Exhibit 4-pp
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XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
and
THE CHASE MANHATTAN BANK, Warrant Agent
UNIVERSAL WARRANT AGREEMENT
dated as of June 2, 1997
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TABLE OF CONTENTS
Page
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ARTICLE 1
Universal Warrants
Section 1.1. Ranking.................................................... 1
Section 1.2. Form, Execution and Delivery of Warrant
Certificates............................................. 1
Section 1.3. Number Unlimited; Issuable in Series....................... 3
Section 1.4. Countersignature and Delivery of Warrant
Certificates............................................. 5
Section 1.5. Place of Exercise; Registration of Transfers
and Exchanges............................................ 9
Section 1.6. Mutilated or Missing Warrant Certificates.................. 13
Section 1.7. Registered Holders......................................... 14
Section 1.8. Cancellation............................................... 15
Section 1.9. Additional Warrant Agents.................................. 15
Section 1.10. Appointment of Calculation Agents.......................... 16
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.1. Duration and Exercise of Universal Warrants................. 16
Section 2.2. Return of Money Held Unclaimed for Two Years................ 16
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.1. Warrantholder May Enforce Rights............................ 17
Section 3.2. No Rights as Holder of Warrant Property
Conferred by Universal Warrants or Warrant Certificates.... 17
Section 3.3. Merger, Consolidation, Conveyance or Transfer............... 17
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.1. Universal Warrants Acquired by the Company.................. 18
Section 4.2. Payment of Taxes............................................ 19
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent............................................... 19
Section 5.2. Condition of Warrant Agent's Obligations.................... 19
Section 5.3. Resignation and Appointment of Successor.................... 21
ARTICLE 6
Miscellaneous
Section 6.1. Amendment................................................... 23
Section 6.2. Notices and Demands to the Company and the
Warrant Agent............................................. 24
Section 6.3. Addresses for Notices....................................... 25
Section 6.4. Notices to Warrantholders................................... 25
Section 6.5. Obtaining of Approvals...................................... 25
Section 6.6. Persons Having Rights under this Agreement.................. 25
Section 6.7. Inspection of Agreement..................................... 26
Section 6.8. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein........................ 26
Section 6.9. Payments Due on Saturdays, Sundays and
Holidays.................................................. 27
Section 6.10. Judgment Currency........................................... 27
Section 6.11. Headings.................................................... 28
Section 6.12. Counterparts................................................ 28
Section 6.13. Applicable Law.............................................. 28
TESTIMONIUM............................................................... 26
SIGNATURES................................................................ 26
Exhibit I --Form of Registered Call Warrant Certificate
Exhibit II --Form of Registered Put Warrant Certificate
WARRANT AGREEMENT
THIS AGREEMENT, dated as of June 2, 1997, between XXXXXX
XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a corporation organized and existing
under the laws of the State of Delaware (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time
to time of warrants (the "Universal Warrants") to purchase or sell (i)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of
the above, (ii) currencies or composite securities or (iii) commodities
(the property described in clauses (i), (ii) and (iii), in relation to a
Universal Warrant, being hereinafter referred to as the "Warrant Property"
applicable to such Universal Warrant) to be issued in one or more series
and in such number and with such terms as may from time to time be
authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and
delivery of this Agreement to provide, among other things, for the delivery
and administration of the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid
agreement according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Universal Warrants
Section 1.1. Ranking. The Universal Warrants are unsecured contractual
obligations of the Company and will rank pari passu with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
Section 1.2. Form, Execution and Delivery of Warrant
Certificates. (a) Certificates ("Warrant Certificates") evidencing the
Universal Warranties of each series shall be substantially in the form of
Exhibits I and II hereto or in such form (not inconsistent with this
Agreement) as shall be established by or pursuant to one or more Board
Resolutions (as defined below) (as set forth in a Board Resolution or, to the
extent established pursuant to, rather than set forth in, a Board Resolution,
in an Officer's Certificate (as defined below) detailing such establishment)
or in one or more agreements supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. The Warrant Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Company executing the same may approve (execution thereof to
be conclusive evidence of such approval) and that are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto, or with any rule or
regulation of any self-regulatory organization (an "SRO") on which the
Universal Warrants of such series may be listed, or of any securities
depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company by the chief financial officer, the treasurer or any
assistant treasurer or such other person specifically designated by the Board
of Directors to execute Warrant Certificates, which signature may or may not
be attested by the secretary or an assistant secretary of the Company. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall
not affect the validity or enforceability of any Warrant Certificate that has
been duly countersigned and delivered by the Warrant Agent.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect, and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the
Company or any committee of such Board duly authorized to act on its behalf
for the purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chief
financial officer, the treasurer or any assistant treasurer or such other
person specifically designated by the Board of Directors to execute any such
certificate and delivered to the Warrant Agent. Without limiting the
generality of the foregoing, if the Universal Warrants of any series are to be
issued as components of a unit ("Unit") with one or more other securities of
the Company, an officer's certificate or similar certificate relating to the
Universal Warrants delivered pursuant to an indenture or unit agreement or
similar agreement governing such Units or one or more other components thereof
may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be
such officer of the Company; and a Warrant Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
(c) Pending the preparation of final Warrant Certificates
evidencing Universal Warrants of any series, the Company may execute and the
Warrant Agent shall countersign and deliver temporary Warrant Certificates
evidencing such Universal Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the
form of the final Warrant Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Warrant Certificates, all as
may be determined by the Company with the concurrence of the Warrant Agent.
Such temporary Warrant Certificates may contain such reference to any
provisions of this Warrant Agreement as may be appropriate. Every such
temporary Warrant Certificate shall be executed by the Company and shall be
countersigned by the Warrant Agent upon the same conditions and in
substantially the same manner, and with like effect, as the final Warrant
Certificates. Without unreasonable delay, the Company shall execute and shall
furnish final Warrant Certificates and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates final Warrant Certificates evidencing a like aggregate
number of Universal Warrants of the same series and of like tenor as those
evidenced by such temporary Warrant Certificates. Until so exchanged, such
temporary Warrant Certificates and the Universal Warrants evidenced thereby
shall be entitled to the same benefits under this Warrant Agreement as final
Warrant Certificates and the Universal Warrants evidenced thereby.
