UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
Report Of Foreign Private Issuer
Pursuant To Rule 13a-16 Or 15d-16 Of
The Securities Exchange Act Of 1934
FOR THE MONTH OF JULY, 2014
COMMISSION FILE NUMBER: 001-34491
DRAGONWAVE INC.
(Translation of registrant's name into English)
411 Legget Drive, Suite 600
Ottawa, Ontario, K2K 3C9
Canada
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
o Form 20-F ý Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
o Yes ý No
If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): n/a .
The following are exhibits issued by DragonWave Inc.:
Exhibit Number | Description
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|
---|---|---|
99.1 |
Press Release dated July 24, 2014DragonWave Inc. Announces Proposed Public Offering of Units |
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99.2 |
DragonWave Inc. Term Sheet for Overnight Marketed Treasury Offering of Units |
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99.3 |
Form of Warrant Indenture between DragonWave Inc. and Computershare Trust Company of Canada as the Warrant Agent |
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99.4 |
Form of Warrant Certificate (included in Exhibit 99.3 hereto) |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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DRAGONWAVE INC. (Registrant) |
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By: |
/s/ Russell Frederick |
Date: July 24, 2014
July 24, 2014
DragonWave Inc. Announces Proposed Public Offering of Units
OTTAWA, ONTARIO(MarketwiredJuly 24, 2014)DragonWave Inc. (the "Company") (TSX:DWI)(NASDAQ:DRWI), a leading global supplier of packet microwave radio systems for mobile and access networks, announced that it intends to offer units of the Company (the "Units") in a C$21.5 million underwritten public offering (the "Offering"). The pricing and number of Units to be offered will be determined in the context of the market (the "Issue Price"). CIBC is acting as the sole book-runner for the offering and H.C. Wainwright & Co., LLC is acting as co-lead manager (together, the "Underwriters").
Each Unit will consist of one common share and one half of one warrant. Each whole warrant will be exercisable for one common share of the Company, at an exercise price to be determined in the course of marketing, for a period of two years from the closing of the Offering. The Company will grant the Underwriters an option, exercisable at the Issue Price for a period of 30 days following closing date the offering, to purchase up to an additional 15% of the issue to cover over-allotments, if any. The Underwriters can elect to exercise the Over-Allotment Option for Units only, Common Shares only, or Warrants only, or any combination thereof. The Offering is expected to price before 9:30 am EDT on July 25, 2014.
The Offering is subject to market conditions and other customary conditions, including the approval of the Toronto Stock Exchange ("TSX") and The NASDAQ Stock Market ("NASDAQ") with respect to the listing of the common shares, and there can be no assurance as to whether or when the Offering may be completed, or as to the actual size or terms of the offering. The Company intends to apply to list the Warrants on the NASDAQ and has applied to list the warrants on TSX. There is no guarantee that the Warrants will be listed on NASDAQ or the TSX.
The Offering is being conducted in the United States pursuant to the Company's effective shelf registration statement filed with the United States Securities and Exchange Commission (the "SEC") on August 29, 2013 and in Canada pursuant to a final short form base shelf prospectus dated August 29, 2013 filed with the securities regulatory authorities in each of the provinces of Canada, other than Quebec. A preliminary prospectus supplement containing important information relating to the offered securities has been filed with the securities commissions in each of the provinces of Canada, other than Quebec, and in the United States with the SEC. The preliminary prospectus supplement is still subject to completion or amendment. A final prospectus supplement relating to the Offering will also be filed with the securities commissions in each of the provinces of Canada, other than Quebec, and in the United States with the SEC. The preliminary prospectus supplement and the final prospectus supplement will each form a part of the effective registration statement and the prospectus. When available, copies of the preliminary and final prospectus supplements relating to these securities may be obtained by visiting the SEC's website at www.sec.gov, on SEDAR at www.sedar.com or from CIBC or H.C. Wainwright & Co. LLC by sending an email to michelene.dougherty@cibc.ca,for Canadian investors, and useprospectus@us.cibc.com or placements@hcwco.com, for United States investors. This press release shall not constitute an offer to sell or the solicitation of an offer to buy securities, nor shall there be any sale of such securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.
The Company also announced that it has filed a new preliminary short form base shelf prospectus with the securities commissions in each of the provinces of Canada, other than Quebec, and a corresponding shelf registration statement with the SEC. Under the new prospectus and corresponding new registration statement, the Company may from time to time offer by way of shelf prospectus supplement debt securities, common shares or warrants to purchase debt securities or common shares in the aggregate amount of up to US$80,000,000. The new shelf prospectus and corresponding new registration statement is intended to provide the Company with additional flexibility to access securities markets in a timely manner and to cover common shares issued upon exercise of the warrants, if necessary, under applicable U.S. securities laws. Other than the Offering, the Company has no present intention to undertake an offering of securities. Securities may not be sold nor may offers to buy be accepted under the new short form base shelf prospectus or corresponding new registration statement prior to the time a receipt for the new final short form base shelf prospectus is issued and the corresponding registration statement becomes effective.
About DragonWave
DragonWave® is a leading provider of high-capacity packet microwave solutions that drive next-generation IP networks. DragonWave's carrier-grade point-to-point packet microwave systems transmit broadband voice, video and data, enabling service providers, government agencies, enterprises and other organizations to meet their increasing bandwidth requirements rapidly and affordably. The principal application of DragonWave's products is wireless network backhaul, including a range of products ideally suited to support the emergence of underlying small cell networks. Additional solutions include leased line replacement, last mile fiber extension and enterprise networks. DragonWave's corporate headquarters is located in Ottawa, Ontario, with sales locations in Europe, Asia, the Middle East and North America. For more information, visit http://www.dragonwaveinc.com.
DragonWave® and Horizon® are registered trademarks of DragonWave Inc.
Forward-Looking Statements
Certain statements in this release constitute forward-looking statements within the meaning of applicable securities laws. Forward-looking statements include statements as to the timing of the pricing of the Offering, the terms of the Offering, and the availability of the preliminary prospectus supplement and the final prospectus supplement. These statements are subject to certain assumptions, risks and uncertainties, including market conditions and stock exchange approvals. Readers are cautioned not to place undue reliance on such statements. These statements are provided to assist external stakeholders in understanding DragonWave's expectations as of the date of this release and may not be appropriate for other purposes. Actual results, performance, achievements or developments of DragonWave may differ materially from the results, performance, achievements or developments expressed or implied by such statements.
Risk factors, in addition to those detailed above, that may cause the actual results, performance, achievements or developments of DragonWave to differ materially from the results, performance, achievements or developments expressed or implied by such statements can be found in the Company's effective shelf registration statement filed with the SEC on August 29, 2013 and in the final short form base shelf prospectus dated August 29, 2013 filed with the securities regulatory authorities in each of the provinces of Canada, other than Quebec, and the documents incorporated by reference therein, and in other public documents filed by DragonWave with Canadian and United States securities regulatory authorities, which are available at www.sedar.com and www.sec.gov, respectively.
DragonWave assumes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as expressly required by law.
FOR FURTHER INFORMATION PLEASE CONTACT:
Investor
Contact:
John Lawlor
Investor Relations
DragonWave Inc.
jlawlor@dragonwaveinc.com
613-599-9991 ext 2424
Media
Contact:
Nadine Kittle
Marketing Communications
DragonWave Inc.
nkittle@dragonwaveinc.com
613-599-9991 ext 2262
Media
Contact:
Becky Obbema
Interprose Public Relations
(for DragonWave)
Becky.Obbema@interprosepr.com
(408) 778-2024
Source: DragonWave Inc.
DRAGONWAVE INC.
OVERNIGHT MARKETED TREASURY OFFERING OF UNITS
TERM SHEET
A FINAL BASE SHELF PROSPECTUS CONTAINING IMPORTANT INFORMATION RELATING TO THE SECURITIES DESCRIBED IN THIS DOCUMENT HAS BEEN FILED WITH THE SECURITIES REGULATORY AUTHORITIES IN EACH OF THE PROVINCES OF CANADA (EXCEPT QUEBEC) AND IN THE UNITED STATES. A COPY OF THE FINAL BASE SHELF PROSPECTUS, ANY AMENDMENT TO THE FINAL BASE SHELF PROSPECTUS AND ANY APPLICABLE SHELF PROSPECTUS SUPPLEMENT THAT HAS BEEN FILED, IS REQUIRED TO BE DELIVERED WITH THIS DOCUMENT. THIS DOCUMENT DOES NOT PROVIDE FULL DISCLOSURE OF ALL MATERIAL FACTS RELATING TO THE SECURITIES OFFERED. INVESTORS SHOULD READ THE FINAL BASE SHELF PROSPECTUS, ANY AMENDMENT AND ANY APPLICABLE SHELF PROSPECTUS SUPPLEMENT FOR DISCLOSURE OF THOSE FACTS, ESPECIALLY RISK FACTORS RELATING TO THE SECURITIES OFFERED, BEFORE MAKING AN INVESTMENT DECISION.
