsibility for the correctness of
the same. The Warrant Agent does not make any representation as to the
validity or sufficiency of this Agreement or the Warrant Certificates,
except for its due execution and delivery of this Agreement; provided,
however, that the Warrant Agent shall not be relieved of its duty to
authenticate
<PAGE>
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the Warrant Certificates as authorized by this Agreement. The Warrant Agent
shall not be accountable for the use or application by the Company of the
proceeds of the exercise of any Warrant.
(i) Before the Warrant Agent acts or refrains from acting with
respect to any matter contemplated by this Warrant Agreement, it may
require:
(1) an Officer's Certificate stating on behalf of the
Company that, in the opinion of the signer, all conditions
precedent, if any, provided for in this Warrant Agreement
relating to the proposed action have been complied with; and
(2) if reasonably necessary in the sole judgment of
the Warrant Agent, an opinion of counsel for the Company
stating that, in the opinion of such counsel, all such
conditions precedent have been complied with provided that
such matter is one customarily opined on by counsel.
Each Officer's Certificate or, if requested, an opinion of
counsel with respect to compliance with a condition or covenant
provided for in this Warrant Agreement shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been complied
with.
<PAGE>
-28-
(j) The Warrant Agent shall be obligated to perform such
duties as are herein and in the Warrant Certificates specifically set
forth and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in the Warrant
Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at
law or otherwise or, except as provided in Section 7.02 hereof, to make
any demand upon the Company.
(k) Unless otherwise specifically provided herein, any order,
certificate, notice, request, direction or other communication from the
Company made or given under any provision of this Agreement shall be
sufficient if signed by its chairman of the Board of Directors, its
president, its treasurer, its controller or any vice president or its
secretary or any assistant secretary.
(l) The Warrant Agent shall have no responsibility in respect
of any adjustment pursuant to Article V hereof.
(m) The Company agrees that it will perform, execute,
acknowledge and deliver, or cause to be performed, executed,
acknowledged and delivered, all such further and other acts,
instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing by the Warrant Agent of the
provisions of this Agreement.
(n) The Warrant Agent is hereby authorized and directed to
accept written instructions with respect to the performance of its
duties hereunder from any one of the chairman of the Board of
Directors, the president, the treasurer, the controller, any vice
president or the secretary or assistant secretary of the Company or any
other officer or official of the Company reasonably believed to be
authorized to give such instructions and to apply to such officers or
officials for advice or instructions in
<PAGE>
-29-
connection with its duties, and it shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with
instructions with respect to any matter arising in connection with the
Warrant Agent's duties and obligations arising under this Agreement or for
any delay in acting while awaiting instructions. Any application by the
Warrant Agent for written instructions from the Company may, at the option
of the Warrant Agent, set forth in writing any action proposed to be taken
or omitted by the Warrant Agent under this Agreement and the date on or
after which such action shall be taken or such omission shall be effective.
The Warrant Agent shall not be liable for any action taken by, or omission
of, the Warrant Agent in accordance with a proposal included in any such
application on or after the date specified in such application (which date
shall not be less than five Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to taking any
such action (or the effective date in the case of an omission), the Warrant
Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(o) Whenever in the performance of its duties under this
Agreement the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a
certificate signed on behalf of the Company by any one of the chairman
of the Board of Directors, the president, the treasurer, the
controller, any vice president or the secretary or assistant secretary
of the Company or any other officer or official of the Company
reasonably believed to be authorized to give such instructions and
delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance
upon such certificate.
(p) The Warrant Agent shall not be required to risk or expend
its own funds in the performance of its obligations and duties
hereunder.
<PAGE>
-30-
(q) The Warrant Agent will be liable hereunder to the Company
and any other person or entity only for its own gross negligence, bad faith or
willful misconduct or that of any agent or attorney appointed without due care.
(r) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Warrant Agent be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including, but not
limited to, lost profits).
SECTION 6.03......Resignation and Removal and Appointment of
Successor. (a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder.
(b) The Warrant Agent may at any time resign as Warrant Agent
by giving written notice 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 be at least 30 days after the date on
which such notice is given unless the Company agrees to accept less notice. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Warrant Agent, qualified as provided in Section 6.03(d) hereof, by
written instrument in duplicate signed on behalf of the Company, one copy of
which shall be delivered to the resigning Warrant Agent and one copy to the
successor Warrant Agent. As provided in Section 6.03(d) hereof, such resignation
shall become effective upon the earlier of (x) the acceptance of the appointment
by the successor Warrant Agent or (y) 30 days after receipt by the Company of
notice of such resignation. The Company may, at any time and for any reason, and
shall, upon any event set forth in the next succeeding sentence, remove the
Warrant Agent and appoint a successor Warrant Agent by written instrument in
duplicate, specifying such removal and the date on which it is intended to
become effective, signed on behalf of the Company, one copy of which shall be
delivered to the Warrant Agent being removed and one copy to the successor
Warrant Agent. The Warrant Agent shall be removed as aforesaid if it shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Warrant Agent or of its property shall be appointed, or any
public officer shall take charge or control of it or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation. Any removal of
the Warrant Agent and any appointment of a successor Warrant Agent shall become
effective upon acceptance of appointment by the successor Warrant Agent as
provided in Section 6.03(d). As
<PAGE>
-31-
soon as practicable after appointment of the successor Warrant Agent, the
Company shall cause written notice of the change in the Warrant Agent to be
given to each of the registered holders of the Warrants in the manner provided
for in Section 8.04 hereof.