Section 1.3. Number Unlimited; Issuable in Series. (a) The
aggregate number of Universal Warrants that may be delivered under this
Agreement is unlimited.
(b) The Universal Warrants may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to, rather than set forth in, a
Board Resolution, in an Officer's Certificate detailing such establishment)
or established in one or more agreements supplemental hereto, prior to the
initial issuance of Universal Warrants of any series;
(i) the designation of the Universal Warrants of the series,
which shall distinguish the Universal Warrants of the series from the
Universal Warrants of all other series;
(ii) any limit upon the aggregate number of the Universal
Warrants of the series that may be countersigned and delivered under
this Agreement (except for Universal Warrants countersigned and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Universal Warrants of the series);
(iii) the specific Warrant Property purchasable or salable
upon exercise of the Universal Warrants of the series, and the amount
thereof (or the method for determining the same);
(iv) the price at which the Universal Warrants of the series
will be issued and, if other than U.S. dollars, the coin or currency
or composite currency in which such issue price will be payable;
(v) whether the Universal Warrants of the series are
warrants to purchase ("call warrants") or warrants to sell ("put
warrants") the Warrant Property;
(vi) the price at which and, if other than U.S. Dollars, the
coin or currency or composite currency with which the Warrant Property
may be purchased or sold upon exercise of the Universal Warrants of
the series (or the method for determining the same);
(vii) whether the exercise price for the Universal Warrants of
the series may be paid in cash or by the exchange of any other
security of the Company, or both, or otherwise, and the method of
exercise of the Universal Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the
series is to be settled in cash or by delivery of the Warrant Property
or both, or otherwise;
(ix) the date on which the right to exercise the Universal
Warrants of the series shall commence and the date (the "Expiration
Date") on which such right shall expire or, if the Universal Warrants
of the series are not continuously exercisable throughout such period,
the specific date or dates on which they will be exercisable;
(x) whether the Warrant Certificates representing the
Universal Warrants of the series will be in registered form
("Registered Warrants") or bearer form ("Bearer Warrants") or both;
(xi) whether the Warrant Certificates evidencing any
Registered Warrants or Bearer Warrants of the series will be issued in
global form ("Global Warrant Certificates") or definitive form
("Definitive Warrant Certificates") or both, and whether and on what
terms (if different from those set forth herein) Warrant Certificates
in one form may be converted into or exchanged for Warrant
Certificates in the other form;
(xii) any warrant agents, depositaries, authenticating or
paying agents, transfer agents or registrars or any determination or
calculation agents or other agents with respect to Universal Warrants
of the series;
(xiii) whether the Universal Warrants of the series will be
issued separately or together as a unit (a "Unit") with one or more
other securities of the Company or any other person and, if the
Universal Warrants of the series are to be issued as components of
Units, whether and on what terms the Universal Warrants of the series
may be separated from the other components of such Units prior to the
Expiration Date of such Universal Warrants; and
(xiv) any other terms of the Universal Warrants of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Universal Warrants of any one series shall be
substantially identical, except as may otherwise be provided by or pursuant
to the Board Resolution or Officer's Certificate referred to above or as
set forth in any such agreement supplemental hereto. All Universal
Warrants of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Agreement, if
so provided by or pursuant to such Board Resolution, such Officer's
Certificate or in any such agreement supplemental hereto.
Section 1.4. Countersignature and Delivery of Warrant
Certificates. (a) The Company may deliver Warrant Certificates evidencing
Universal Warrants of any series executed by the Company to the Warrant Agent
for countersignature together with the applicable documents referred to below
in this Section, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates to or upon the order of the Company (contained in
the Issuer Order (as defined below) referred to below in this Section) or
pursuant to such procedures acceptable to the Warrant Agent as may be
specified from time to time by an Issuer Order. Any terms of the Universal
Warrants evidenced by such Warrant Certificates may be determined by or
pursuant to such Issuer Order or such other procedures. If provided for in
such procedures, such Issuer Order may authorize countersignature and delivery
pursuant to oral instructions from the Company or its duly authorized agent,
which instructions shall be promptly confirmed in writing. In countersigning
such Warrant Certificates and accepting the responsibilities under this
Agreement in relation to the Universal Warrants evidenced by such Warrant
Certificates, the Warrant Agent shall be entitled to receive (in the case of
subparagraphs 1.4(a)(ii), 1.4(a)(iii) and 1.4(a)(iv) below only at or before
the time of the first request of the Company to the Warrant Agent to
countersign Warrant Certificates in a particular form evidencing Universal
Warrants) and shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and
setting forth delivery instructions if the Warrant Certificates are
not to be delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or
executed supplemental agreement pursuant to which the forms and terms
of the Universal Warrants evidenced by such Warrant Certificates were
established;
(iii) an Officer's Certificate setting forth the forms and
terms of the Universal Warrants evidenced by such Warrant Certificates
stating that the form or forms and terms of the Universal Warrants
evidenced by such Warrant Certificates have been established pursuant
to Sections 1.2 and 1.3 and comply with this Agreement, and covering
such other matters as the Warrant Agent may reasonably request; and
(iv) At the option of the Company, either an Opinion of
Counsel (as defined below) or a letter addressed to the Warrant Agent
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(A) the forms of the Warrant Certificates have been
duly authorized and established in conformity with the provisions
of this Agreement;
(B) in the case of an underwritten offering, the terms
of the Universal Warrants have been duly authorized and
established in conformity with the provisions of this Agreement
and, in the case of an offering that is not underwritten, certain
terms of the Universal Warrants have been established pursuant to
a Board Resolution, an Officer's Certificate or a supplemental
agreement in accordance with this Agreement, and when such other
terms as are to be established pursuant to procedures set forth
in an Issuer Order shall have been established, all terms will
have been duly authorized by the Company and will have been
established in conformity with the provisions of this Agreement;
and
(C) when the Warrant Certificates have been executed
by the Company and countersigned by the Warrant Agent in
accordance with the provisions of this Agreement and delivered to
and duly paid for by the purchasers thereof, subject to such
other conditions as may be set forth in such opinion of counsel,
they will have been duly issued under this Agreement and the
Universal Warrants evidenced thereby will be valid and legally
binding obligations of the Company, enforceable in accordance
with their respective terms, and will be entitled to the benefits
of this Agreement.