Issuer: |
DragonWave Inc. (the "Company"). |
|
Issue: |
Overnight marketed public offering of units (the "Units"). |
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Issue Price: |
C$ per Unit |
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Units: |
Units will be comprised of one common share ("Common Shares") and one half warrant ("Warrants"). Each whole Warrant will entitle the holder thereof to purchase one Common Share of the Company (a "Warrant Share") at an exercise price of $ per share for a period of 24 months after the Closing Date, subject to adjustment in certain circumstances. |
|
Amount: |
Approximately C$21,500,000, prior to the Over-Allotment Option (as defined below). |
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Over-Allotment Option: |
The Company will grant the Underwriters an option, exercisable at the Issue Price for a period of 30 days following the Closing Date, to purchase up to an additional 15% of the Issue to cover over-allotments, if any. The Underwriters can elect to exercise the Over-Allotment Option for Units only, Common Shares only, or Warrants only, or any combination thereof. |
|
Use of Proceeds: |
The net proceeds of the Issue will be used to strengthen the Company's balance sheet, to fund working capital and for general corporate purposes. |
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Selling Jurisdictions: |
The Issue is being offered in the United States pursuant to the Company's effective shelf registration statement filed with the Securities and Exchange Commission and in Canada pursuant to a final short form base shelf prospectus filed with the securities regulatory authorities in each of the provinces of Canada, other than Quebec. |
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Listing: |
The Company intends to apply for the listing of the Common Shares, the Warrants and the Warrant Shares on the NASDAQ and has applied for the listing of the Common Shares, the Warrants and the Warrant Shares on the TSX. Listing of the Warrant Shares and Common Shares will be subject to the fulfilment of all the listing requirements of the NASDAQ and TSX, respectively. Listing of the Warrants is not a condition to the closing of the offering and will be subject to the fulfilment of all of the listing requirements of the NASDAQ and TSX. There is no guarantee that the NASDAQ and TSX will approve the listing of the Warrants. |
Eligibility: |
Eligible for RRSPs, RRIFs, RESPs, DPSPs, RDSPs and TFSAs. |
|
Anticipated Closing Date: |
August 1, 2014 |
A registration statement relating to the securities to be issued in the offering has been filed with, and declared effective by, the United States Securities and Exchange Commission (the "SEC"). A prospectus supplement relating to the offering will be filed with the SEC. Copies of the final base shelf prospectus and the preliminary prospectus supplement, and the prospectus supplement when available, may be obtained from CIBC at useprospectus@us.cibc.com or for United States investors, from H.C. Wainwright & Co., LLC at placements@hcwco.com These documents may also be obtained free of charge by visiting EDGAR on the SEC website at www.sec.gov. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.
DRAGONWAVE INC.
as the Corporation
and
COMPUTERSHARE TRUST COMPANY OF CANADA
as the Warrant Agent
WARRANT INDENTURE
, 2014
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Article 1 |
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INTERPRETATION |
5 | |||
Section 1.1 |
Definitions |
5 | ||
Section 1.2 |
Meaning of "Outstanding" for Certain Purposes |
9 | ||
Section 1.3 |
Certain Rules of Interpretation |
10 | ||
Section 1.4 |
Interpretation not Affected by Headings, etc. |
10 | ||
Section 1.5 |
Applicable Law |
10 | ||
Section 1.6 |
Language Clause |
10 | ||
Section 1.7 |
Day Not A Business Day |
10 | ||
Section 1.8 |
Conflict |
11 | ||
Section 1.9 |
Time Of The Essence |
11 | ||
Section 1.10 |
Currency |
11 | ||
Section 1.11 |
Severability |
11 | ||
Section 1.12 |
Schedules |
11 | ||
Article 2 |
||||
ISSUE OF WARRANTS |
11 | |||
Section 2.1 |
Creation and Issue of Warrants |
11 | ||
Section 2.2 |
Terms of Warrants |
11 | ||
Section 2.3 |
Form of Warrants |
12 | ||
Section 2.4 |
Holder Not A Shareholder |
13 | ||
Section 2.5 |
Issue in Substitution for Lost Warrant Certificate |
13 | ||
Section 2.6 |
Register for Warrants |
13 | ||
Section 2.7 |
Transfer of Warrants |
14 | ||
Section 2.8 |
Transferee Entitled to Registration |
15 | ||
Section 2.9 |
Ownership of Warrants |
15 | ||
Section 2.10 |
Exchange of Warrant Certificates |
15 | ||
Section 2.11 |
Issue of Global Certificates |
16 | ||
Section 2.12 |
Transfer of Warrants Represented by Global Certificates |
17 | ||
Article 3 |
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EXERCISE OF WARRANTS |
17 | |||
Section 3.1 |
Rights of Exercise of Warrants |
17 | ||
Section 3.2 |
Method of Exercise of Warrants |
17 | ||
Section 3.3 |
Cashless Exercise |
18 | ||
Section 3.4 |
Effect of Exercise of Warrants |
19 | ||
Section 3.5 |
Partial Exercise of Warrants |
19 | ||
Section 3.6 |
Cancellation of Warrants |
19 | ||
Section 3.7 |
Warrants Void after the Expiry Time |
20 | ||
Section 3.8 |
Accounting and Recording |
20 | ||
Section 3.9 |
Securities Restrictions |
20 | ||
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Article 4 |
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CERTAIN ADJUSTMENTS |
20 | |||
Section 4.1 |
Adjustment upon Common Share Reorganization or Capital Reorganization |
20 | ||
Section 4.2 |
Adjustment Upon Rights Offering |
22 | ||
Section 4.3 |
Adjustment to Exercise Price |
23 | ||
Section 4.4 |
Entitlement to Shares and Other Securities on Exercise of Warrants |
23 | ||
Section 4.5 |
No Adjustment for Stock Options, etc. |
24 | ||
Section 4.6 |
Determination by Corporation's Auditors |
24 | ||
Section 4.7 |
Proceedings Prior to Any Action Requiring Adjustment |
24 | ||
Section 4.8 |
Action Requiring Adjustment |
24 | ||
Section 4.9 |
Certificate of Adjustment |
24 | ||
Section 4.10 |
Notice of Special Matters |
24 | ||
Section 4.11 |
No Action After Notice |
25 | ||
Section 4.12 |
Protection of Warrant Agent |
25 | ||
Section 4.13 |
Adjustments Cumulative |
25 | ||
Article 5 |
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PURCHASES BY THE CORPORATION |
25 | |||
Section 5.1 |
Optional Purchase by the Corporation |
25 | ||
Section 5.2 |
Acquisition Event |
26 | ||
Article 6 |
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COVENANTS OF THE CORPORATION |
27 | |||
Section 6.1 |
Issuance of Common Shares |
27 | ||
Section 6.2 |
To Pay Warrant Agent Remuneration and Expenses |
28 | ||
Section 6.3 |
To Perform Covenants |
28 | ||
Section 6.4 |
Warrant Agent May Perform Covenants |
28 | ||
Section 6.5 |
Securities Qualification Requirements |
28 | ||
Section 6.6 |
Corporation Reporting in the United States |
29 | ||
Article 7 |
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ENFORCEMENT |
29 | |||
Section 7.1 |
Suits by Holders of Warrants |
29 | ||
Section 7.2 |
Waiver of Default |
29 | ||
Article 8 |
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INTENTIONALLY DELETED |
30 | |||
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2
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Article 9 |
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MEETINGS OF HOLDERS OF WARRANTS |
30 | |||
Section 9.1 |
Right to Convene Meeting |
30 | ||
Section 9.2 |
Notice of Meetings |
30 | ||
Section 9.3 |
Chairman |
30 | ||
Section 9.4 |
Quorum |
30 | ||
Section 9.5 |
Power to Adjourn |
30 | ||
Section 9.6 |
Show Of Hands |
31 | ||
Section 9.7 |
Poll |
31 | ||
Section 9.8 |
Voting |
31 | ||
Section 9.9 |
Regulations |
31 | ||
Section 9.10 |
Corporation And Warrant Agent May Be Represented |
31 | ||
Section 9.11 |
Powers Exercisable By Extraordinary Resolution |
32 | ||
Section 9.12 |
Meaning of "Extraordinary Resolution" |
32 | ||
Section 9.13 |
Powers Cumulative |
33 | ||
Section 9.14 |
Minutes |
33 | ||
Section 9.15 |
Instruments in Writing |
33 | ||
Section 9.16 |
Binding Effect of Resolutions |
33 | ||
Section 9.17 |
Holdings by Corporation and its Subsidiaries Disregarded |
33 | ||
Article 10 |
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NOTICES |
34 | |||
Section 10.1 |
Notice to the Corporation and the Warrant Agent |
34 | ||
Section 10.2 |
Notice to Holders of Warrants |
34 | ||
Section 10.3 |
Mail Service Information |
35 | ||
Article 11 |
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CONCERNING THE WARRANT AGENT |
35 | |||
Section 11.1 |
Warrant Indenture Legislation |
35 | ||
Section 11.2 |
No Conflict of Interest |
35 | ||
Section 11.3 |
Replacement of Warrant Agent |
35 | ||
Section 11.4 |
Evidence, Experts and Advisers |
36 | ||
Section 11.5 |
Warrant Agent May Deal in Securities |
36 | ||
Section 11.6 |
Warrant Agent Not Ordinarily Bound |
36 | ||
Section 11.7 |
Warrant Agent Not Required To Give Security |
37 | ||
Section 11.8 |
Warrant Agent Not Required To Give Notice of Default |
37 | ||
Section 11.9 |
Acceptance of Appointment |
37 | ||
Section 11.10 |
Duties of Warrant Agent |
37 | ||
Section 11.11 |
Actions by Warrant Agent |
37 | ||
Section 11.12 |
Protection of Warrant Agent |
38 | ||
Section 11.13 |
Indemnification of the Warrant Agent |
38 | ||
Section 11.14 |
Third Party Interests |
38 | ||
Section 11.15 |
Not Bound To Act |
38 | ||
Section 11.16 |
Privacy Laws |
39 | ||
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3
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Article 12 |
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SUPPLEMENTAL INDENTURES |
39 | |||
Section 12.1 |
Supplemental Indentures |
39 | ||
Article 13 |
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GENERAL PROVISIONS |
40 | |||
Section 13.1 |
Execution |
40 | ||
Section 13.2 |
Rights of Rescission |
40 | ||
Section 13.3 |
Force Majeure |
40 | ||
Section 13.4 |
Satisfaction and Discharge of Indenture |
40 | ||
Section 13.5 |
Warrants Owned by the Corporation or its Subsidiaries Certificate to |
41 | ||
Section 13.6 |
Provisions of Indenture and Warrants for the Sole Benefit of Parties and Holders |
41 | ||
Section 13.7 |
Stock Exchange Consents |
41 |
SCHEDULE "A" DRAGONWAVE INC. FORM OF WARRANT CERTIFICATE
4
THIS INDENTURE made as of , 2014
BETWEEN:
DRAGONWAVE INC., a corporation incorporated under the laws of Canada (the "Corporation")
AND
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada and authorized to carry on business in all provinces of Canada (the "Warrant Agent")
WHEREAS:
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged by each of the Corporation and the Warrant Agent, the Corporation appoints the Warrant Agent as agent for the Holders, to hold all rights, interests and benefits contained in this Indenture for and on behalf of those Persons who from time to time become holders of Warrants issued pursuant to this Indenture, and the parties hereby covenant, agree and declare as follows:
Section 1.1 Definitions
In this Indenture, including the recitals and schedules hereto, the following words and phrases shall have the following meanings:
"Acquisition Event" means:
5
the result of which is that:
"Affiliate" means an "affiliate" as such term is used in the Securities Act (Ontario);