(c) Upon resignation or removal of the Warrant Agent, if the
Company shall fail to appoint a successor Warrant Agent within a period of 60
days after receipt of such notice of resignation or removal, then the holder of
any Warrant Certificate or the retiring Warrant Agent may apply to a court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to the Warrant Agent, either by the Company
or by such a court, the duties of the Warrant Agent shall be carried out by the
Company.
(d) Any successor Warrant Agent, whether appointed by the
Company or by a court, shall be a bank or trust company in good standing,
incorporated under the laws of the United States of America or any State thereof
and having, at the time of its appointment, a combined capital surplus of at
least $250 million. Such successor Warrant Agent shall execute and deliver to
its predecessor and to the Company an instrument accepting such appointment
hereunder and all the provisions of this Agreement, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to (i) transfer and
deliver, and such successor Warrant Agent shall be entitled to receive, all
securities, records or other property on deposit with or held by such
predecessor as Warrant Agent hereunder and (ii) upon payment of the amounts then
due it pursuant to Section 6.02(a) hereof, pay over, and such successor Warrant
Agent shall be entitled to receive, all monies deposited with or held by any
predecessor Warrant Agent hereunder.
(e) Any corporation or bank into which the Warrant Agent
hereunder may be merged or converted, or any corporation or bank with which the
Warrant Agent may be consolidated, or any corporation or bank resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a party,
or any corporation or bank to which the Warrant Agent shall sell or otherwise
transfer all or substantially all of its corporate trust business, shall be the
successor to the Warrant Agent under this Agreement (provided that such
corporation or
<PAGE>
-32-
bank shall be qualified as aforesaid) without the execution or filing of any
document or any further act on the part of any of the parties hereto.
(f) No Warrant Agent under this Warrant Agreement shall be
personally liable for any action or omission of any successor Warrant Agent.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01......Amendment. This Agreement and the terms of
the Warrants may be amended by the Company and the Warrant Agent, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, or to effect any assumptions
of the Company's obligations hereunder and thereunder by a successor corporation
under the circumstances described in Section 5.01(d) hereof or in any other
manner which the Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of the Warrant Certificates.
The Company and the Warrant Agent may amend, modify or
supplement this Agreement and the terms of the Warrants, and waivers to
departures from the terms hereof and thereof may be given, with the consent of
the Requisite Warrant Holders (as defined below) for the purpose of adding any
provision to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the holders of the
outstanding Warrants; provided, however, that no such modification that
increases the Exercise Price or decreases the Exercise Rate reduces the period
of time during which the Warrants are exercisable hereunder, or effects any
change to this Section 7.01 may be made with respect to any Warrant without the
consent of the holder of such Warrant. "Requisite Warrant Holders" means (i) in
the case of any amendment, modification, supplement or waiver affecting Warrant
Holders, the holders of a majority in number of the outstanding Warrants so
affected, or (ii) in the case of any amendment, modification, supplement or
waiver affecting Warrant Holders or the underlying securities, a majority in
number of Shares represented by the Warrants that would be issuable assuming
exercise thereof at the time such amendment, modification, supplement or waiver
is voted upon. Notwithstanding any other provision of this Agreement, the
Warrant Agent's consent must
<PAGE>
-33-
be obtained regarding any supplement or amendment which alters the Warrant
Agent's rights or duties (it being expressly understood that the foregoing shall
not be in derogation of the right of the Company to remove the Warrant Agent in
accordance with Section 6.03 hereof). For purposes of any amendment,
modification or waiver hereunder, Warrants held by the Company or any of its
Affiliates shall be disregarded.
Any modification or amendment made in accordance with this
Agreement will be conclusive and binding on all present and future holders of
Warrant Certificates whether or not they have consented to such modification or
amendment or waiver and whether or not notation of such modification or
amendment is made upon such Warrant Certificates. Any instrument given by or on
behalf of any holder of a Warrant Certificate in connection with any consent to
any modification or amendment will be conclusive and binding on all subsequent
holders of such Warrant Certificate.
SECTION 7.02......Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed
to the Company by the holder of a Warrant Certificate pursuant to the provisions
hereof or of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.
SECTION 7.03......Addresses for Notices to Parties and for
Transmission of Documents. All notices hereunder to the parties hereto shall be
given by certified or registered mail, postage prepaid, or by facsimile
transmission, confirmed by first class mail, postage prepaid, addressed to any
party hereto as follows:
To the Company:
SpectraSite Holdings, Inc.
100 Regency Parkway, Suite 400
Cary, North Carolina 27511
Attention: David P. Tomick
Facsimile: (919) 388-9475
<PAGE>
-34-
with a copy to:
Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
Attention: Timothy J. Kelley
Facsimile: (202) 776-2222
To the Warrant Agent:
First Union National Bank
1525 West W.T. Harris Boulevard
3C3
NC1153
Charlotte, North Carolina 28262-1153
Attention: Jim Clark
Facsimile: (704) 590-7598
Telephone: (704) 590-7383
or at any other address of which either of the foregoing shall have notified the
other in writing.
Any notice shall be deemed to have been given or made five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid, or when receipt is acknowledged, if sent by facsimile transmission.
SECTION 7.04......Notices to Holders. Notices to holders of
Warrants shall be mailed to such holders at the addresses of such holders as
they appear in the Warrant Register. Any such notice shall be sufficiently given
if sent by first-class mail, postage prepaid.
SECTION 7.05......APPLICABLE LAW. THE VALIDITY, INTERPRETATION
AND PERFORMANCE OF THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER
AND OF THE RESPECTIVE TERMS AND PROVISIONS THEREOF SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
SECTION 7.06......Persons Having Rights Under Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended,
<PAGE>
-35-
or shall be construed, to confer upon, or give to, any person or corporation
other than the Company, the Warrant Agent and the holders of the Warrant
Certificates any right, remedy or claim under or by reason of this Agreement or
of any covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this Agreement
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their successors and of the holders of the Warrant
Certificates.