In rendering such opinions, such counsel may qualify any opinions
as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to
the Warrant Agent), who shall be counsel reasonably satisfactory
to the Warrant Agent, in which case the opinion shall state that
such counsel believes he and the Warrant Agent are entitled so to
rely. Such counsel may also state that, insofar as such opinion
involves factual matters, such counsel has relied, to the extent
such counsel deems proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public
officials.
"Issuer Order" means a written statement, request or order
of the Company signed in its name by the chief financial officer, the
treasurer or any assistant treasurer or such other person specifically
designated by the Board of Directors to execute any such written
instrument, request or order. Without limiting the generality of the
foregoing, if the Universal Warrants of a series are issued as components
of Units, an issuer order or similar order relating to the Universal
Warrants delivered pursuant to an indenture or unit or similar agreement
governing such Units or one or more other components thereof may also
constitute an Issuer Order under this Agreement if addressed to the Warrant
Agent.
"Opinion of Counsel" means an opinion in writing signed by
Xxxxx & Xxxx LLP or by such other legal counsel, who may be an employee of or
counsel to the Company, and who shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to
countersign and deliver any Warrant Certificates under this Section if the
Warrant Agent, being advised by counsel, determines that such action may not
lawfully be taken by the Company or if the Warrant Agent in good faith
determines that (i) such action would expose the Warrant Agent to personal
liability to existing registered or beneficial holders of Universal Warrants
(each, a "Warrantholder") or would affect the Warrant Agent's own rights,
duties or immunities under the Warrant Certificates, the Universal Warrants,
this Agreement or otherwise or (ii) the terms of such Universal Warrants are
administratively unacceptable to it.
(c) If the Company shall establish pursuant to Section 1.3 that
the Universal Warrants of a series are to be evidenced in whole or in part
by one or more Global Warrant Certificates, then the Company shall execute
and the Warrant Agent shall, in accordance with this Section and the Issuer
Order with respect to such series, countersign and deliver one or more
Global Warrant Certificates that (i) shall evidence all or part of the
Universal Warrants of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary (as defined below)
for such Universal Warrants or the nominee of such Depositary, (iii) shall
be delivered by the Warrant Agent to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants
of any series that are or may be evidenced by one or more Global Warrant
Certificates, the person or persons designated as Depositary by the Company
pursuant to Section 1.3 hereof until a successor Depositary shall have
become such pursuant to the applicable provisions of this Agreement, and
thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such
person, "Depositary" as used with respect to the Universal Warrants of any
such series shall mean the Depositary with respect to that series.
(d) If so required by applicable law, each Depositary for a series
of Universal Warrants must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or
regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose,
and no Universal Warrant evidenced thereby shall be exercisable, unless and
until such Warrant Certificate has been countersigned by the manual signature
of an authorized officer of the Warrant Agent. Such countersignature by an
authorized officer of the Warrant Agent upon any Warrant Certificate executed
by the Company in accordance with this Agreement shall be conclusive evidence
that the Warrant Certificate so countersigned and the Universal Warrants
evidenced thereby have been duly issued hereunder.
Section 1.5. Place of Exercise; Registration of Transfers and
Exchanges. (a) Except as otherwise established pursuant to Section 1.3 with
respect to Universal Warrants of a series, Universal Warrants may be presented
for exercise at the Warrant Agent's Window (as defined below) in accordance
with procedures to be established pursuant to Section 1.3.
(b) Except as otherwise provided herein or as established pursuant
to Section 1.3 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained
by it for that purpose (the "Warrant Register") at the Warrant Agent's Office
(as defined below), subject to such reasonable regulations as the Company or
the Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined
below), Attention: Transfer Department, duly endorsed by, or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent and the Company duly executed by, the Registered Holder(s) (as
defined below) thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a bank or
trust company with a correspondent office in The City of New York or by a
broker or dealer that is a member of the National Association of Securities
Dealers, Inc. (the "NASD") or by a member of a national securities exchange or
in such other manner acceptable to the Warrant Agent and the Company. Upon
any such registration of transfer, one or more new Warrant Certificates of the
same series and like terms evidencing a like number of unexercised Universal
Warrants shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.3, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. The "Warrant Agent's Window"
shall be the window of the Warrant Agent maintained for purposes of transfer
and tender in the Borough of Manhattan, The City of New York (or at the
address of any additional agency established by the Company pursuant to
Section 1.8 hereof, or at the address of any successor Warrant Agent (as
provided in Section 5.3)), which is, on the date of this Agreement, The Chase
Manhattan Bank, Corporate Trust Securities Window, 00 Xxxxx Xxxxxx, Room 000,
Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. If the Universal Warrants of any
series are issued in both registered and unregistered form, except as
otherwise established for such series pursuant to Section 1.3, at the option
of the holder thereof, Warrant Certificates evidencing Bearer Warrants of any
series may be exchanged for Definitive Warrant Certificates evidencing an
equal number of unexercised Registered Warrants of the same series and of like
tenor upon surrender of such Warrant Certificates evidencing Bearer Warrants
to be exchanged at the Warrant Agent's Window, Attention: Transfer Department.
Unless otherwise established for such series pursuant to Section 1.3,
Registered Warrants of any series may not be exchanged for Bearer Warrants of
such series. Upon surrender of any unexercised Warrant Certificate for
exchange, the Warrant Agent shall cancel such Warrant Certificate, and the
Company shall execute, and the Warrant Agent shall countersign and deliver,
one or more new Warrant Certificates evidencing a like number of unexercised
Universal Warrants of the same series and of like tenor.
(d) Universal Warrants evidenced by the Warrant Certificates
issued upon transfer or exchange pursuant to paragraph (b) or (c) of this
Section shall be valid obligations of the Company, constituting the same
obligations of the Company as the Universal Warrants evidenced by the
Warrant Certificates surrendered for transfer or exchange, and entitled to
the same benefits under this Agreement as were such Universal Warrants
evidenced by the Warrant Certificates prior to such surrender.