"Authenticated" means (a) with respect to the issuance of a Warrant Certificate, one which has been duly signed by the Corporation and authenticated by manual signature of an authorized officer of the Warrant Agent, and (b) with respect to the issuance of an Uncertificated Warrant, one in respect of which the Warrant Agent has completed all Internal Procedures such that the particulars of such Uncertificated Warrant as required by Section 2.3 are entered in the register of holders of Warrants; and "Authenticate", "Authenticating" and "Authentication" have the appropriate correlative meanings;
"Beneficial Owner" means a Person that has the beneficial ownership interest in a Warrant that is represented by a Global Certificate;
"Book Entry Only Participant" means an institution that participates directly or indirectly in the Depository's book entry registration system for the Warrants;
"Book Entry Only Warrant" means a Warrant that is to be held only by or on behalf of the Depository;
"Business Day" means any day (other than a Saturday, Sunday or statutory holiday) on which the principal transfer office of the Warrant Agent in Toronto, Ontario is open for business;
"Capital Reorganization" shall have the meaning ascribed thereto in Section 4.1;
"CDS" means CDS Clearing and Depository Services Inc.;
"Certificated Warrant" means a Warrant evidenced by a writing or writings substantially in the form of the Warrant Certificate attached hereto at Schedule "A";
"Common Share Reorganization" shall have the meaning ascribed thereto in subsection 4.1(1);
"Common Shares" means the fully paid and non-assessable common shares in the capital of the Corporation as such common shares are presently constituted, provided that in the event of any adjustment in accordance with the provisions of Article 4 hereof, "Common Shares" shall thereafter mean the shares or other securities or property resulting from such adjustment; and "Common Share" means any one of them;
"Convertible Security" means a security of the Corporation (other than the Warrants) or of any other issuer convertible into or exchangeable for or otherwise carrying the right to acquire Common Shares;
"Corporation" means DragonWave Inc.;
6
"Corporation's Auditors" means an independent firm of chartered accountants duly appointed as auditors of the Corporation;
"Current Market Price" in respect of a Common Share at any date means the VWAP for the 20 consecutive Trading Days ending on the fifth Trading Day before such date on the NASDAQ or, if the Common Shares are not then listed on the NASDAQ, then on such other stock exchange on which the Common Shares are then listed as may be selected by the Directors of the Corporation or, if the Common Shares are not then listed on a stock exchange, on the over-the-counter market; provided that, if there is no market for the Common Shares during all or part of such period during which the Current Market Price thereof would otherwise be determined, the Current Market Price in respect of a Common Share shall in respect of all or such part of the period be determined by a nationally recognized accounting firm chosen by the Corporation;
"Depository" means CDS or its successor, The Depository Trust Company or its successor or any other depository offering a book based securities registration and transfer system similar to that administered by CDS which the Corporation, with the consent of the Warrant Agent, acting reasonably, may designate;
"Depository Global Warrants" means Warrants representing all or a portion of the aggregate number of Warrants issued in the name of the applicable Depository represented by an Uncertificated Warrant, or if requested by the Depository or the Corporation, by a Warrant Certificate;
"Designated Jurisdictions" means each of the provinces of Canada, except Quebec, and the United States, being the jurisdictions agreed to between the Corporation and the Underwriter where Units are to be sold;
"Director" means a director of the Corporation and "Directors" or "Board of Directors" means the board of directors of the Corporation or, whenever duly empowered, a committee of the board of directors of the Corporation, and reference to "action by the directors" means action by the directors of the Corporation as a board or action by a committee as a committee;
"Equity Shares" means the Common Shares and any shares of any other class or series of the Corporation which may from time to time be authorized for issue if by their terms such shares confer on the holders thereof the right to participate in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation beyond a fixed sum or a fixed sum plus accrued dividends;
"Exercise Date" means, with respect to any Warrant, the date on which the Warrant Certificate representing such Warrant is surrendered by a Holder for exercise in accordance with the provisions of Article 3;
"Exercise Form" has the meaning ascribed thereto in subsection 3.2(1);
"Exercise Price" has the meaning ascribed thereto in subsection 3.2(1);
"Expiry Date" means, with respect to any Warrant, , 2016, provided that if such date is not a Business Day the Expiry Date will be the next succeeding Business Day;
"Expiry Time" means 5:00 p.m. (Toronto time) on the Expiry Date;
"Extraordinary Resolution" has the meaning ascribed thereto in Section 9.12 and Section 9.15;
"Fundamental Transaction" means the occurrence of any of the following:
"Global Certificate" means a Warrant Certificate that is registered in the name of the Depository or its nominee pursuant to Section 2.11 for the purpose of being held by or on behalf of the Depository as custodian for Participants and Beneficial Owners;
7
"Holder" means a Person from time to time who is the registered holder of a Warrant;
"Holders' Request" means an instrument signed in one or more counterparts by Holders entitled to acquire in the aggregate not less than 25% of the aggregate number of Common Shares which could be acquired pursuant to the exercise of all Warrants then unexercised and outstanding, requesting the Warrant Agent to take some action or proceeding specified therein;
"Indenture" or "this Indenture" and "hereto", "herein", "hereby", "hereunder", "hereof" and similar expressions refer to this instrument and not to any particular Article, section, clause, subdivision or other portion hereof, and include each instrument supplemental or ancillary hereto or required to implement this instrument;
"Indenture Legislation" has the meaning ascribed thereto in subsection 11.1(1);
"Internal Procedures" means in respect of the making of any one or more entries to, changes in or deletions of any one or more entries in the register at any time (including without limitation, original issuance or registration of transfer of ownership) the minimum number of the Warrant Agent's internal procedures customary at such time for the entry, change or deletion made to be complete under the operating procedures followed at the time by the Warrant Agent;
"NASDAQ" means The NASDAQ Global Select Market;
"Offered Shares" has the meaning ascribed thereto in subsection 4.2(1)(a);
"Officers' Certificate" means a certificate signed by any one or more of the officers or Directors of the Corporation;
"Participant" means a Person recognized by the Depository as a participant in the book entry only securities registration and transfer system administered by the Depository;
"Person" includes any individual, corporation, company, partnership, association, joint venture, trust, unincorporated association, government or governmental authority;
"Privacy Laws" has the meaning ascribed thereto in Section 11.16;
"Registration Statement" means a registration statement filed with the SEC under the U.S. Securities Act and relating to the Underlying Securities;
"Rights Offering" has the meaning ascribed thereto in subsection 4.2(1)(a);
"SEC" means the United States Securities and Exchange Commission;
"Securities Commissions" means, the securities regulatory authority in each of the provinces of Canada;
"Securities Laws" means, as applicable, the securities laws, regulations, rules, rulings and orders in the Designated Jurisdictions and the rules of the TSX or NASDAQ;
"Special Distribution" has the meaning ascribed thereto in subsection 4.2(2);
"Subscribers" means, collectively, all of the Persons who have subscribed for Units and "Subscriber" means any one of them;
"Subsidiary" shall have the meaning ascribed thereto in the Securities Act(Ontario);
"Trading Day" means any day on which NASDAQ (or such other exchange on which the Common Shares are listed and which forms the primary trading market for the Common Shares) is open for trading;
"TSX" means the Toronto Stock Exchange;
"Uncertificated Warrant" means any Warrant which is not a Certificated Warrant;
"Underlying Securities" means the Common Shares underlying the Warrants;
"Underwriters" means CIBC World Markets Inc. and H.C. Wainwright & Co., LLC.;
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"Underwriting Agreement" means the underwriting agreement between the Underwriters and the Corporation dated as of , 2014 in respect of the sale of the Units;
"Unit" means a unit of the Corporation issued in accordance with the terms of the Underwriting Agreement, each such Unit consisting of one Common Share and one-half of one Warrant;
"United States" means the United States of America, its territories and possessions, any state of the United States and the District of Colombia;
"U.S. Securities Act" means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder;
"Voting Shares" of a Person means shares in the capital of such Person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time capital shares of any other class or classes shall have or might have voting power by reason of the happening of any contingency);
"VWAP" means the volume weighted average trading price of the Common Shares on NASDAQ, or, if the Common Shares are no longer listed on NASDAQ, such other stock exchange on which the Common Shares are then trading, calculated by dividing the total value by the total volume of Common Shares traded for the relevant period;
"Warrant Agency" means the means the principal office of Computershare Trust Company N.A. in the City of Denver, Colorado, or the principal office of the Warrant Agent in the City of Toronto, Ontario, and such other locations as the Corporation may designate with the approval of the Warrant Agent;
"Warrant Agent" means Computershare Trust Company of Canada or its successor or successors for the time being as warrant agent appointed hereunder, at its principal office in the City of Toronto, Ontario;
"Warrant Certificate" means a certificate, substantially in the form set forth in Schedule "A"hereto, to evidence those Certificated Warrants;
"Warrants" means up to fully-paid Common Share purchase warrants of the Corporation created and issued hereunder and for the time being outstanding entitling registered holders thereof to acquire, upon the valid exercise thereof and subject to adjustment in certain circumstances, one Common Share in accordance with the terms hereof, and "Warrant" means any one of them; and
"Written order of the Corporation", "written request of the Corporation", "written consent of the Corporation" and "certificate of the Corporation" mean respectively a written order, request, consent and certificate signed in the name of the Corporation by any one or more of the officers or Directors of the Corporation and may consist of one or more instruments so executed and any other documents referred to herein which is required or contemplated to be provided or given by the Corporation;
and a derivative of any defined word or phrase has the meaning appropriate to the derivation of the word or phrase.