SECTION 7.07......Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 7.08......Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 7.09......Availability of Equitable Remedies. Since a
breach of the provisions of this Agreement could not adequately be compensated
by money damages, holders of Warrants shall be entitled, in addition to any
other right or remedy available to them, to an injunction restraining such
breach or a threatened breach and to specific performance of any such provision
of this Agreement, and in either case no bond or other security shall be
required in connection therewith, and the parties hereby consent to such
injunction and to the ordering of specific performance.
SECTION 7.10......Obtaining of Governmental Approvals. The
Company will from time to time take all action required to be taken by it which
may be necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities which may be or become
requisite in connection with the issuance, sale, and delivery of the Warrant
Certificates, the exercise of the Warrants or the issuance of the Shares issued
upon exercise of the Warrants.
[Signature Page Follows]
<PAGE>
S-1
IN WITNESS WHEREOF, this Warrant Agreement has been duly
executed by the parties hereto as of the day and year first above written.
SPECTRASITE HOLDINGS, INC.
By: /s/ David P. Tomick
------------------------
Name: David P. Tomick
Title:Executive Vice
President and Chief
Financial Officer
<PAGE>
-2-
FIRST UNION NATIONAL BANK,
as Warrant Agent
By: /s/ Scott Cislo
-------------------------
Name:Scott Cislor
Title:Trust Officer
<PAGE>
EXHIBIT A
[FORM OF SERIES I WARRANT CERTIFICATE]
[FACE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
A-1
<PAGE>
No. [ ] [ ] Warrants
SERIES I WARRANT CERTIFICATE
SPECTRASITE HOLDINGS, INC.
This Warrant Certificate certifies that [ ], or registered
assigns, is the registered holder of [ ] Warrants (the "Warrants") to purchase
shares of Common Stock, par value $0.001 per share (the "Common Stock"), of
SPECTRASITE HOLDINGS, INC., a Delaware corporation (the "Company", which term
includes its successors and assigns). Each Warrant entitles the holder to
purchase from the Company at any time from 9:00 a.m. New York City time on or
after the Exercisability Date until 5:00 p.m., New York City time, on November
20, 2007 (the "Expiration Date"), one fully paid and non-assessable share of
Common Stock, registered with the transfer agent for the Common Stock, subject
to adjustment as provided in Article V of the Warrant Agreement, at the exercise
price of $21.56 for each share purchased (the "Exercise Price"), subject to
adjustment as provided in Article V of the Warrant Agreement (the shares of
Common Stock purchasable upon exercise of a Warrant being herein referred to as
the "Shares" and, unless the context otherwise requires, such term shall also
mean the other securities or property purchasable and deliverable upon exercise
of a Warrant as provided in the Warrant Agreement), upon surrender of this
Warrant Certificate and payment of the Exercise Price (i) by wire transfer or
certified check, (ii) pursuant to the next sentence or (iii) in any combination
of (i) and (ii), at any office or agency maintained for that purpose by the
Company (the "Warrant Agent Office"), subject to the conditions set forth herein
and in the Warrant Agreement. A Warrant may also be exercised solely by the
surrender of the Warrant, and without the payment of the Exercise Price in cash,
for such number of Shares equal to the product of (1) the number of Shares for
which such Warrant is exercisable with payment of the Exercise Price as of the
date of exercise and (2) the Cashless Exercise Ratio. For purposes of this
Warrant, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of
which is the excess of the Current Market Value per share of the Common Stock on
the date of exercise over the Exercise Price per share as of the date of
exercise and the denominator of which is the Current Market Value per share of
the Common Stock on the date of exercise. An exercise of a Warrant in accordance
with the immediately preceding sentences is herein called a "Cashless Exercise."
Upon surrender of a Warrant Certificate representing more than one Warrant in
connection with the Holder's option to elect a Cashless Exercise, the number of
Shares deliverable upon a Cashless Exercise shall be equal to the Cashless
Exercise Ratio multiplied by the product
A-2
<PAGE>
of (a) the number of Warrants that the holder specifies is to be exercised
pursuant to a Cashless Exercise and (b) the number of Shares for which such
Warrant is then exercisable (without giving effect to the Cashless Exercise
Option). If the Company has not effected the registration under the Securities
Act of the offer and sale of the Shares by the Company to the holders of the
Warrants upon the exercise thereof, the Company may elect to require that
holders of the Warrants effect the exercise of the Warrants solely pursuant to
the Cashless Exercise option and may also amend the Warrants to eliminate the
requirement for payment of the Exercise Price with respect to such Cashless
Exercise option. All provisions of the Warrant Agreement shall be applicable
with respect to an exercise of a Warrant Certificate pursuant to a Cashless
Exercise for less than the full number of Warrants represented thereby.
Capitalized terms used herein without being defined herein shall have the
definitions ascribed to such terms in the Warrant Agreement.
No exercise of the Warrants may be effected which does not
call for the issuance of a number of shares of Common Stock in direct proportion
(subject only to rounding with respect to fractional shares) to the aggregate
number of shares of Common Stock then issuable upon exercise of the Warrants
evidenced hereby.
The Company has initially designated the principal corporate
trust office of the Warrant Agent in Charlotte, North Carolina as the initial
Warrant Agent Office. The number of Shares issuable upon exercise of the
Warrants ("Exercise Rate") is subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
Any Warrants not exercised on or prior to 5:00 p.m., New York
City time, on November 20, 2007 shall thereafter be void.