(e) Except as provided in Section 1.6, no service charge shall be
made for any registration of transfer or exchange of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates, other than exchanges pursuant to
this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof
(or, in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless
and until it is exchanged in whole or in part for Definitive Warrant
Certificates, a Global Warrant Certificate evidencing all or a portion of the
Universal Warrants of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be eligible under this Agreement, the Company shall appoint a
successor Depositary with respect to such series. If a successor Depositary
for such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 1.3 that such series be evidenced by
one or more Global Warrant Certificates shall no longer be effective and the
Company will execute, and the Warrant Agent, upon receipt of an Officer's
Certificate for the countersignature and delivery of Definitive Warrant
Certificates evidencing Universal Warrants of such series, will countersign
and deliver Definitive Warrant Certificates evidencing Universal Warrants of
such series and of like tenor in an aggregate number equal to the number of
the unexercised Universal Warrants represented by such Global Warrant
Certificate or Certificates in exchange for such Global Warrant Certificate or
Certificates.
(j) If established pursuant to Section 1.3 with respect to a
series of Universal Warrants evidenced in whole or in part by one or more
Global Warrant Certificates, the Depositary for such series may surrender such
Global Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same
series and of like tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Warrant Agent
shall countersign and deliver, without service charge,
(i) to the person specified by such Depositary a new
Definitive Warrant Certificate of the same series and of like tenor in
an aggregate number equal to and in exchange for such person's
beneficial interest in the Universal Warrants evidenced by such Global
Warrant Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same series and of
like tenor in number equal to the difference, if any, between the
number of unexercised Universal Warrants evidenced by the surrendered
Global Warrant Certificates and the number of unexercised Universal
Warrants evidenced by such Definitive Warrant Certificate
countersigned and delivered pursuant to clause 1.5(j)(i) above.
Upon the exchange of a Global Warrant Certificate for
Definitive Warrant Certificates, such Global Warrant Certificate shall be
canceled by the Warrant Agent or an agent of the Company or the Warrant Agent.
Registered Definitive Warrant Certificates issued in exchange for a Registered
Global Warrant Certificate pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
series, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent or an agent of the Company or the
Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant
Certificates to or as directed by the persons in whose names such Warrant
Certificates are so registered. Definitive Bearer Warrant Certificates issued
in exchange for a Global Bearer Warrant Certificate pursuant to this Section
shall be issued in such authorized denominations as the Depositary for such
series, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent or an agent of the Company or the
Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant
Certificates to or as directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series
of Universal Warrants to the contrary, none of the Company, the Warrant Agent
or any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel)
shall be required to exchange any Bearer Warrant for a Registered Warrant if
such exchange would result in adverse Federal income tax consequences to the
Company under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Universal Warrants of such series are listed) where the
Bearer Warrants, if any, of each series may be presented for exercise and
payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an
address in, the United States unless pursuant to applicable United States laws
and regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in
United States dollars with respect to Bearer Warrants of any series which are
payable in United States dollars may be made at an agency of the Company
maintained in the Borough of Manhattan, The City of New York if such payment
in United States dollars at each agency maintained by the Company outside the
United States for payment on such Bearer Warrants is illegal or effectively
precluded by exchange controls or other similar restrictions.
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that
series may be presented for exchange as provided in this Agreement and where
the Registered Universal Warrants of that series may be presented for
registration of transfer as in this Agreement provided, and the Company may
from time to time rescind any such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain the agencies provided for in this Section. The Company will give to
the Warrant Agent prompt written notice of any such designation or rescission
thereof.
Section 1.6. Mutilated or Missing Warrant Certificates. (a)
If any Warrant Certificate evidencing Universal Warrants of any series is
mutilated, lost, stolen or destroyed, the Company may in its discretion
execute, and the Warrant Agent may countersign and deliver, in exchange and
substitution for the mutilated Warrant Certificate, or in replacement for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate
representing an equivalent number of unexercised Universal Warrants of the
same series and of like tenor, bearing an identification number, if
applicable, not contemporaneously outstanding, but only (in case of loss,
theft or destruction) upon receipt of evidence satisfactory to the Company and
the Warrant Agent of such loss, theft or destruction of such Warrant
Certificate and security or indemnity, if requested, also satisfactory to
them. Applicants for such substitute Warrant Certificates shall also comply
with such other reasonable regulations and pay such other reasonable charges
as the Company or the Warrant Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated,
lost, stolen or destroyed Warrant Certificate have been or are about to be
exercised, or deemed to be exercised, the Company in its absolute discretion
may, instead of issuing a new Warrant Certificate, and subject to the
conditions set forth in clause 1.6(a) above, direct the Warrant Agent to treat
the same as if it had received the Warrant Certificate together with an
irrevocable exercise notice in proper form in respect thereof, as established
with respect to the Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant
Certificate issued pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall be original, additional contractual
obligations of the Company, and shall be entitled to the same benefits under
this Agreement as the Universal Warrants evidenced by the Warrant Certificate
that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance
with this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any other rights and remedies with respect to
the replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
Section 1.7. Registered Holders. (a) Prior to due presentment
for registration of transfer, the Company, the Warrant Agent, and any agent of
the Company or the Warrant Agent may deem and treat the person in whose name
a Warrant Certificate shall be registered in the Warrant Register (a
"Registered Holder") as the absolute owner of the Registered Warrants
evidenced thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate) for any purpose whatsoever, and as the person
entitled to exercise the rights represented by the Registered Warrants
evidenced thereby, and neither the Company nor the Warrant Agent, nor any
agent of the Company or the Warrant Agent, shall be affected by any notice to
the contrary. All payments on account of any Registered Warrant to the
Registered Holder, or upon his order, shall be valid, and to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability of the
Company for moneys paid upon such Registered Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere
herein.
(b) The Company, the Warrant Agent and any agent of the Company
or the Warrant Agent may treat the holder of any Bearer Warrant as the
absolute owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such
Bearer Warrant made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon such Bearer Warrant. This
Section shall be without prejudice to the rights of Warrantholders as described
elsewhere herein.
