INSTRUCTIONS TO TRANSFER AGENT
WORLDWIDE WIRELESS NETWORKS, INC.
June 30, 2000
Standard Registrar & Transfer Co. Inc.
000 00 Xxxxx 0000 Xxxx
Xxxxxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Dear Xx. Xxxxxxxxxx:
Reference is made to the Convertible Debentures and Warrants Purchase
Agreement and all Exhibits thereto (the "Agreement") dated as of June 30, 2000,
between the investors signatory thereto (the "Investors") and Worldwide Wireless
Networks, Inc. (the "Company"). Pursuant to the Agreement, and subject to the
terms and conditions set forth in the Agreement, the Company has issued to the
Investors $1,000,000 principal amount of Convertible Debentures and Warrants
(the "Debentures and Warrants"). As a condition to the effectiveness of the
Agreement, the Company has agreed to issue to you, as the transfer agent for the
Common Stock (the "Transfer Agent"), these instructions relating to the Common
Stock to be issued to the Investors (or a permitted assignee) pursuant to the
Agreement upon conversion of the Debentures or upon exercise of the Warrants.
All capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Agreement.
1. ISSUANCE OF COMMON STOCK WITHOUT THE LEGEND
Pursuant to the Agreement and the Registration Rights Agreement,
the Company is required to prepare and file with the SEC, and maintain the
effectiveness of, a registration statement or registration statements
registering the resale of the Common Stock acquired at each Closing and to be
acquired by the Investors upon conversion of, or as payment of interest on, the
Debentures and upon exercise of the Warrants, all as provided in the
Registration Rights Agreement. The Company will advise the Transfer Agent in
writing of the effectiveness of any such registration statement promptly upon
its being declared effective, and shall deliver an opinion of its counsel to
that effect. The Transfer Agent shall be entitled to rely on such advice and
such opinion and shall assume that such registration statement remains in effect
unless the Transfer Agent is otherwise advised in writing by the Company or such
counsel, and the Transfer Agent shall not be required to independently confirm
the continued effectiveness of such registration statement. In the
circumstances set forth in the following three paragraphs, the Transfer Agent
shall deliver to the appropriate Investor certificates representing Common Stock
not bearing the Legend without requiring further advice or instruction or
additional documentation from the Company or its counsel or the Investor or its
counsel or any other party (other than as described in such paragraphs).
(a) At any time after the effective date of the registration
statement (provided that the Company has not informed the Transfer Agent in
writing that such registration statement is not effective) upon any surrender of
one or more certificates evidencing Common Stock which bear the Legend, to the
extent accompanied by a notice requesting the issuance of new certificates free
of the Legend to replace those surrendered, in such names and in such
denominations as the Investor may request, provided that in connection with any
such event, the Investor (or its permitted assignee) shall confirm in writing to
the Transfer Agent that (i) the Investor has sold, pledged or otherwise
transferred or agreed to sell, pledge or otherwise transfer such Common Stock in
a bona fide transaction to a third party that is not an affiliate of the
Company; and (ii) the Investor confirms to the transfer agent that the Investor
has complied with the prospectus delivery requirement.
(b) In the event a registration statement is not filed by the
Company, or for any reason the registration statement which is filed by the
Company is not declared effective by the SEC, the Investor, or its permitted
assignee, or its broker confirms to the Transfer Agent that (i) the Investor has
beneficially owned the shares of Common Stock for at least one (1) year, (ii)
counting the shares surrendered as being sold upon the date the unlegended
Certificates would be delivered to the Investor (or the Trading Day immediately
following if such date is not a Trading Day), the Investor will not have sold
more than the greater of (a) one percent (1%) of the total number of outstanding
shares of Common Stock or (b) the average weekly trading volume of the Common
Stock for the preceding four weeks during the three months ending upon such
delivery date (or the Trading Day immediately following if such date is not a
Trading Day), and (iii) the Investor has complied with the manner of sale and
notice requirements of Rule 144 under the Securities Act; or
(c) The Investor (or its permitted assignee) shall represent
that it is permitted to dispose of such shares of Common Stock without
limitation as to amount or manner of sale pursuant to Rule 144(k) under the
Securities Act.
In the case of subparagraphs (b) or (c), the Transfer Agent shall be
entitled to require an opinion of counsel to the Company or from counsel to the
Investor (which opinion shall be from an attorney or law firm reasonably
acceptable to the Transfer Agent and be in form and substance reasonably
acceptable to the Transfer Agent). Any advice, notice, or instructions to the
Transfer Agent required or permitted to be given hereunder may be transmitted
via facsimile to the Transfer Agent's facsimile number of ____________.
2. FEES OF TRANSFER AGENT; INDEMNIFICATION
The Company agrees to pay the Transfer Agent for all fees
incurred in connection with these Irrevocable Instructions. The Company agrees
to indemnify the Transfer Agent and its officers, employees and agents, against
any losses, claims, damages or liabilities, joint or several, to which it or
they become subject based upon the performance by the Transfer Agent of its
duties in accordance with these instructions, other than as a result of the
Transfer Agent's gross negligence or willful misconduct.
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3. MECHANICS OF DELIVERY OF CERTIFICATES REPRESENTING
COMMON STOCK
In connection with any exchange of the Convertible Debentures or
exercise of Warrants pursuant to which the Lender acquires Common Stock under
the Agreement, the Transfer Agent is hereby instructed to deliver to the Lender,
certificates representing Common Stock (with or without the Legend, as
appropriate) within two (2) Trading Days of receipt by the Transfer Agent of a
copy of the Notice of Conversion (in the case of the Debentures and Warrants) or
Notice of Exercise (in the case of the Warrant) from the Lender, and to deliver
such certificates to the Lender, in the case of original issuance, and in the
case of subsequent transfer, if the Transfer Agent is able to deliver such
Common Stock to the Lender's account pursuant to the DWAC system of the
Depository Trust Company, the Transfer Agent shall make delivery pursuant to
such system and provide the Lender with confirmation thereof in lieu of such
Common Stock certificates.
4. THIRD PARTY BENEFICIARY
The Company and the Transfer Agent acknowledge and agree that the
Investors are each an express third party beneficiary of these instructions and
shall be entitled to rely upon, and enforce, the provisions thereof.
WORLDWIDE WIRELESS NETWORKS, INC.
By:_________________________________
Xxxx Xxxxxxxxx, Chairman & CEO
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