If the Company merges, amalgamates or consolidates with or
into, or sells all or substantially all of its property and assets to, another
Person solely for cash, the holders of Warrants shall be entitled to receive
distributions on the date of such event on an equal basis with holders of Shares
(or other securities issuable upon exercise of the Warrants) as if the Warrants
had been exercised immediately prior to such event (less the Exercise Price).
Reference is hereby made to the further provisions on the
reverse hereof which provisions shall for all purposes have the same effect as
though fully set forth at this place.
<PAGE>
A-3
This Warrant Certificate shall not be valid unless
authenticated by the Warrant Agent, as such term is used in the Warrant
Agreement.
THIS WARRANT CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
A-4
<PAGE>
WITNESS the seal of the Company and signatures of its duly
authorized officers.
Dated:
SPECTRASITE HOLDINGS, INC.
By:
--------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
A-5
<PAGE>
Certificate of Authentication:
This is one of the Warrants referred to in the within mentioned Warrant
Agreement:
FIRST UNION NATIONAL BANK,
as Warrant Agent
By:
--------------------------------
Authorized Signatory
A-6
<PAGE>
[FORM OF SERIES I WARRANT CERTIFICATE]
[REVERSE]
SPECTRASITE HOLDINGS, INC.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring at 5:00 p.m., New York City time,
on November 20, 2007 (the "Expiration Date"), each of which represents the right
to purchase at any time on or after the Exercisability Date (as defined in the
Warrant Agreement) and on or prior to the Expiration Date one share of Common
Stock, subject to adjustment as set forth in the Warrant Agreement. The Warrants
are issued pursuant to a Warrant Agreement dated as of November 20, 2000 (the
"Warrant Agreement"), duly executed and delivered by the Company to First Union
National Bank, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement
is hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company
and the holders (the words "holders" or holder" meaning the registered holders
or registered holder) of the Warrants.
Warrants may be exercised by (i) surrendering at any Warrant
Agent Office this Warrant Certificate with the form of Election to Exercise set
forth hereon duly completed and executed and (ii) to the extent such exercise is
not being effected through a Cashless Exercise by paying in full the Warrant
Exercise Price for each such Warrant exercised and any other amounts required to
be paid pursuant to the Warrant Agreement.
If all of the items referred to in the preceding paragraph are
received by the Warrant Agent at or prior to 11:00 a.m., New York City time, on
a Business Day, the exercise of the Warrant to which such items relate will be
effective on such Business Day. If any items referred to in the preceding
paragraph are received after 11:00 a.m., New York City time, on a Business Day,
the exercise of the Warrants to which such item relates will be deemed to be
effective on the next succeeding Business Day. Notwithstanding the foregoing, in
the case of an exercise of Warrants on November 20, 2007, if all of the items
referred to in the preceding paragraph are received by the Warrant Agent at or
prior to 5:00 p.m., New York City time, on such Expiration Date, the exercise of
the Warrants to which such items relate will be effective on the Expiration
Date.
A-7
<PAGE>
As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue or cause to be issued to or upon the written
order of the registered holder of this Warrant Certificate, a certificate or
certificates evidencing the Share or Shares to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed by
such holder pursuant to the Election to Exercise, as set forth on the reverse of
this Warrant Certificate. Such certificate or certificates evidencing the Share
or Shares shall be deemed to have been issued and any persons who are designated
to be named therein shall be deemed to have become the holder of record of such
Share or Shares as of the close of business on the date upon which the exercise
of this Warrant was deemed to be effective as provided in the preceding
paragraph.
The Company will not be required to issue fractional shares of
Common Stock upon exercise of the Warrants or distribute Share certificates that
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered Holder of this Warrant
Certificate at the time such Warrant Certificate is exercised an amount in cash
equal to the same fraction of the Current Market Value per share of Common Stock
on the Business Day preceding the date this Warrant Certificate is surrendered
for exercise.
Warrant Certificates, when surrendered at any office or agency
maintained by the Company for that purpose by the registered holder thereof in
person or by legal representative or attorney duly authorized in writing, may be
exchanged for a new Warrant Certificate or new Warrant Certificates evidencing
in the aggregate a like number of Warrants, in the manner and subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of this
Warrant Certificate at any office or agency maintained by the Company for that
purpose, a new Warrant Certificate evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the
A-8
<PAGE>
Company nor the Warrant Agent shall be affected by any notice to the contrary.
The term "Business Day" shall mean any day on which (i) banks
in New York City and Charlotte, North Carolina and (ii) the principal U.S.
securities exchange or market, if any, on which the Common Stock is listed or
admitted to trading are open for business.
The Shares are entitled to the benefits of a registration
rights agreement (the "Registration Rights Agreement"). The Registration Rights
Agreement provides the holders of Shares with the right, subject to the
conditions and limitations contained therein, to include the Shares in a shelf
registration for a specified period, to a demand registration following the
shelf registration and to include the Shares in certain registration statements
filed by the Company for its account or for the account of any of its Common
Stockholders.
A-9
<PAGE>
(FORM OF ELECTION TO EXERCISE)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise [ ] of
the Warrants represented by this Warrant Certificate and purchase the whole
number of Shares issuable upon the exercise of such Warrants and herewith
tenders payment for such Shares as follows:
$[ ] in cash by wire transfer of immediately available funds;
or by surrender of Warrants pursuant to a Cashless Exercise (as defined in the
Warrant Agreement) for [ ] shares of Common Stock at the current Cashless
Exercise Ratio.