Section 1.8. Cancellation. All Universal Warrant Certificates
surrendered to the Warrant Agent for redemption or registration of transfer or
exchange shall be promptly cancelled by the Warrant Agent. The Company may at
any time deliver to the Warrant Agent for cancellation any Universal Warrant
Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Universal
Warrant Certificates so delivered shall, upon receipt by the Warrant Agent
of an Issuer Order, be promptly cancelled by the Warrant Agent. No
Universal Warrant Certificates shall be countersigned in lieu of or in
exchange for any Universal Warrant Certificates cancelled as provided in
this Section, except as permitted by this Agreement. All cancelled
Universal Warrant Certificates held by the Warrant Agent shall be disposed
of in accordance with its customary procedures and a certificate of their
disposition shall be delivered by the Warrant Agent to the Company, unless
by Issuer Order the Company shall direct that cancelled Universal Warrant
Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire
any Universal Warrant Certificate, such acquisition shall not operate as a
cancellation of such Universal Warrant Certificate unless and until such
Universal Warrant Certificate is delivered to the Warrant Agent for the
purpose of cancellation.
Section 1.9. Additional Warrant Agents. Whenever the Company
shall appoint a warrant agent other than the Warrant Agent with respect to the
Universal Warrants of any series, it will cause such warrant agent to execute
and deliver to the Warrant Agent an instrument in which such agent shall agree
with the Warrant Agent, subject to the provisions of this Section,
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series
in trust for the benefit of the Warrantholders of such series if any, or of
the Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by
the Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
The Company will, on or prior to each date of any payment of
Universal Warrants of any such series, deposit with the Warrant Agent or any
such additional warrant agent a sum sufficient to make such payment, and the
Company will promptly notify the Warrant Agent of any failure to take such
action with respect to any such additional warrant agent.
Section 1.10. Appointment of Calculation Agents. Pursuant to
Section 1.3 hereof, the Company may, in connection with any series of
Universal Warrants appoint Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Xxxxxxx &
Co. International Limited or any other person or entity as Calculation Agent
to make any calculations as may be required pursuant to the terms of any such
series of Universal Warrants. Any such Calculation Agent shall act as an
independent expert and, unless otherwise provided by this Agreement, its
calculations and determinations under this Agreement shall, absent manifest
error, be final and binding on the Company, the Warrant Agent and the
Warrantholders. Any such calculations will be made available to a
Warrantholder for inspection at the Warrant Agent's Office.
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.1. Duration and Exercise of Universal Warrants.
All terms with respect to duration and exercise of Universal Warrants will
be established pursuant to Section 1.3 for each series of Universal
Warrants.
Section 2.2. Return of Money Held Unclaimed for Two Years.
Except as otherwise provided herein, any money or other assets deposited
with or paid to the Warrant Agent for the payment of any Universal Warrants
and not paid but remaining unclaimed for two years after the date upon
which such money or other assets shall have become due and payable shall be
repaid by the Warrant Agent to the Company, at the Company's request
pursuant to an Officer's Certificate, and the holders of such Universal
Warrants shall thereafter look only to the Company for any payment which
such holders may be entitled to collect and all liability of the Warrant
Agent with respect to such money shall thereupon cease; provided that the
Warrant Agent, before making any such repayment, may (but shall not be
obligated to) at the expense of the Company notify (i) in the case of
Registered Warrants evidenced by Definitive Warrant Certificates, the
Registered Holders, (ii) in the case of Warrants evidenced by one or more
Global Warrant Certificates, the participants of the Depositary, and (iii)
in the case of Bearer Warrants evidenced by Definitive Warrant
Certificates, the holders thereof, in each case as provided in Section 6.4,
that said money has not been so applied and remains unclaimed and that
after a date named in the notification any unclaimed balance of said money
then remaining will be returned to the Company.
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.1. Warrantholder May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Warrantholder
may, without the consent of the Warrant Agent, the Depositary, any
participant of the Depositary, any other Warrantholder, the holder of any
Warrant Property or, if applicable, the common depositary for Xxxxxx
Guaranty Trust Company of New York, Brussels Office, or its successor, as
operator of the Euroclear System and Cedel Bank, societe anonyme, or its
successor, in and for its own behalf, enforce, and may institute and
maintain, any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, its right to exercise its Universal
Warrants as provided in this Agreement and established with respect to such
Universal Warrants pursuant to Section 1.3.
Section 3.2. No Rights as Holder of Warrant Property Conferred
by Universal Warrants or Warrant Certificates. No Warrant Certificate or
Universal Warrant evidenced thereby shall entitle the holder or any beneficial
owner thereof to any of the rights of a holder or beneficial owner of Warrant
Property, including, without limitation, the right to receive the payment of
principal of (premium, if any) or interest, if any, on Warrant Property or to
vote or to enforce any rights under any documents governing Warrant Property.
Section 3.3. Merger, Consolidation, Conveyance or Transfer.
(a) If at any time there shall be a merger or consolidation of the Company
or a conveyance or transfer of its property and assets substantially as an
entirety, then in any such event the successor, if other than the Company,
shall by an instrument of assumption delivered to the Warrant Agent succeed
to and be substituted for the Company, with the same effect as if it had
been named herein and in the Warrant Certificates as the Company. The
Company shall thereupon, except in the case of a transfer by way of lease,
be relieved of any further obligation hereunder and under the Universal
Warrants and the Warrant Certificates, and the Company, as the predecessor
corporation, except in the case of a transfer by way of lease, may
thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor and assuming corporation may thereupon cause to be signed,
and may issue either in its own name or in the name of the Company, Warrant
Certificates evidencing any or all of the Universal Warrants issuable
hereunder that theretofore shall not have been signed by the Company. All
the Universal Warrants so issued shall in all respects have the same legal
rank and benefit under this Agreement as the Universal Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as
though all of such Universal Warrants had been issued at the date of the
execution hereof. In any case of any such merger, consolidation,
conveyance or transfer, such changes in phraseology and form (but not in
substance) may be made in the Warrant Certificates representing the
Universal Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as
conclusive evidence that any such merger, consolidation, conveyance, transfer
or assumption complies with the provisions of this Section.