Section 1.2 Meaning of "Outstanding" for Certain Purposes
Except as provided in Section 3.7, every Warrant Certificate countersigned and delivered by the Warrant Agent under this Indenture shall be deemed to be outstanding until it has been surrendered to the Warrant Agent pursuant to this Indenture, provided however that:
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Section 1.3 Certain Rules of Interpretation
Unless otherwise specified in this Indenture:
Section 1.4 Interpretation not Affected by Headings, etc.
The division of this Indenture into Articles, sections and other subdivisions, the inclusion of a table of contents and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Indenture.
Section 1.5 Applicable Law
This Indenture, the Warrants and the Warrant Certificates shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to conflict of laws principles. Any and all disputes arising under this Indenture, the Warrants and the Warrant Certificates, whether as to interpretation, performance or otherwise, shall be subject to the non-exclusive jurisdiction of the courts of the Province of Ontario and each of the parties hereto irrevocably attorns, and the Holders shall be deemed to attorn, to the jurisdiction of the courts of such Province.
Section 1.6 Language Clause
The parties hereto have required that this Indenture and all documents and notices related thereto or resulting therefrom be drawn up only in the English language. Les parties ont expressément demandé que la présente convention ainsi que tout autre document à être ou pouvant être donné ou conclu en vertu des dispositions des présentes, soient rédigés en langue anglaise seulement.
Section 1.7 Day Not A Business Day
Whenever any payment is due or required to be made or any other action is required to be taken under this Indenture or the Warrant Certificates on or as of a day that is not a Business Day, that payment must be made and the other action must be taken on or as of the next succeeding day that is a Business Day.
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Section 1.8 Conflict
In the event of a conflict or inconsistency between a provision of this Indenture and in the Warrant Certificates issued hereunder, the relevant provision in this Indenture shall prevail to the extent of the inconsistency.
Section 1.9 Time Of The Essence
Time shall be of the essence of this Indenture, the Warrants and the Warrant Certificates.
Section 1.10 Currency
Except as otherwise stated, all dollar amounts herein are expressed in Canadian dollars.
Section 1.11 Severability
In the event that any provision of this Indenture is determined to be invalid or unenforceable in any respect, such determination shall not affect such provision in any other respect or any other provision of this Indenture, all of which shall remain in full force and effect.
Section 1.12 Schedules
Schedule "A" to this Indenture is incorporated into this Indenture by reference.
Section 2.1 Creation and Issue of Warrants
Section 2.2 Terms of Warrants
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Section 2.3 Form of Warrants
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shall be conclusive evidence that such Certificated Warrant is duly Authenticated and is a valid and a binding obligation of the Corporation and that the Holder is entitled to the benefits of this Indenture. The Authentication by the Warrant Agent on any such Certificated Warrant hereunder shall not be construed as a representation or warranty by the Warrant Agent as to the validity of this Indenture or of such Warrant or its issuance (except the due Authentication thereof and any other warranties by law) or as to the performance by the Corporation of its obligations under this Indenture and the Warrant Agent shall in no respect be liable or answerable for the use made of the Warrants or any of them or the proceeds thereof.
Section 2.4 Holder Not A Shareholder
Nothing in this Indenture or in the holding of a Warrant itself evidenced by a Warrant Certificate, or otherwise, shall be construed as conferring upon a Holder any right or interest whatsoever as a shareholder of the Corporation, including, but not limited to, the right to vote at, to receive notice of, or to attend, meetings of shareholders or any other proceedings of the Corporation, or the right to receive dividends and other distributions, except as may be provided herein or in the Warrant Certificates.
Section 2.5 Issue in Substitution for Lost Warrant Certificate
Section 2.6 Register for Warrants
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holders of Warrants. The information to be entered for each account in the register of Warrants at any time shall include (without limitation):
Section 2.7 Transfer of Warrants
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Section 2.8 Transferee Entitled to Registration
Section 2.9 Ownership of Warrants
Section 2.10 Exchange of Warrant Certificates
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Section 2.11 Issue of Global Certificates
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. ("CDS") TO DRAGONWAVE INC. (THE "ISSUER") OR THE WARRANT AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE"
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then one or more definitive fully registered Warrant Certificates shall be executed by the Corporation and certified and delivered by the Warrant Agent to the Depository in exchange for the Global Certificate(s) held by the Depository.
Section 2.12 Transfer of Warrants Represented by Global Certificates
The provisions of Section 2.7 with respect to the transfer of Warrants are subject to the provisions of Section 2.11.
ARTICLE 3
EXERCISE OF WARRANTS
Section 3.1 Rights of Exercise of Warrants
Subject to the further provisions hereof, including the provisions of Section 3.9 hereof, the Warrants may be exercised at any time up to the earlier of: (i) the Expiry Time, or (ii) if Section 5.2(5) is applicable, on the date of the deposit of the Purchase Amount contemplated by Section 5.2(5).
Section 3.2 Method of Exercise of Warrants
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one Common Share (subject to adjustment pursuant to Article 4) in respect of each Warrant held by surrendering to the Warrant Agent at the Warrant Agency the Warrant Certificate(s) held by him or her, together with (i) the exercise form forming part of the Warrant Certificate (the "Exercise Form") duly completed and executed by the Holder or his executors, administrators or other legal representatives or his or their attorney duly appointed by an instrument in writing in form and manner satisfactory to the Warrant Agent, acting reasonably; and (ii) a certified cheque, bank draft or money order in lawful money of the United States, payable to or to the order of the Corporation in an amount equal to $ per Common Share (the "Exercise Price") (subject to adjustment pursuant to Article 4) multiplied by the number of Common Shares subscribed for pursuant to such Exercise Form. A Warrant Certificate with the duly completed and executed Exercise Form and payment of the applicable Exercise Price shall be deemed to be surrendered only upon personal delivery thereof to or, if sent by mail or other means of transmission, upon actual receipt thereof by, the Warrant Agent at the Warrant Agency.
Section 3.3 Cashless Exercise
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Warrants, in whole or in part, at such time by means of a "cashless exercise" in which the Holder shall be entitled to receive a number of whole Common Shares (rounded down to the nearest whole number) equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
Section 3.4 Effect of Exercise of Warrants
Section 3.5 Partial Exercise of Warrants
Section 3.6 Cancellation of Warrants
All Warrant Certificates surrendered to the Warrant Agent pursuant hereto (including those exercised and surrendered under Section 3.2 and Section 3.3) shall be cancelled and, after the expiry of any period of retention prescribed by law, destroyed by the Warrant Agent, and the Warrant Agent shall furnish the Corporation on request with a cancellation certificate identifying the Warrant Certificates so cancelled, the number of Warrants
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evidenced thereby and the number of Common Shares which could have been or were acquired pursuant to each cancelled Warrant Certificate.
Section 3.7 Warrants Void after the Expiry Time
No Holder shall have any further rights under this Indenture or the Warrant Certificates (other than the right to receive Common Shares in respect of Warrants duly exercised prior to or at the Expiry Time, as the case may be), after the Expiry Time and the Warrants shall be null and void and of no effect.
Section 3.8 Accounting and Recording
Section 3.9 Securities Restrictions
Notwithstanding anything to the contrary, Warrants may only be transferred, Underlying Securities shall only be issued by the Corporation (upon exercise of the Warrants), and Underlying Securities may only be transferred in compliance with applicable law, including without limitation the Securities Laws. Without limiting the generality of the foregoing, the Corporation may direct the Warrant Agent to prohibit exercise of the Warrants or to legend any certificates representing the Underlying Securities if, in the opinion of counsel to the Corporation, such prohibition or legend is necessary or appropriate in order to avoid a violation of the applicable Securities Laws; provided that if, at any time, the Holder of any such Warrant or legended certificate, at his or her expense, provides the Corporation with evidence in form and substance reasonably satisfactory to the Corporation (which may include an opinion of Counsel of recognized standing in form and substance reasonably satisfactory to the Corporation) to the effect that such Holder is entitled to exercise such Warrant or to sell or otherwise transfer such legended Underlying Security, such Warrant may thereafter be exercised or such legended Underlying Security may thereafter be surrendered to the Warrant Agent in exchange for a certificate which does not bear such legends.
The Warrant Agent shall be entitled to assume that Common Shares may be issued pursuant to the exercise of any Warrant without violating any applicable Securities Laws and without legending any certificate representing the Common Shares unless the Warrant Agent has received notice in writing from the Corporation stating otherwise and setting forth the restrictions on the exercise of the Warrants and any legend the certificates representing the Common Shares should bear.