The undersigned requests that a certificate representing such
Shares be registered in the name of ____________________ whose address is
_________________________ and that such shares be delivered to
__________________________ whose address is __________________________. Any cash
payments to be paid in lieu of a fractional Share should be made to
__________________ whose address is ________________________ and the check
representing payment thereof should be delivered to ______________________ whose
address is ___________________.
Dated __________________, ____
Name of holder of
Warrant Certificate: _______________________________
......... (Please Print)
Tax Identification or
Social Security Number: ____________________________
Address: ___________________________________________
-------------------------------------------
Signature: _________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and if the certificate representing the
Shares or any Warrant Certificate representing Warrants not exercised is to
be registered in a name other than that in which this Warrant Certificate
is registered, or if any cash payment to be paid in lieu of a fractional
share is to be made to a person other than the registered holder of this
Warrant Certificate, the signature of the holder hereof must be guaranteed
as provided in the Warrant Agreement.
A-10
<PAGE>
Dated ____________________, ___
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
[FORM OF ASSIGNMENT]
For value received _______________________ hereby sells,
assigns and transfers unto _____________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint __________________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated ____________________, ____
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
A-11
<PAGE>
EXHIBIT B
[FORM OF SERIES II WARRANT CERTIFICATE]
[FACE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
B-1
<PAGE>
No. [ ] [ ] Warrants
SERIES II WARRANT CERTIFICATE
SPECTRASITE HOLDINGS, INC.
This Warrant Certificate certifies that [ ], or registered
assigns, is the registered holder of [ ] Warrants (the "Warrants") to purchase
shares of Common Stock, par value $0.001 per share (the "Common Stock"), of
SPECTRASITE HOLDINGS, INC., a Delaware corporation (the "Company", which term
includes its successors and assigns). Each Warrant entitles the holder to
purchase from the Company at any time from 9:00 a.m. New York City time on or
after the Exercisability Date until 5:00 p.m., New York City time, on November
20, 2007 (the "Expiration Date"), one fully paid and non-assessable share of
Common Stock, registered with the transfer agent for the Common Stock, subject
to adjustment as provided in Article V of the Warrant Agreement, at the exercise
price of $23.86 for each share purchased (the "Exercise Price"), subject to
adjustment as provided in Article V of the Warrant Agreement (the shares of
Common Stock purchasable upon exercise of a Warrant being herein referred to as
the "Shares" and, unless the context otherwise requires, such term shall also
mean the other securities or property purchasable and deliverable upon exercise
of a Warrant as provided in the Warrant Agreement), upon surrender of this
Warrant Certificate and payment of the Exercise Price (i) by wire transfer or
certified check, (ii) pursuant to the next sentence or (iii) in any combination
of (i) and (ii), at any office or agency maintained for that purpose by the
Company (the "Warrant Agent Office"), subject to the conditions set forth herein
and in the Warrant Agreement. A Warrant may also be exercised solely by the
surrender of the Warrant, and without the payment of the Exercise Price in cash,
for such number of Shares equal to the product of (1) the number of Shares for
which such Warrant is exercisable with payment of the Exercise Price as of the
date of exercise and (2) the Cashless Exercise Ratio. For purposes of this
Warrant, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of
which is the excess of the Current Market Value per share of the Common Stock on
the date of exercise over the Exercise Price per share as of the date of
exercise and the denominator of which is the Current Market Value per share of
the Common Stock on the date of exercise. An exercise of a Warrant in accordance
with the immediately preceding sentences is herein called a "Cashless Exercise."
Upon surrender of a Warrant Certificate representing more than one Warrant in
connection with the Holder's option to elect a Cashless Exercise, the number of
Shares deliverable upon a Cashless Exercise shall be equal to the Cashless
Exercise Ratio multiplied by the product
B-2
<PAGE>
of (a) the number of Warrants that the holder specifies is to be exercised
pursuant to a Cashless Exercise and (b) the number of Shares for which such
Warrant is then exercisable (without giving effect to the Cashless Exercise
Option). If the Company has not effected the registration under the Securities
Act of the offer and sale of the Shares by the Company to the holders of the
Warrants upon the exercise thereof, the Company may elect to require that
holders of the Warrants effect the exercise of the Warrants solely pursuant to
the Cashless Exercise option and may also amend the Warrants to eliminate the
requirement for payment of the Exercise Price with respect to such Cashless
Exercise option. All provisions of the Warrant Agreement shall be applicable
with respect to an exercise of a Warrant Certificate pursuant to a Cashless
Exercise for less than the full number of Warrants represented thereby.
Capitalized terms used herein without being defined herein shall have the
definitions ascribed to such terms in the Warrant Agreement.
No exercise of the Warrants may be effected which does not
call for the issuance of a number of shares of Common Stock in direct proportion
(subject only to rounding with respect to fractional shares) to the aggregate
number of shares of Common Stock then issuable upon exercise of the Warrants
evidenced hereby.
The Company has initially designated the principal corporate
trust office of the Warrant Agent in Charlotte, North Carolina as the initial
Warrant Agent Office. The number of Shares issuable upon exercise of the
Warrants ("Exercise Rate") is subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
Any Warrants not exercised on or prior to 5:00 p.m., New York
City time, on November 20, 2007 shall thereafter be void.
If the Company merges, amalgamates or consolidates with or
into, or sells all or substantially all of its property and assets to, another
Person solely for cash, the holders of Warrants shall be entitled to receive
distributions on the date of such event on an equal basis with holders of Shares
(or other securities issuable upon exercise of the Warrants) as if the Warrants
had been exercised immediately prior to such event (less the Exercise Price).
Reference is hereby made to the further provisions on the
reverse hereof which provisions shall for all purposes have the same effect as
though fully set forth at this place.