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.1. Universal Warrants Acquired by the Company. (a)
In the event the Company shall purchase or otherwise acquire Universal
Warrants, such Universal Warrants may, at the option of the Company, be (i)
in the case of Bearer Warrants or Registered Warrants evidenced by
Definitive Warrant Certificates, delivered to the Warrant Agent, and if so
delivered, the Warrant Agent shall promptly cancel such Universal Warrants
on the records of the Warrant Agent or (ii) in the case of Warrants
evidenced by one or more Global Warrant Certificates, surrendered free
through a participant of the Depositary to the Depositary for credit to the
account of the Warrant Agent maintained at the Depositary, and if so
credited, the Warrant Agent shall promptly note the cancellation of such
Universal Warrants by notation on the records of the Warrant Agent and the
Warrant Agent shall cause its records to be marked to reflect the reduction
in the number of Universal Warrants evidenced by the Global Warrant
Certificate or Certificates by the number of Universal Warrants so canceled
promptly after such account is credited. Universal Warrants acquired by
the Company may also, at the option of the Company, be resold by the
Company directly or to or through any of its affiliates in lieu of being
surrendered to the Warrant Agent or credited to its account. No Warrant
Certificate shall be countersigned in lieu of or in exchange for any
Universal Warrant that is canceled as provided herein, except as otherwise
expressly permitted by this Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent
under this Agreement shall be disposed of by the Warrant Agent in accordance
with its customary procedures unless otherwise directed by the Company, and
the Warrant Agent shall deliver a certificate of disposition to the Company
evidencing the same.
Section 4.2. Payment of Taxes. The Company will pay all
stamp, withholding and other duties, if any, attributable to the initial
issuance of each series or tranche of Universal Warrants; provided,
however, that, anything in this Agreement to the contrary notwithstanding,
the Company shall not be required to pay any tax or other governmental
charge that may be payable in respect of any transfer involving any
beneficial or record interest in, or ownership interest of, any Universal
Warrants or Warrant Certificates.
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent. The Company hereby appoints
The Chase Manhattan Bank as Warrant Agent of the Company in respect of the
Universal Warrants upon the terms and subject to the conditions set forth
herein; and The Chase Manhattan Bank hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred
upon it in this Agreement and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon
it with its consent. All of the terms and provisions with respect to such
powers and authority contained in any Warrant Certificate are subject to
and governed by the terms and provisions hereof.
Section 5.2. Condition of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Universal Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including attorneys' fees and expenses) incurred by
the Warrant Agent without negligence or bad faith on its part in connection
with the services rendered by it hereunder. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent
hereunder, as well as the reasonable costs and expenses of defending
against any claim of liability in the premises. The obligations of the
Company under this Section shall survive the expiration of all Universal
Warrants issued under this Agreement.
(b) In acting under this Agreement, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Warrantholders.
(c) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit, opinion,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) The Warrant Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Universal Warrants or
other obligations of the Company, with the same rights that it or they would
have if it were not the Warrant Agent hereunder and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on behalf of, or as depositary,
trustee or agent for, any committee or body of owners or holders of Universal
Warrants or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement nor shall it be obligated to segregate such
monies from other monies held by it, except as required by law. The Warrant
Agent shall not be responsible for advancing funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be taken as
the statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
likely to involve it in any expense or liability, the payment of which is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the application by the
Company of any proceeds of the issuance of any Warrants. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company in
the performance of its covenants or agreements contained in this Agreement
or in any Warrant Certificate or in the case of the receipt of any written
demand from a holder of a Universal Warrant with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2, to make any demand upon
the Company.
Section 5.3. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Universal Warrants, that there shall at all times be a Warrant Agent
hereunder with respect to each series of Universal Warrants until all the
Universal Warrants of such series are no longer outstanding or until monies
for the payment of all outstanding Universal Warrants of such series, if
any, shall have been paid to the Warrant Agent and shall have been returned
to the Company as provided in Section 2.2, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its
desired resignation shall become effective, subject to the appointment of a
successor Warrant Agent with respect to such series and acceptance of such
appointment by such successor Warrant Agent as hereinafter provided. The
Warrant Agent hereunder may be removed with respect to any series of
Universal Warrants at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal
and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent with respect to such series (which
shall be a banking institution organized under the laws of the United
States of America or one of the states thereof, have a combined capital and
surplus of at least $50,000,000 (as set forth in its most recent reports of
condition published pursuant to law or to the requirements of any United
States federal or state regulatory or supervisory authority) and having an
office in the Borough of Manhattan, The City of New York) and the
acceptance of such appointment by such successor Warrant Agent. In the
event a successor Warrant Agent has not been appointed and accepted its
duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent with respect to such series. The
obligation of the Company under Section 5.2(a)shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent with respect to any series of Universal Warrants.
(c) In case at any time the Warrant Agent with respect to any
series of Universal Warrants shall give notice of its intent to resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or make an assignment for the benefit of its creditors,
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
of all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
promptly appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder with respect to
such series.
(d) Any successor Warrant Agent appointed hereunder with
respect to any series of Universal Warrants shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without
any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
with respect to such series hereunder, and such predecessor, upon payment
of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant
Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor (including, without
limitation, the Warrant Register), as Warrant Agent with respect to such
series hereunder.
(e) If a successor Warrant Agent is appointed with respect to
the Universal Warrants of one or more (but not all) series, the Company,
the predecessor Warrant Agent and each successor Warrant Agent with respect
to the Universal Warrants of any applicable series shall execute and
deliver an agreement supplemental hereto that shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers and duties of the predecessor Warrant Agent with respect to the
Universal Warrants of any series as to which the predecessor Warrant Agent
is not retiring shall continue to be vested in the predecessor Warrant
Agent, and shall add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of
the Universal Warrants hereunder by more than one Warrant Agent, it being
understood that nothing herein or in such supplemental agreement shall
constitute such Warrant Agents Co-Warrant Agents of the same Universal
Warrants and that each such Warrant Agent shall be a Warrant Agent with
respect to separate series of Universal Warrants.