Section 4.1 Adjustment upon Common Share Reorganization or Capital Reorganization
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(any such event being herein called a "Common Share Reorganization"), then the number of Common Shares that a Holder is entitled to upon exercise shall be adjusted, effective immediately after the effective date of the Common Share Reorganization, by multiplying the number of Common Shares that a Holder was entitled to upon exercise of Warrants immediately prior to such effective date by a fraction of which:
(any such event being herein called a "Capital Reorganization"), then immediately upon the effective time of such Capital Reorganization and at all times thereafter, a Holder who exercises his right to acquire Common Shares shall be entitled to be issued and receive and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of Common Shares to which he was theretofore entitled upon exercise of his Warrants the kind and aggregate number of shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such Capital Reorganization or any other corporation that a Holder would have been entitled to be issued and receive upon such Capital Reorganization if, immediately prior to the effective time thereof, such Holder had been the registered holder of the number of Common Shares to which he was theretofore entitled upon exercise of his Warrants. For greater certainty, to the extent that a Capital Reorganization is undertaken in connection with an Acquisition Event, the provisions of Section 5.2 shall also be applicable, provided that the Warrants shall be deemed to have been adjusted pursuant to the terms hereof for the purpose of Section 5.2 and nothing in this Section 4.1(c) shall affect the purchase and expiry of Warrants that remain unexercised on the consummation of the Acquisition Event required by Section 5.2.
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thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Holder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(1)(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 12 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable, as determined by the Corporation, acting reasonably, to the adjustments provided in this Section 4.1(1)(c) and which shall apply to successive Capital Reorganizations.
Section 4.2 Adjustment Upon Rights Offering
Any Offered Shares owned by or held for the account of the Corporation or a Subsidiary shall be deemed not to be outstanding for the purpose of any such computation. If all the rights, options or warrants are not so issued or if all rights, options or warrants are not exercised prior to the expiration thereof, the number of Common Shares issuable upon exercise of a Warrant shall be readjusted to that number in effect immediately prior to the record date, and such number shall be further adjusted based upon the number of Offered Shares (or Convertible Securities that are convertible into Offered Shares) actually delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any event arising after that record date.
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the Holders of Common Shares are determined for purposes of the Special Distribution to a number that is the product of (1) the number of Common Shares issuable upon exercise of a Warrant in effect on the record date and (2) a fraction:
less
Any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. To the extent that the distribution of shares, rights, options, warrants, evidences of indebtedness or assets is not so made or to the extent that any rights, options or warrants so distributed are not exercised, the number of Common Shares issuable upon exercise of a Warrant shall be readjusted to the number that would then be in effect based upon shares, rights, options, warrants, evidences of indebtedness or assets actually distributed or based upon the number of Common Shares or Convertible Securities actually delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any event arising after the record date.
Section 4.3 Adjustment to Exercise Price
then the Exercise Price payable upon the subsequent exercise of any Warrants shall be simultaneously adjusted by multiplying the Exercise Price in effect immediately prior to such adjustment by a fraction which shall be the reciprocal of the fraction employed in the adjustment of the number of Common Shares issuable upon exercise of the Warrant, subject to readjustment upon the operation of, and in accordance with, the provisions of subsections 4.1(1), 4.2(1)(b) and/or 4.2(2)(b), as applicable.
Section 4.4 Entitlement to Shares and Other Securities on Exercise of Warrants
All shares of any class or other securities which a Holder is at the time in question entitled to receive on the exercise of his Warrants, whether or not as a result of adjustments made pursuant to this Article 4, shall, for the purposes of the interpretation of this Indenture, be deemed to be shares or other securities which such Holder is entitled to acquire pursuant to such Warrants.
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Section 4.5 No Adjustment for Stock Options, etc.
Notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Warrants if the issue of Common Shares, rights, options, warrants or securities exchangeable or convertible into Common Shares, is being made pursuant to this Indenture or pursuant to any stock option, stock purchase or other equity compensation plan in force from time to time for directors, officers, employees, consultants or other service providers of the Corporation, or being made to satisfy existing instruments issued and outstanding as of the date of this Indenture.
Section 4.6 Determination by Corporation's Auditors
In the event of any question arising with respect to any adjustments provided for in this Article 4, including the failure to adjust, such question shall be conclusively determined by the Corporation's Auditors or if they are unwilling or unable to act, by such other firm of independent accountants accredited by the Canadian Public Accountability Board as may be selected by the Directors, and they shall have access to all necessary records of the Corporation, and such determination shall be binding upon the Corporation, the Warrant Agent, all Holders and all other Persons interested therein.
Section 4.7 Proceedings Prior to Any Action Requiring Adjustment
As a condition precedent to the taking of any action which would require an adjustment in any of the acquisition rights pursuant to any of the Warrants, including the number of Common Shares which are to be received upon the exercise thereof, the Corporation shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation has sufficient authorized capital and that the Corporation may validly and legally issue as fully-paid and non-assessable all the shares, warrants and other securities which the holders of such Warrants are entitled to receive on the full exercise thereof in accordance with the provisions hereof.
Section 4.8 Action Requiring Adjustment
In case the Corporation, after the date hereof, shall take any action affecting the Common Shares, other than the actions described in this Article 4 which, in the opinion of the Directors or the Warrant Agent would materially affect the rights of the Holders and/or the acquisition rights of the Holders, then that number of Common Shares which are to be received upon the exercise of the Warrants shall be adjusted in such manner, if any, and at such time, by action of the Directors, in their discretion as they may reasonably determine to be equitable to the Holders in such circumstances, subject to the prior consent of the TSX or any other exchange on which the Corporation's securities are then listed.
Section 4.9 Certificate of Adjustment
The Corporation shall from time to time immediately after the occurrence of any event which requires an adjustment or readjustment as provided in Article 4, deliver a certificate of the Corporation to the Warrant Agent specifying the nature of the event requiring the same and the amount of the adjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate shall be supported by a certificate of the Corporation's Auditors verifying such calculation. The Warrant Agent shall rely, and shall be protected in so doing, upon the certificate of the Corporation or of the Corporation's Auditor and any other document filed by the Corporation pursuant to this Article 4 for all purposes.
Section 4.10 Notice of Special Matters
The Corporation covenants with the Warrant Agent that, so long as any Warrant remains outstanding, it will give notice to the Warrant Agent and to the Holders of its intention to fix a record date that is prior to the Expiry Date for any matter for which an adjustment may be required pursuant to this Article 4. Such notice shall specify the particulars of such event and the record date for such event, provided that the Corporation shall only be required to specify in the notice such particulars of the event as shall have been fixed and determined on the date on which the notice is given. The notice shall be given in each case not less than 14 days prior to such
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applicable record date. If notice has been given and the adjustment is not then determinable, the Corporation shall promptly, after the adjustment is determinable, file with the Warrant Agent a computation of the adjustment and give notice to the Holders of such adjustment computation.
Section 4.11 No Action After Notice
The Corporation covenants with the Warrant Agent that it will not close its transfer books or take any other corporate action which might deprive the Holder of a Warrant of the opportunity to exercise its right of acquisition pursuant thereto during the period of 14 days after the giving of the certificate or notices set forth in Section 4.9 and 4.10 respectively.
Section 4.12 Protection of Warrant Agent
Section 4.13 Adjustments Cumulative
The adjustments provided in this Article 4 shall be cumulative and such adjustments shall be made successively whenever an event referred to herein shall occur.
ARTICLE 5
PURCHASES BY THE CORPORATION
Section 5.1 Optional Purchase by the Corporation
Subject to compliance with Securities Laws and approval of applicable regulatory authorities, the Corporation may from time to time purchase on any stock exchange, in the open market, by private contract or otherwise any of the Warrants. Any such purchase shall be made at the lowest price or prices at which such Warrants are then obtainable (and accepted by the applicable seller(s) of Warrants), plus reasonable costs of purchase, and may be made in such manner, from such Persons, and on such other terms as the Corporation and the applicable seller(s) of such Warrants may agree. The Warrant Certificates representing Warrants purchased pursuant to this Section 5.1 shall forthwith be delivered to and cancelled by the Warrant Agent upon the written direction of the Corporation. No Warrants shall be issued in replacement thereof.
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Section 5.2 Acquisition Event
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ARTICLE 6
COVENANTS OF THE CORPORATION
Section 6.1 Issuance of Common Shares
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Section 6.2 To Pay Warrant Agent Remuneration and Expenses
The Corporation covenants that it shall pay to the Warrant Agent from time to time reasonable remuneration for its services hereunder and shall pay or reimburse the Warrant Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Warrant Agent in the administration or execution of its duties hereunder (including the reasonable compensation and the disbursements of its counsel and all other advisers and assistants not regularly in its employ) both before any default hereunder and thereafter until all duties of the Warrant Agent hereunder shall be finally and fully performed, except any such expenses, disbursement or advance as may arise out of or result from the Warrant Agent's gross negligence, wilful misconduct or bad faith. The Warrant Agent shall not have any recourse against the securities or any other property held by it pursuant to this Indenture for payment of its fees. This Section shall survive the resignation of the Warrant Agent or the termination of this Indenture. Any amount owing under this Section and unpaid thirty (30) days after request for such payment will bear interest from the expiration of such thirty (30) days at a rate per annum equal to the then current rate charged by the Warrant Agent, payable on demand.
Section 6.3 To Perform Covenants
The Corporation shall duly and punctually perform and carry out all of the acts or things to be done by it as provided in this Indenture and that it shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as the Warrant Agent may reasonably require for the better accomplishing and effecting the intentions and provisions of this Indenture.
Section 6.4 Warrant Agent May Perform Covenants
If the Corporation shall fail to perform any of its covenants contained in this Indenture, the Warrant Agent may notify the Holders of such failure on the part of the Corporation or may itself perform any of the covenants capable of being performed by it but shall be under no obligation to perform said covenants or to notify the Holders of such performance by it. All sums expended or advanced by the Warrant Agent in so doing shall be repayable as provided in Section 6.2. No such performance, expenditure or advance by the Warrant Agent shall relieve the Corporation of any default hereunder or of its continuing obligations under the covenants herein contained.
Section 6.5 Securities Qualification Requirements
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TSX or NASDAQ (or any other stock exchange upon which the Common Shares or the Warrants are listed) or any other step is required under Securities Laws before any Common Shares which a Holder is entitled to acquire pursuant to the exercise of any Warrant may properly and legally be issued upon due exercise thereof and thereafter traded, without further formality or restriction, the Corporation covenants that it will use its commercially reasonable best efforts to take such action as is required or appropriate in the circumstances.