B-3
<PAGE>
This Warrant Certificate shall not be valid unless
authenticated by the Warrant Agent, as such term is used in the Warrant
Agreement.
THIS WARRANT CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
B-4
<PAGE>
WITNESS the seal of the Company and signatures of its duly
authorized officers.
Dated:
SPECTRASITE HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
B-5
<PAGE>
Certificate of Authentication:
This is one of the Warrants referred to in the within mentioned Warrant
Agreement:
FIRST UNION NATIONAL BANK,
as Warrant Agent
By:
----------------------------------
Authorized Signatory
B-6
<PAGE>
[FORM OF SERIES II WARRANT CERTIFICATE]
[REVERSE]
SPECTRASITE HOLDINGS, INC.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring at 5:00 p.m., New York City time,
on November 20, 2007 (the "Expiration Date"), each of which represents the right
to purchase at any time on or after the Exercisability Date (as defined in the
Warrant Agreement) and on or prior to the Expiration Date one share of Common
Stock, subject to adjustment as set forth in the Warrant Agreement. The Warrants
are issued pursuant to a Warrant Agreement dated as of November 20, 2000 (the
"Warrant Agreement"), duly executed and delivered by the Company to First Union
National Bank, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement
is hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company
and the holders (the words "holders" or holder" meaning the registered holders
or registered holder) of the Warrants.
Warrants may be exercised by (i) surrendering at any Warrant
Agent Office this Warrant Certificate with the form of Election to Exercise set
forth hereon duly completed and executed and (ii) to the extent such exercise is
not being effected through a Cashless Exercise by paying in full the Warrant
Exercise Price for each such Warrant exercised and any other amounts required to
be paid pursuant to the Warrant Agreement.
If all of the items referred to in the preceding paragraph are
received by the Warrant Agent at or prior to 11:00 a.m., New York City time, on
a Business Day, the exercise of the Warrant to which such items relate will be
effective on such Business Day. If any items referred to in the preceding
paragraph are received after 11:00 a.m., New York City time, on a Business Day,
the exercise of the Warrants to which such item relates will be deemed to be
effective on the next succeeding Business Day. Notwithstanding the foregoing, in
the case of an exercise of Warrants on November 20, 2007, if all of the items
referred to in the preceding paragraph are received by the Warrant Agent at or
prior to 5:00 p.m., New York City time, on such Expiration Date, the exercise of
the Warrants to which such items relate will be effective on the Expiration
Date.
B-7
<PAGE>
As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue or cause to be issued to or upon the written
order of the registered holder of this Warrant Certificate, a certificate or
certificates evidencing the Share or Shares to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed by
such holder pursuant to the Election to Exercise, as set forth on the reverse of
this Warrant Certificate. Such certificate or certificates evidencing the Share
or Shares shall be deemed to have been issued and any persons who are designated
to be named therein shall be deemed to have become the holder of record of such
Share or Shares as of the close of business on the date upon which the exercise
of this Warrant was deemed to be effective as provided in the preceding
paragraph.
The Company will not be required to issue fractional shares of
Common Stock upon exercise of the Warrants or distribute Share certificates that
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered Holder of this Warrant
Certificate at the time such Warrant Certificate is exercised an amount in cash
equal to the same fraction of the Current Market Value per share of Common Stock
on the Business Day preceding the date this Warrant Certificate is surrendered
for exercise.
Warrant Certificates, when surrendered at any office or agency
maintained by the Company for that purpose by the registered holder thereof in
person or by legal representative or attorney duly authorized in writing, may be
exchanged for a new Warrant Certificate or new Warrant Certificates evidencing
in the aggregate a like number of Warrants, in the manner and subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of this
Warrant Certificate at any office or agency maintained by the Company for that
purpose, a new Warrant Certificate evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither
B-8
<PAGE>
the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
The term "Business Day" shall mean any day on which (i) banks
in New York City and Charlotte, North Carolina (ii) the principal U.S.
securities exchange or market, if any, on which the Common Stock is listed or
admitted to trading are open for business.
The Shares are entitled to the benefits of a registration
rights agreement (the "Registration Rights Agreement"). The Registration Rights
Agreement provides the holders of Shares with the right, subject to the
conditions and limitations contained therein, to include the Shares in a shelf
registration for a specified period, to a demand registration following the
shelf registration and to include the Shares in certain registration statements
filed by the Company for its account or for the account of any of its Common
Stockholders.
B-9
<PAGE>
(FORM OF ELECTION TO EXERCISE)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise [ ] of
the Warrants represented by this Warrant Certificate and purchase the whole
number of Shares issuable upon the exercise of such Warrants and herewith
tenders payment for such Shares as follows:
$[ ] in cash by wire transfer of immediately available funds;
or by surrender of Warrants pursuant to a Cashless Exercise (as defined in the
Warrant Agreement) for [ ] shares of Common Stock at the current Cashless
Exercise Ratio.
The undersigned requests that a certificate representing such
Shares be registered in the name of ____________________ whose address is
_________________________ and that such shares be delivered to
__________________________ whose address is __________________________. Any cash
payments to be paid in lieu of a fractional Share should be made to
__________________ whose address is ________________________ and the check
representing payment thereof should be delivered to ______________________ whose
address is ___________________.
Dated __________________, ____
Name of holder of
Warrant Certificate: _______________________________
(Please Print)
Tax Identification or
Social Security Number: ____________________________
Address: ___________________________________________
-------------------------------------------
Signature: _________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and if the certificate representing the
Shares or any Warrant Certificate representing Warrants not exercised is to
be registered in a name other than that in which this Warrant Certificate
is registered, or if any cash payment to be paid in lieu of a fractional
share is to be made to a person other than the registered holder of this
Warrant Certificate, the signature of the holder hereof must be guaranteed
as provided in the Warrant Agreement.