(f) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the corporate agency assets and business of the Warrant
Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
Miscellaneous
Section 6.1. Amendment. (a) This Agreement and the terms of
the Universal Warrants of any series may be amended (by means of an
agreement supplemental hereto or otherwise) by the Company and the Warrant
Agent, without the consent of the Warrantholders of any series of Universal
Warrants, (i) for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision
contained herein or therein, (ii) to establish the form or terms of Warrant
Certificates or Universal Warrants of any series as permitted by Sections
1.2 and 1.3, (iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Warrant Agent with respect to the
Universal Warrants of any series and to add to or change any of the
provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more
than one Warrant Agent pursuant to Section 5.3, or (iv) in any other manner
which the Company may deem necessary or desirable and which will not
materially and adversely affect the interests of the Warrantholders of such
series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with
the consent of Warrantholders holding not less than a majority in number of
the then outstanding Universal Warrants of all series affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that changes the exercise price of the Universal
Warrants of any series, shortens the period of time during which the
Universal Warrants of such series may be exercised, or otherwise materially
and adversely affects the exercise rights of the affected Warrantholders or
reduces the percentage of the number of outstanding Universal Warrants of
such series, the consent of whose holders is required for modification or
amendment of this Agreement, may be made without the consent of each
Warrantholder affected thereby. In the case of Universal Warrants
evidenced by one or more Global Warrant Certificates, the Company and the
Warrant Agent shall be entitled to rely upon certification in form
satisfactory to each of them that any requisite consent has been obtained
from holders of beneficial ownership interests in the relevant Global
Warrant Certificate. Such certification may be provided by participants of
the Depositary acting on behalf of such beneficial owners of Universal
Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Universal Warrant holdings of
such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or
more particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any
other series.
(d) Upon the request of the Company, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
authorizing the execution of any such amendment, and upon the filing with the
Warrant Agent of evidence of the consent of Warrantholders as aforesaid, the
Warrant Agent shall join with the Company in the execution of such amendment
unless such amendment affects the Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise, in which case the Warrant Agent
may in its discretion, but shall not be obligated to, enter into such
amendment. In executing, or accepting the additional duties created by,
any amendment permitted by this Article, the Warrant Agent shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The fact and date of the
execution of any consent of Warrantholders, or the authority of the Person
executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the
Warrantholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof.
Section 6.2. Notices and Demands to the Company and the
Warrant Agent. If the Warrant Agent shall receive any notice or demand
addressed to the Company by any Warrantholder pursuant to the provisions of
this Agreement or the terms of the Universal Warrants of any series, the
Warrant Agent shall promptly forward such notice or demand to the Company.
Section 6.3. Addresses for Notices. Any communications to the
Warrant Agent with respect to this Agreement shall be in writing addressed to
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate and
Municipal Agency Department (the "Warrant Agent's Office") and any
communications to the Company with respect to this Agreement shall be
addressed to Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Treasurer (or in each case to such
other address as shall be given in writing to the other party hereto).
Section 6.4. Notices to Warrantholders. The Company may
cause to have notice given to the Warrantholders of any series by providing
the Warrant Agent with a form of notice to be distributed by (i) in the
case of Registered Warrants evidenced by Definitive Warrant Certificates,
the Warrant Agent to Registered Holders by first class mail, (ii) in the
case of Warrants evidenced by one or more Global Warrant Certificates, the
Depositary to be distributed by the Depositary to its participants in
accordance with the custom and practices of the Depositary or (iii) in the
case of Bearer Warrants evidenced by Definitive Warrant Certificates,
publication at least once in an Authorized Newspaper (as defined below) in
The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and, in the case of Western Europe, will, if practicable, be
the Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, and Western Europe, as applicable. If it shall be impractical in the
opinion of the Warrant Agent to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given with the approval of the Warrant Agent shall
constitute a sufficient publication of such notice.
Section 6.5. Obtaining of Approvals. The Company will from
time to time take all action that may be necessary to obtain and keep
effective any and all filings or notices under applicable law, which may be
or become required in connection with the issuance, sale, trading, transfer
or delivery of the Warrant Certificates or the exercise of the Universal
Warrants.
Section 6.6. Persons Having Rights under this Agreement.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and the Warrantholders any right, remedy or claim under or
by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions, stipulations,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent, their respective
successors and the Warrantholders.
Section 6.7. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the Warrant Agent's
Office for inspection by the Warrantholders, participants of the Depositary
certified as such by the Depositary or any person certified by any such
participant to be an indirect participant of the Depositary or any person
certified by any such participant to be a beneficial owner of a Universal
Warrant, in each case, on behalf of whom such participant holds Universal
Warrants.
Section 6.8. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. (a) Each certificate or opinion provided
for in this Agreement and delivered to the Warrant Agent with respect to
compliance with a condition or covenant provided for in this Agreement shall
include (i) a statement that the person making such certificate or opinion has
read such covenant or condition, (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (iii) a statement
that, in the opinion of such person, such person has made such examination or
investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with
and (iv) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Company, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
such officer's certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon
which such officer's or counsel's, as the case may be, certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any independent firm of public accountants filed
with and directed to the Warrant Agent shall contain a statement that such
firm is independent.
Section 6.9. Payments Due on Saturdays, Sundays and
Holidays. If the date fixed for any payment with respect to the Universal
Warrants of any series appertaining thereto shall not be a Business Day (as
defined below), then such payment need not be made on such date, but may be
made on the next succeeding Business Day with same force and effect as if
made on the date fixed, and no interest shall accrue for the period after
such date.
"Business Day" means, with respect to any Universal Warrant, a
Business Day as defined in any debt security included in any unit comprising
such Universal Warrant or as otherwise established pursuant to Section 1.3
hereof or if the term Business Day is not so specified, Business Day means any
day that is not a Saturday or Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to be closed.
Section 6.10. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Universal Warrants of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Warrant Agent could purchase in The City of
New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day (as defined below), in which event, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Warrant Agent could purchase in
The City of New York the Required Currency with the Judgment Currency on the
last New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Agreement and the terms
of the Universal Warrants of such series to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause 6.10(a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Agreement. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
Section 6.11. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.13. Applicable Law. This Agreement and each
Universal Warrant shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the
laws of said State, excluding choice of law provisions.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the day and year first above written.