Section 6.6 Corporation Reporting in the United States
The Corporation represents and warrants that it has reporting obligations with the SEC and has delivered to the Warrant Agent an Officers' Certificate certifying such "reporting issuer" status and other information as the Warrant Agent has requested, including, but not limited to, the Central Index Key that has been assigned for filing purposes. Should the Corporation cease to have an obligation to file reports with the SEC, the Corporation covenants to deliver to the Warrant Agent an Officers' Certificate (in a form provided by the Warrant Agent) certifying a change in "reporting issuer" status and such other information as the Warrant Agent may require at such given time. The Corporation understands that the Warrant Agent is relying upon the foregoing representation, warranty and covenants in order to meet certain SEC obligations with respect to those clients who are filing with the SEC.
Section 7.1 Suits by Holders of Warrants
Subject to Section 9.11, all or any of the rights conferred upon any Holder by any of the terms of the Warrant Certificates, Uncertificated Warrants or this Indenture may be enforced by the Holder by appropriate legal proceedings but without prejudice to the right which is hereby conferred upon the Warrant Agent to proceed in its own name to enforce each and all of the provisions herein contained for the benefit of the Holders.
Section 7.2 Waiver of Default
Upon the happening of any default hereunder the Holders holding Warrants exercisable to acquire not less than 51% of the aggregate number of Common Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants shall have the power (in addition to the powers exercisable by Extraordinary Resolution) by requisition in writing to instruct the Warrant Agent to waive any default hereunder and the Warrant Agent shall thereupon waive the default upon such terms and conditions as shall be prescribed in such requisition, provided however, the Warrant Agent shall have the power to waive any default hereunder upon such terms and conditions as the Warrant Agent may deem advisable, if, in the Warrant Agent's opinion based on the advice of counsel, the same shall have been cured or adequate provision made therefor.
No delay or omission of the Warrant Agent or of the Holders, as applicable, to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein and provided further that no act or omission either of the Warrant Agent or the Holders in the premises shall extend to or be taken in any manner whatsoever to affect any subsequent default hereunder or the rights resulting therefrom.
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ARTICLE 8
INTENTIONALLY DELETED
ARTICLE 9
MEETINGS OF HOLDERS OF WARRANTS
Section 9.1 Right to Convene Meeting
The Warrant Agent may at any time and from time to time and shall on receipt of a written request of the Corporation or a Holders' Request and upon being indemnified and funded to its reasonable satisfaction by the Corporation or by the Holders signing such request against the costs which may be incurred in connection with the calling and holding of such meeting, convene a meeting of the Holders. In the event of the Warrant Agent failing, within seven days after receipt of any such request and such indemnity and funding, to give notice convening a meeting, the Corporation or such Holders, as the case may be, may convene such meeting. Every such meeting shall be held in the City of Toronto, Ontario, or at such other place as may be approved or determined by the Warrant Agent.
Section 9.2 Notice of Meetings
At least 21 calendar days' notice of any meeting of the Holders shall be given to the Holders in the manner provided in Article 10 and a copy thereof must be sent to the Warrant Agent unless the meeting has been called by it and to the Corporation unless the meeting has been called by it. Such notice must state the time when and the place where the meeting is to be held and state briefly the general nature of the business to be transacted thereat with such information as to enable the Holders to make a reasoned decision on the matter, but it shall not be necessary for any such notice to set out the terms of any resolution to be proposed or any of the provisions of this Article.
Section 9.3 Chairman
An individual (who need not be a Holder) designated in writing by the Warrant Agent, shall be the chairman of the meeting and if no individual is so designated, or if the individual so designated is not present within 15 minutes from the time fixed for the holding of the meeting, the Holders present in Person or by proxy shall choose an individual present to be chairman.
Section 9.4 Quorum
Subject to Section 9.12, at any meeting of the Holders a quorum shall consist of Holders present in Person or by proxy and entitled to acquire at least 5% of the aggregate number of Common Shares which could be acquired pursuant to the exercise of all of the then outstanding Warrants, provided that at least two Persons entitled to vote thereat are personally present or represented by proxy. If a quorum is not present within 30 minutes from the time fixed for holding any meeting, the meeting, if summoned by the Holders or pursuant to a Holders' Request, shall be dissolved; but in any other case the meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day in which case it shall be adjourned to the next following Business Day) at the same time and place and no notice shall be required to be given in respect of such adjourned meeting. At the adjourned meeting the Holders present in Person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened notwithstanding that they may not be entitled to acquire at least 5% of the Common Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants.
Section 9.5 Power to Adjourn
The chairman of any meeting at which a quorum is present may with the consent of the meeting adjourn any such meeting and no notice of such adjournment need be given except such notice, if any, as the meeting may prescribe.
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Section 9.6 Show Of Hands
Every question submitted to a meeting shall be decided in the first place by a majority of the votes given on a show of hands except that votes on Extraordinary Resolutions shall be given in the manner hereinafter provided. At any such meeting, unless a poll is duly demanded as herein provided, a declaration by the chairman that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact.
Section 9.7 Poll
On every Extraordinary Resolution, and on any other question submitted to a meeting when demanded by the chairman or by one or more Holders and/or proxies for Holders, a poll must be taken in such manner and either at once or after an adjournment, as the chairman directs. Questions other than Extraordinary Resolutions shall, if a poll is taken, be decided by a majority of the votes cast on the poll.
Section 9.8 Voting
On a show of hands, every Person who is present and entitled to vote, whether as a Holder or as proxy for one or more Holders or both, shall have one vote. On a poll, each Holder present in Person or represented by a proxy duly appointed by an instrument in writing shall be entitled to one vote in respect of each Common Share to which that Person is entitled to acquire pursuant to the Warrant or Warrants held or represented by that Person. A proxy need not be a Holder. In the case of joint Holders of a Warrant, any one of them present in Person or by proxy at the meeting may vote in the absence of the other or others; but in case more than one of them is present in Person or by proxy, they must vote together in respect of the Warrants of which they are joint Holders. The chairman of any meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of any Warrants held or represented by him, but shall not have a second or deciding vote.
Section 9.9 Regulations
Section 9.10 Corporation And Warrant Agent May Be Represented
The Corporation and the Warrant Agent, by their respective officers or directors, and the legal advisers of the Corporation and the Warrant Agent, may attend any meeting of the Holders, and shall be recognized and
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given reasonable opportunity to speak to any resolutions proposed for consideration by the meeting, but shall not be entitled to vote thereat, whether in respect of any Warrants held by them or otherwise.
Section 9.11 Powers Exercisable By Extraordinary Resolution
Section 9.12 Meaning of "Extraordinary Resolution"
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proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by or on the requisition of the Holders, shall be dissolved; but in any other case it shall stand adjourned to the third Business Day following the date of such meeting, at the same time and place. At the adjourned meeting, the Holders present in Person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened and a resolution proposed at such adjourned meeting and passed by the requisite vote as provided in Section 9.12(1) shall be an Extraordinary Resolution within the meaning of this Indenture, notwithstanding that Holders entitled to acquire at least 5% of the Common Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants are not present in Person or by proxy at such adjourned meeting.
Section 9.13 Powers Cumulative
It is hereby declared and agreed that any one or more of the powers and/or any combination of the powers in this Indenture stated to be exercisable by the Holders by Extraordinary Resolution or otherwise may be exercised from time to time and the exercise of any one or more of such powers or any combination of powers from time to time shall not be deemed to exhaust the rights of the Holders to exercise the same or any other such power or combination of powers thereafter from time to time.
Section 9.14 Minutes
Minutes of all resolutions and proceedings at every meeting of Holders shall be made and duly entered in books to be from time to time provided for that purpose by the Warrant Agent at the expense of the Corporation, and any such minutes as aforesaid, if signed by the chairman or secretary of the meeting at which such resolutions were passed or proceedings had, or by the chairman or secretary of the next succeeding meeting (if any) of the Holders, shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting in respect of the proceedings of which minutes shall have been made shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings taken thereat, to have been duly passed and taken.
Section 9.15 Instruments in Writing
All actions which may be taken and all powers which may be exercised by the Holders at a meeting held as hereinbefore provided in this Article may also be taken and exercised by Holders entitled to acquire at least 51% of the Common Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants by an instrument in writing signed in one or more counterparts and the expression "Extraordinary Resolution" when used in this Indenture shall include an instrument so signed.
Section 9.16 Binding Effect of Resolutions
Every resolution and every Extraordinary Resolution passed in accordance with the provisions of this Article 9 at a meeting of Holders shall be binding upon all Holders, whether present at or absent from such meeting, and every instrument in writing signed by the Holders in accordance with Section 9.15 shall be binding upon all the Holders of Warrants, whether signatories thereto or not, and each and every Holder shall be bound to give effect accordingly to every such resolution, Extraordinary Resolution and instrument in writing. In the case of an instrument in writing, the Warrant Agent shall give notice of the effect of the instrument in writing to all Holders and the Corporation as soon as reasonably practicable.
Section 9.17 Holdings by Corporation and its Subsidiaries Disregarded
In determining whether a Holder holding Warrant Certificates evidencing the entitlement to acquire the required number of Common Shares are present at a meeting of Holders for the purpose of determining a quorum or have concurred in any consent, waiver, extraordinary resolution, Holders' Request or other action under this Indenture, Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation and not cancelled shall be disregarded.
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Section 10.1 Notice to the Corporation and the Warrant Agent
if to the Corporation:
DragonWave Inc.