B-10
<PAGE>
Dated ____________________, ___
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
[FORM OF ASSIGNMENT]
For value received _______________________ hereby sells,
assigns and transfers unto _____________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint __________________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated ____________________, ____
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
B-11
<PAGE>
EXHIBIT C
[FORM OF SERIES III WARRANT CERTIFICATE]
[FACE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
C-1
<PAGE>
No. [ ][ ] Warrants
SERIES III WARRANT CERTIFICATE
SPECTRASITE HOLDINGS, INC.
This Warrant Certificate certifies that [ ], or registered
assigns, is the registered holder of [ ] Warrants (the "Warrants") to purchase
shares of Common Stock, par value $0.001 per share (the "Common Stock"), of
SPECTRASITE HOLDINGS, INC., a Delaware corporation (the "Company", which term
includes its successors and assigns). Each Warrant entitles the holder to
purchase from the Company at any time from 9:00 a.m. New York City time on or
after the Exercisability Date until 5:00 p.m., New York City time, on November
20, 2007 (the "Expiration Date"), one fully paid and non-assessable share of
Common Stock, registered with the transfer agent for the Common Stock, subject
to adjustment as provided in Article V of the Warrant Agreement, at the exercise
price of $28.00 for each share purchased (the "Exercise Price"), subject to
adjustment as provided in Article V of the Warrant Agreement (the shares of
Common Stock purchasable upon exercise of a Warrant being herein referred to as
the "Shares" and, unless the context otherwise requires, such term shall also
mean the other securities or property purchasable and deliverable upon exercise
of a Warrant as provided in the Warrant Agreement), upon surrender of this
Warrant Certificate and payment of the Exercise Price (i) by wire transfer or
certified check, (ii) pursuant to the next sentence or (iii) in any combination
of (i) and (ii), at any office or agency maintained for that purpose by the
Company (the "Warrant Agent Office"), subject to the conditions set forth herein
and in the Warrant Agreement. A Warrant may also be exercised solely by the
surrender of the Warrant, and without the payment of the Exercise Price in cash,
for such number of Shares equal to the product of (1) the number of Shares for
which such Warrant is exercisable with payment of the Exercise Price as of the
date of exercise and (2) the Cashless Exercise Ratio. For purposes of this
Warrant, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of
which is the excess of the Current Market Value per share of the Common Stock on
the date of exercise over the Exercise Price per share as of the date of
exercise and the denominator of which is the Current Market Value per share of
the Common Stock on the date of exercise. An exercise of a Warrant in accordance
with the immediately preceding sentences is herein called a "Cashless Exercise."
Upon surrender of a Warrant Certificate representing more than one Warrant in
connection with the Holder's option to elect a Cashless Exercise, the number of
Shares deliverable upon a Cashless Exercise shall be equal to the Cashless
Exercise Ratio multiplied by the
C-2
<PAGE>
product of (a) the number of Warrants that the holder specifies is to be
exercised pursuant to a Cashless Exercise and (b) the number of Shares for which
such Warrant is then exercisable (without giving effect to the Cashless Exercise
Option). If the Company has not effected the registration under the Securities
Act of the offer and sale of the Shares by the Company to the holders of the
Warrants upon the exercise thereof, the Company may elect to require that
holders of the Warrants effect the exercise of the Warrants solely pursuant to
the Cashless Exercise option and may also amend the Warrants to eliminate the
requirement for payment of the Exercise Price with respect to such Cashless
Exercise option. All provisions of the Warrant Agreement shall be applicable
with respect to an exercise of a Warrant Certificate pursuant to a Cashless
Exercise for less than the full number of Warrants represented thereby.
Capitalized terms used herein without being defined herein shall have the
definitions ascribed to such terms in the Warrant Agreement.
No exercise of the Warrants may be effected which does not
call for the issuance of a number of shares of Common Stock in direct proportion
(subject only to rounding with respect to fractional shares) to the aggregate
number of shares of Common Stock then issuable upon exercise of the Warrants
evidenced hereby.
The Company has initially designated the principal corporate
trust office of the Warrant Agent in Charlotte, North Carolina as the initial
Warrant Agent Office. The number of Shares issuable upon exercise of the
Warrants ("Exercise Rate") is subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
Any Warrants not exercised on or prior to 5:00 p.m., New York
City time, on November 20, 2007 shall thereafter be void.
If the Company merges, amalgamates or consolidates with or
into, or sells all or substantially all of its property and assets to, another
Person solely for cash, the holders of Warrants shall be entitled to receive
distributions on the date of such event on an equal basis with holders of Shares
(or other securities issuable upon exercise of the Warrants) as if the Warrants
had been exercised immediately prior to such event (less the Exercise Price).
Reference is hereby made to the further provisions on the
reverse hereof which provisions shall for all purposes have the same effect as
though fully set forth at this place.
C-3
<PAGE>
This Warrant Certificate shall not be valid unless
authenticated by the Warrant Agent, as such term is used in the Warrant
Agreement.
THIS WARRANT CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
C-4
<PAGE>
WITNESS the seal of the Company and signatures of its duly
authorized officers.