600-411 Legget Drive
Ottawa, Ontario
K2K 3C9
Attention:
Russell Frederick, Chief Financial Officer
Fax: (613) 599-4265
if to the Warrant Agent:
Computershare
Trust Company of Canada
100 University Avenue
11th Floor, North Tower
Toronto, ON M5J 2Y1
Attention:
General Manager, Corporate Trust Department
Fax: (416) 981-9777
and any such notice delivered in accordance with the foregoing shall be deemed to have been received on the date of delivery or if sent by facsimile transmission, on the first Business Day following such transmission or, if mailed, on the fifth Business Day following the date of the postmark on such notice.
Section 10.2 Notice to Holders of Warrants
Except as herein otherwise expressly provided and subject to Section 10.3, any notice required or permitted to be given to Holders under the provisions of this Indenture shall be deemed to be validly given if personally delivered or if sent by ordinary post to the Holders at their addresses appearing in one of the registers hereinbefore mentioned. Any notice so sent shall be deemed to have been received on the next Business Day after the date of delivery to such address or, if mailed, on the fifth Business Day following the date on which it was mailed. In the event that Warrants are held in the name of the Depository, a copy of such notice shall also be sent by electronic communication to the Depository and shall be deemed received and given on the day it is so sent. Accidental error or omission in giving notice or accidental failure to give notice to Holders shall not invalidate any action or proceeding founded thereon. In determining under any provision hereof the date when notice of any meeting or other event must be given, the date of giving notice shall be included and the date of the meeting or other event shall be excluded.
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Section 10.3 Mail Service Information
ARTICLE 11
CONCERNING THE WARRANT AGENT
Section 11.1 Warrant Indenture Legislation
Section 11.2 No Conflict of Interest
The Warrant Agent represents to the Corporation to the best of its knowledge that at the date of the execution and delivery of this Indenture there exists no material conflict of interest in its duties and obligations as a warrant agent hereunder. In the event of a material conflict of interest arising in the Warrant Agent's role as warrant agent hereunder the Warrant Agent shall, as soon as practicable but in any case within 90 days after ascertaining that it has such material conflict of interest, either eliminate the same or assign its duties and obligations hereunder to a successor Warrant Agent approved by the Corporation. Notwithstanding the foregoing provisions of this Section, if any such material conflict of interest exists or hereafter shall exist, the validity and enforceability of this Indenture and the Warrant Certificate(s) shall not be affected in any manner whatsoever by reason hereof.
Section 11.3 Replacement of Warrant Agent
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new Warrant Agent appointed under any provision of this Section must be a corporation authorized to carry on the business of a trust company in the Province of Ontario and, if required by the applicable warrant indenture legislation of any other province, in that other province, and must be a corporation which is independent of the Corporation and has no material conflict of interest. On any new appointment the new Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as Warrant Agent without any further assurances conveyance, act or deed. If, for any reason, it becomes necessary or expedient to execute any further deed or assurance, the former Warrant Agent shall, at the expense of the Corporation, execute the same in favour of the new warrant agent.
Section 11.4 Evidence, Experts and Advisers
Section 11.5 Warrant Agent May Deal in Securities
Subject to Section 11.2, the Warrant Agent may buy, sell, lend upon and deal in securities of the Corporation and generally contract and enter into financial transactions with the Corporation or otherwise, without being liable to account for any profits made thereby.
Section 11.6 Warrant Agent Not Ordinarily Bound
Except as otherwise specifically provided herein, the Warrant Agent shall not, subject to the provisions of Indenture Legislation, be bound to give notice to any Person of the execution hereof, nor to do, observe or
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perform or see to the observance or performance by the Corporation of any of the obligations herein imposed upon the Corporation or of the covenants on the part of the Corporation herein contained.
Section 11.7 Warrant Agent Not Required To Give Security
The Warrant Agent shall not be required to give any bond or security in respect of the execution or administration of its duties under this Indenture or otherwise in respect of the premises.
Section 11.8 Warrant Agent Not Required To Give Notice of Default
The Warrant Agent shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required to do so under the terms hereof; nor shall the Warrant Agent be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Warrant Agent and in the absence of any such notice the Warrant Agent may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Warrant Agent to determine whether or not the Warrant Agent shall take action with respect to any default.
Section 11.9 Acceptance of Appointment
The Warrant Agent hereby accepts its appointment as warrant agent under this Indenture and agrees to perform its duties hereunder upon the terms and conditions herein set forth or referred to unless and until discharged therefrom by resignation or in some other lawful way.
Section 11.10 Duties of Warrant Agent
Section 11.11 Actions by Warrant Agent
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Section 11.12 Protection of Warrant Agent
Section 11.13 Indemnification of the Warrant Agent
The Warrant Agent and its officers, directors, employees, agents, successor and assigns shall at all times be indemnified and saved harmless by the Corporation from and against all claims, demands, losses, actions, causes of action, costs, charges, expenses, damages and liabilities whatsoever arising in connection with this Indenture, including, without limitation, those arising out of or related to actions taken or omitted to be taken by the Warrant Agent contemplated hereby, legal fees and disbursements on a solicitor and client basis and costs and expenses incurred in connection with the enforcement of this indemnity, which the Warrant Agent may suffer or incur, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of its duties as Warrant Agent. The foregoing provisions of this Section do not apply to the extent that in any circumstances there has been acts of gross negligence or wilful misconduct by the Warrant Agent or its officers, directors, employees, agents, successor and assigns. This indemnity shall survive the termination or discharge of this Indenture and the resignation or removal of the Warrant Agent.
Section 11.14 Third Party Interests
Each party to this Indenture hereby represents to the Warrant Agent that any account to be opened by, or interest to held by the Warrant Agent in connection with this Indenture, for or to the credit of such party, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party, in which case such party hereto agrees to complete and execute forthwith a declaration in the Warrant Agent's prescribed form as to the particulars of such third party.
Section 11.15 Not Bound To Act
The Warrant Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Warrant Agent, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Warrant Agent, in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to the Corporation, provided (i) that the Warrant Agent's written notice shall describe
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the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to the Warrant Agent's satisfaction within such ten day period, then such resignation shall not be effective.
Section 11.16 Privacy Laws
The parties acknowledge that federal and/or provincial legislation that addresses the protection of individuals' personal information (collectively, "Privacy Laws") applies to obligations and activities under this Indenture. Despite any other provision of this Indenture, neither party shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Corporation shall, prior to transferring or causing to be transferred personal information to the Warrant Agent, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Warrant Agent shall use commercially reasonable efforts to ensure that its services hereunder comply with Privacy Laws.
ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.1 Supplemental Indentures
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Section 13.1 Execution
This Indenture may be simultaneously executed in several counterparts, and may be executed by facsimile or other means of electronic communication producing a printed copy, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution they shall be deemed to be dated as of the date hereof.
Section 13.2 Rights of Rescission
Should a Holder of Warrants exercise any legal, statutory, contractual or other right of withdrawal or rescission that may be available to it, and the Holder's funds which were paid on exercise have already been released to the Corporation by the Warrant Agent, the Warrant Agent shall not be responsible for ensuring the exercise is cancelled and a refund is paid back to the Holder. In such cases, the Holder shall seek a refund directly from the Corporation and subsequently, the Corporation shall instruct the Warrant Agent in writing, to cancel the exercise transaction and any Underlying Securities on the register, which may have already been issued upon the Warrant exercise. In the event that any payment is received from the Corporation by virtue of the Holder being a shareholder for such Warrants that were subsequently rescinded, such payment must be returned to the Corporation by such holder. The Warrant Agent shall not be under any duty or obligation to take any steps to ensure or enforce that the funds are returned pursuant to this section, nor shall the Warrant Agent be in any other way responsible in the event that any payment is not delivered or received pursuant to this Section. Notwithstanding the foregoing, in the event that the Corporation provides the refund to the Warrant Agent for distribution to the holder, the Warrant Agent shall return such funds to the holder as soon as reasonably practicable, and in so doing, the Warrant Agent shall incur no liability with respect to the delivery or non-delivery of any such funds.
Section 13.3 Force Majeure
Neither party shall be liable to the other, or held in breach of this Indenture, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section.
Section 13.4 Satisfaction and Discharge of Indenture
Upon the earlier of:
and if all certificates representing Common Shares, if any, required to be issued in compliance with the provisions hereof have been issued and delivered hereunder or to the Warrant Agent in accordance with such provisions, this Indenture shall cease to be of any force and effect and the Warrant Agent, on demand of and at the cost and expense of the Corporation and upon delivery to the Warrant Agent of a certificate of the Corporation stating that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture. Notwithstanding the foregoing, the indemnities provided to the Warrant Agent by the Corporation hereunder shall remain in full force and effect and survive the termination of this Indenture.
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Section 13.5 Warrants Owned by the Corporation or its Subsidiaries Certificate to be Provided
For the purpose of disregarding any Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation in Section 9.17 hereof, the Corporation shall provide to the Warrant Agent, from time to time, a certificate of the Corporation setting forth as at the date of such certificate:
and the Warrant Agent, in making the computations in Section 9.17 hereof, shall be entitled to rely on such certificate without any additional evidence.
Section 13.6 Provisions of Indenture and Warrants for the Sole Benefit of Parties and Holders
Nothing in this Indenture or in the Warrant Certificates, expressed or implied, shall give or be construed to give to any Person other than the parties thereto and the Holders, as the case may be, any legal or equitable right, remedy or claim under this Indenture, or under any covenant or provision herein or therein contained, all such covenants and provisions being for the sole benefit of the parties hereto and the Holders.
Section 13.7 Stock Exchange Consents
Any action provided for in this Indenture requiring the prior consent of any stock exchange upon which the Common Shares or Warrants, as applicable, may be listed shall not be completed until the requisite consent is obtained.
[Remainder of page left intentionally blank. Signature page follows.]
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IN WITNESS WHEREOF the parties hereto have executed these presents under the hands of their proper officers in that behalf.
DRAGONWAVE INC. | ||||
By: |
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Name: Russell Frederick Title: Chief Financial Officer |
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COMPUTERSHARE TRUST COMPANY OF CANADA |
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By: |
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Authorized Signing Officer |
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By: |
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Authorized Signing Officer |
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SCHEDULE "A"
DRAGONWAVE INC.
FORM OF WARRANT CERTIFICATE
Certificate No. CUSIP |
Common Share Purchase Warrants |
THE WARRANTS REPRESENTED HEREBY WILL BE VOID AFTER THE TIME OF EXPIRY AS DESCRIBED HEREIN. DO NOT DESTROY THIS CERTIFICATE.
THIS CERTIFICATE IS TO CERTIFY that for value received (herein referred to as the "Holder") is the registered holder of the number of Warrants of DragonWave Inc. (the "Corporation") stated above, and subject to adjustment and penalty provisions as set forth in the Warrant Indenture, is entitled to acquire, at any time after the date hereof and up until 5:00 p.m. (Toronto time) on , 2016 or the next succeeding Business Day if such date is not a Business Day (the "Expiry Date"), upon payment of the "Exercise Price" of C$ , payable in Canadian currency, for each Warrant represented hereby, one common share of the Corporation (a "Common Share"), all in the manner and subject to the restrictions and adjustments set forth in the Warrant Indenture (as hereinafter defined).
Any capitalized term in this Certificate that is not otherwise defined herein, shall have the meaning ascribed thereto in the Warrant Indenture. In the event of any discrepancy between anything contained in this Warrant Certificate and the terms and conditions of the Warrant Indenture, the terms and conditions of the Warrant Indenture shall govern.
The Warrants represented by this Certificate are issued or issuable in fully registrable form only under the provisions of an indenture (which indenture together with all other instruments ancillary thereto is referred to herein as the "Warrant Indenture") dated as of September , 2013 among the Corporation and Computershare Trust Company of Canada (the "Warrant Agent"). Reference is hereby made to the Warrant Indenture for a full description of the rights of the holders of the Warrants, the Corporation and the Warrant Agent in respect thereof, and the terms and conditions upon which the Warrants evidenced hereby are issued and held, all to the same effect as if the provisions of the Warrant Indenture were herein set forth. By acceptance of this Certificate, the Holder assents to all provisions of the Warrant Indenture. To the extent that the terms and conditions set forth in this Certificate conflict with the terms and conditions of the Warrant Indenture, the Warrant Indenture shall prevail. The Corporation will furnish to the holder of this Certificate, upon request and without charge, a copy of the Warrant Indenture.
In the event that prior to the Expiry Date, the Holder has not exercised the Warrants represented hereby in accordance with the terms of the Warrant Indenture, then any Warrants represented by this Certificate which have not been so exercised shall be deemed to have expired and shall be of no further force and effect as of 5:00 p.m. (Toronto time) on the Expiry Date.
Upon exercise, the Warrants so exercised shall be void and of no value or effect.
Certificates representing the Common Shares issued upon exercise of the Warrants (reflecting any adjustments as provided herein and in the Warrant Indenture) shall, within three Business Days after the Exercise Date, be mailed by the Corporation to the address of the Holder thereof last appearing on the register of Holders maintained by the Warrant Agent.
The right to acquire Common Shares may only be exercised by the Holder within the time set forth above by:
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all in accordance with Section 3.2 of the Warrant Indenture.
If at the time of exercise hereof there is no effective Registration Statement under the U.S. Securities Act registering, or the prospectus contained therein is not available for the issuance of the Common Shares to the Holder on the exercise of the Warrants represented hereby, then a Holder may also exercise the Warrants, in whole or in part, at such time by means of a "cashless exercise" in accordance with 3 of the Warrant Indenture.
The Warrants represented by this Certificate shall be deemed to be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Warrant Agent at the offices referred to above.
Upon surrender of these Warrants, the Person or Persons in whose name or names the Common Shares issuable upon exercise of the Warrants are to be issued shall be deemed for all purposes (except as provided in the Warrant Indenture) to be the holder or holders of record of such Common Shares and the Corporation has covenanted that it will (subject to the provisions of the Warrant Indenture) cause a certificate or certificates representing the Common Shares to be delivered or mailed to the Person or Persons at the address or addresses specified in the Exercise Form within three Business Days.
The Warrant Indenture provides for adjustments to certain rights of Holders including the number of Common Shares issuable upon exercise of the Warrants upon subdivision, consolidation or reclassification of the Common Shares or Capital Reorganizations and certain distributions of securities, including rights, options or warrants to purchase Common Shares or securities convertible or exchangeable into Common Shares or assets of the Corporation. The Holder should refer to the Warrant Indenture which provides for adjustments in certain other events.
Section 5.2 of the Warrant Indenture requires the Corporation or any acquirer of the Corporation or its business (as determined by the Board of Directors), or any Affiliate of any of them, to purchase, and for the Holder to sell, all Warrants which on the consummation of an Acquisition Event have not been exercised for cash in an amount equal to the Black Scholes Value (as such term is defined in the Warrant Indenture). Payment with respect to the purchase and sale of any Warrants under Section 5.2 of the Warrant Indenture is to be made within five (5) business days following the date of the consummation of the Acquisition Event.
The terms and conditions relating to the Warrants and this Certificate may be modified, changed or added to in accordance with the provisions of the Warrant Indenture. The Warrant Indenture contains provisions making binding upon all Holders of Warrants outstanding thereunder resolutions passed at meetings of such Holders held in accordance with such provisions and instruments in writing signed by the Holders entitled to acquire a specified percentage of the Common Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants.
The holding of the Warrants as evidenced by this Certificate shall not constitute, or be construed as conferring upon, a Holder any right or interest whatsoever as a shareholder of the Corporation except such rights as may be provided in the Warrant Indenture or in this Certificate.
The Holder of this Certificate may, upon compliance with the reasonable requirements of the Warrant Agent and upon surrender of this Certificate, exchange this Certificate for another Certificate or Certificates entitling the Holder thereof to receive, in the aggregate, the same number of Common Shares as are issuable under this Certificate.
The Warrants evidenced by this Certificate may only be transferred in accordance with applicable Securities Laws and upon due execution and delivery to the Warrant Agent of a Transfer Form in the form attached hereto and in compliance with all the conditions prescribed in the Warrant Indenture and compliance with such other reasonable requirements as the Warrant Agent may prescribe.
The Warrants evidenced hereby shall not be exercised by any person during any time that no registration statement under the U.S. Securities Act registering the Common Shares issuable upon the exercise of the Warrants evidenced hereby is effective, unless an exemption from the registration requirements to the
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U.S. Securities Act is available and such holder provides evidence of the availability of such exemption reasonably satisfactory to the Corporation and the Warrant Agent.
This Warrant Certificate shall not be valid for any purpose until it has been countersigned by or on behalf of the Warrant Agent under the Warrant Indenture.
The registered holder of this Warrant Certificate expressly acknowledges having requested, and consents to, the drawing in the English language only of this Warrant Certificate evidencing the Warrants registered in his name and all documents relating to such Warrants. Le détenteur inscrit du présent certificat de bons de souscription reconnaît expressément avoir demandé et consenti que le présent certificat attestant qu'il est le détenteur inscrit de bons de souscription, ainsi que tous les documents s'y rapportant, soient rédigés en anglais seulement.
Time shall be of the essence hereof.
[Remainder of page left intentionally blank. Signature page follows.]
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IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed as of the day of , 20 .
DRAGONWAVE INC. | ||||
By: |
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Name: Title: |
This Warrant Certificate is one of the Warrant Certificates referred to in the Warrant Indenture.
COMPUTERSHARE TRUST COMPANY OF CANADA |
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By: |
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Authorized Signing Officer |
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TO: |
DRAGONWAVE INC. |
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AND TO: |
COMPUTERSHARE TRUST COMPANY OF CANADA |
Name in full | Address (include Postal Code) | Number of Common Shares |
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(Please print full name in which certificate(s) are to be issued.)
o |
Cash exercise |
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o |
Cashless exercise (if available under Article 3 of the Warrant Indenture) |
Dated this day of , .
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o | Please check box if certificates representing these Common Shares are to be delivered at the office of the Warrant Agent where this Warrant Certificate is surrendered, failing which the certificates shall be mailed to the address set forth above. |
Instructions:
The registered holder may exercise his right to receive Common Shares by completing this form and surrendering this form and the Warrant Certificate representing the Warrants being exercised, together with the applicable payment therefor, to Computershare Trust Company of Canada, 100 University Avenue, 9th Floor, North Tower, Toronto, Ontario, M5J 2Y1. Certificates for Common Shares shall be delivered or mailed within three Business Days after the exercise of the Warrants.
If the Exercise Form indicates that Common Shares are to be issued to a Person or Persons other than the registered holder of the Certificate, the signature on this Exercise Form must be guaranteed by a Canadian chartered bank or eligible guarantor institution with membership in an approved signature guarantee medallion program.
If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any Person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Warrant Agent and the Corporation.
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TO: |
COMPUTERSHARE TRUST COMPANY OF CANADA |
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers to
(print name and address) the Warrants represented by this Warrants Certificate and hereby irrevocably constitutes and appoints as its attorney with full power of substitution to transfer the said securities on the appropriate register of the Warrant Agent.
DATED this day of , 20 .
SPACE FOR GUARANTEES OF SIGNATURES (BELOW) |
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Signature of Transferor |
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Name of Transferor |
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CERTAIN REQUIREMENTS RELATING TO TRANSFERS READ CAREFULLY
The signature(s) of the transferor(s) must correspond with the name(s) as written upon the face of this certificate(s), in every particular, without alteration or enlargement, or any change whatsoever. The signature(s) on this form must be guaranteed in accordance with the transfer agent's then current guidelines and requirements at the time of transfer. Notarized or witnessed signatures are not acceptable as guaranteed signatures. As at the time of closing, you may choose one of the following methods (although subject to change in accordance with industry practice and standards):
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