Dated:
SPECTRASITE HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
---------------------------
Name:
Title:
C-5
<PAGE>
Certificate of Authentication:
This is one of the Warrants referred to in the within mentioned Warrant
Agreement:
FIRST UNION NATIONAL BANK,
as Warrant Agent
By:
------------------------------
Authorized Signatory
C-6
<PAGE>
[FORM OF SERIES III WARRANT CERTIFICATE]
[REVERSE]
SPECTRASITE HOLDINGS, INC.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring at 5:00 p.m., New York City time,
on November 20, 2007 (the "Expiration Date"), each of which represents the right
to purchase at any time on or after the Exercisability Date (as defined in the
Warrant Agreement) and on or prior to the Expiration Date one share of Common
Stock, subject to adjustment as set forth in the Warrant Agreement. The Warrants
are issued pursuant to a Warrant Agreement dated as of November 20, 2000 (the
"Warrant Agreement"), duly executed and delivered by the Company to First Union
National Bank, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement
is hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company
and the holders (the words "holders" or holder" meaning the registered holders
or registered holder) of the Warrants.
Warrants may be exercised by (i) surrendering at any Warrant
Agent Office this Warrant Certificate with the form of Election to Exercise set
forth hereon duly completed and executed and (ii) to the extent such exercise is
not being effected through a Cashless Exercise by paying in full the Warrant
Exercise Price for each such Warrant exercised and any other amounts required to
be paid pursuant to the Warrant Agreement.
If all of the items referred to in the preceding paragraph are
received by the Warrant Agent at or prior to 11:00 a.m., New York City time, on
a Business Day, the exercise of the Warrant to which such items relate will be
effective on such Business Day. If any items referred to in the preceding
paragraph are received after 11:00 a.m., New York City time, on a Business Day,
the exercise of the Warrants to which such item relates will be deemed to be
effective on the next succeeding Business Day. Notwithstanding the foregoing, in
the case of an exercise of Warrants on November 20, 2007, if all of the items
referred to in the preceding paragraph are received by the Warrant Agent at or
prior to 5:00 p.m., New York City time, on such Expiration Date, the exercise of
the Warrants to which such items relate will be effective on the Expiration
Date.
C-7
<PAGE>
As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue or cause to be issued to or upon the written
order of the registered holder of this Warrant Certificate, a certificate or
certificates evidencing the Share or Shares to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed by
such holder pursuant to the Election to Exercise, as set forth on the reverse of
this Warrant Certificate. Such certificate or certificates evidencing the Share
or Shares shall be deemed to have been issued and any persons who are designated
to be named therein shall be deemed to have become the holder of record of such
Share or Shares as of the close of business on the date upon which the exercise
of this Warrant was deemed to be effective as provided in the preceding
paragraph.
The Company will not be required to issue fractional shares of
Common Stock upon exercise of the Warrants or distribute Share certificates that
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered Holder of this Warrant
Certificate at the time such Warrant Certificate is exercised an amount in cash
equal to the same fraction of the Current Market Value per share of Common Stock
on the Business Day preceding the date this Warrant Certificate is surrendered
for exercise.
Warrant Certificates, when surrendered at any office or agency
maintained by the Company for that purpose by the registered holder thereof in
person or by legal representative or attorney duly authorized in writing, may be
exchanged for a new Warrant Certificate or new Warrant Certificates evidencing
in the aggregate a like number of Warrants, in the manner and subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of this
Warrant Certificate at any office or agency maintained by the Company for that
purpose, a new Warrant Certificate evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the
C-8
<PAGE>
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
The term "Business Day" shall mean any day on which (i) banks
in New York City and Charlotte, North Carolina (ii) the principal U.S.
securities exchange or market, if any, on which the Common Stock is listed or
admitted to trading are open for business.
The Shares are entitled to the benefits of a registration
rights agreement (the "Registration Rights Agreement"). The Registration Rights
Agreement provides the holders of Shares with the right, subject to the
conditions and limitations contained therein, to include the Shares in a shelf
registration for a specified period, to a demand registration following the
shelf registration and to include the Shares in certain registration statements
filed by the Company for its account or for the account of any of its Common
Stockholders.
C-9
<PAGE>
(FORM OF ELECTION TO EXERCISE)
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise [ ] of
the Warrants represented by this Warrant Certificate and purchase the whole
number of Shares issuable upon the exercise of such Warrants and herewith
tenders payment for such Shares as follows:
$[ ] in cash by wire transfer of immediately available funds;
or by surrender of Warrants pursuant to a Cashless Exercise (as defined in the
Warrant Agreement) for [ ] shares of Common Stock at the current Cashless
Exercise Ratio.
The undersigned requests that a certificate representing such
Shares be registered in the name of ____________________ whose address is
_________________________ and that such shares be delivered to
__________________________ whose address is __________________________. Any cash
payments to be paid in lieu of a fractional Share should be made to
__________________ whose address is ________________________ and the check
representing payment thereof should be delivered to ______________________ whose
address is ___________________.
Dated __________________, ____
Name of holder of
Warrant Certificate: _______________________________
......... (Please Print)
Tax Identification or
Social Security Number: ____________________________
Address: ___________________________________________
-------------------------------------------
Signature: _________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and if the certificate representing the
Shares or any Warrant Certificate representing Warrants not exercised is to
be registered in a name other than that in which this Warrant Certificate
is registered, or if any cash payment to be paid in lieu of a fractional
share is to be made to a person other than the registered holder of this
Warrant Certificate, the signature of the holder hereof must be guaranteed
as provided in the Warrant Agreement.
C-10
<PAGE>
Dated ____________________, ___
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
[FORM OF ASSIGNMENT]
For value received _______________________ hereby sells,
assigns and transfers unto _____________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint __________________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated ____________________, ____
Signature: ________________________________________
Note:The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed: _____________________________
C-11