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------
Name:
Title:
EXHIBIT I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____](*)
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or
registered assigns, is the Registered Holder of the number of [Designation of
Universal Warrants] (the "Warrants") [specified above](**)[specified on
Schedule A hereto](***). Upon receipt by the Warrant Agent of this Warrant
Certificate, the exercise notice on the reverse hereof (or an exercise notice
in substantially identical form delivered herewith)(the "Exercise Notice"),
duly completed and executed, and the Call Price per Warrant set forth above,
in the form set forth above, for each Warrant to be exercised (the "Exercise
Property") at the Warrant Agent's Window, Attention: Tender Department, in the
Borough of Manhattan, The City of New York, each Warrant evidenced hereby
entitles the Registered Holder hereof to receive, subject to the terms and
conditions set forth herein and in the Warrant Agreement (as defined
below), from Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. (the "Company")
the amount and form of property (the "Warrant Property") specified above.
Warrants will not entitle the Warrantholder to any of the rights of the
holders of any of the Warrant Property.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth in this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
------------
(*) Applies to global warrant certificates.
(**) Applies to definitive warrant certificates
(***) Applies to global warrant certificates
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated: XXXXXX XXXXXXX, XXXX XXXXXX,
--------------------- DISCOVER & CO.
By:
------------------------------
Name:
Title:
Attest:
By:
------------------------------
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
------------------------------
Authorized Office
[FORM OF REVERSE OF REGISTERED CALL WARRANT
CERTIFICATE]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Universal Warrants issued by the Company pursuant
to a Universal Warrant Agreement, dated as of June 2, 1997 (the "Warrant
Agreement"), between the Company and The Chase Manhattan Bank (the "Warrant
Agent") and are subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions each Warrantholder consents by
acceptance of this Warrant Certificate or a beneficial interest therein and
which Warrant Agreement is hereby incorporated by reference in and made a part
of this Warrant Certificate. Without limiting the foregoing, all capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Warrant Agreement. A copy of the Warrant Agreement is on file at the
Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the
Company and rank pari passu with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement,
each Warrant may be exercised during the dates of exercise set forth on the
face hereof by delivering or causing to be delivered this Warrant
Certificate, the Exercise Notice, duly completed and executed, and the
Exercise Property for each such Warrant to the Warrant Agent's Window, in
the Borough of Manhattan, The City of New York, which is, on the date
hereof (unless otherwise specified herein), The Chase Manhattan Bank
Corporate Trust Securities Window, 00 Xxxxx Xxxxxx, Room 000, Xxxxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Tender Department, or at
such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon
exercise, the Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject
to amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably
exercises __________ Warrants (the "Exercised Warrants") and delivers to you
herewith a Warrant Certificate or Certificates, registered in the Registered
Holder's name, representing a number of Warrants at least equal to the number
of Exercised Warrants, and the Exercise Property with respect thereto.
The Registered Holder hereby directs the Warrant Agent (a) to
deliver the Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the
number of Warrants represented by the enclosed Warrant Certificate, to deliver
a Warrant Certificate representing the unexercised Warrants to:
Dated:
------------------------ -----------------------
(Registered Holder)
By:
-----------------------
Authorized Signature
Address:
Telephone:
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this
Global Universal Warrant is __________. In accordance with the Universal
Warrant Agreement and the Unit Agreement dated as of June 2, 1997 among the
Issuer, The Chase Manhattan Bank, as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and
the Holders from time to time of the Units described therein, the following
(A) exchanges of [the number of Universal Warrants indicated below for a like
number of Universal Warrants to be represented by a Global Universal Warrant
that has been separated from a Unit (a "Separated Universal Warrant")](1) [the
number of Universal Warrants that had been represented by a Global Universal
Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a
like number of Universal Warrants represented by this Global Universal
Warrant](2) or (B) reductions as a result of the exercise of the number of
Universal Warrants indicated below have been made:
[Number of Attached
Unit Universal [Increased
[Number Warrants Exchanged Number Reduced Notation
Exchanged for [Reduced Number for Universal Outstanding Number of Number Made by or
Date of Separated Outstanding Warrants represented Following Universal Outstanding on Behalf
Exchange Universal Following Such by this Separated Such Warrants Following of Warrant
or Exercise Warrants](*) Exchange](*) Universal Warrant](**) Exchange](**) Exercised Such Exercise Agent
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-------------
(1) Applies only if this Global Universal Warrant is part of a Unit.
(2) Applies only if this Global Universal Warrant has been separated from
a Unit.
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for
Universal Warrants in definitive registered form, this Warrant Certificate
and the Universal Warrants evidenced hereby may not be transferred except
as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO ____](1)
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF DETERMINING SAME):
[WARRANT PROPERTY:](2)
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:](**)
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:](**)
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE DELIVERED FOR SALE UPON
EXERCISE OF WARRANTS:](**)
DATES OF EXERCISE:
OTHER TERMS:
-----------
(1) Applies to global warrant certificates.
(2) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
This Warrant Certificate certifies that __________, or
registered assigns, is the Registered Holder of the number of [Designation
of Universal Warrants] (the "Warrants") [specified above](1) [specified on
Schedule A hereto](2). Upon receipt by the Warrant Agent of this Warrant
Certificate, the exercise notice on the reverse hereof (or an exercise
notice in substantially identical form delivered herewith)(the "Exercise
Notice"), duly completed and executed, and the Amount of Warrant Property
saleable per Warrant set forth above, adjusted, if applicable, as set forth
above, for each Warrant to be exercised, delivered as set forth above at
the Warrant Agent's Window, Attention: Tender Department, in the Borough
of Manhattan, The City of New York (which is, on the date hereof, Corporate
Trust Securities Window, 00 Xxxxx Xxxxxx, Room 000, Xxxxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Tender Department), each Warrant
evidenced hereby entitles the Registered Holder hereof to receive, subject
to the terms and conditions set forth herein and in the Warrant Agreement
(as defined below), from Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. (the
"Company") the [Cash Settlement Value][Put Price](3) per Warrant specified
above.
-----------
(1) Applies to global warrant certificates.
(2) Applies to global warrant certificates.
(3) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
Unless otherwise indicated above, a Warrant will not require or
entitle a Warrantholder to sell or deliver to the Company, nor will the
Company be under any obligation to, nor will it, purchase or take delivery
from any Warrantholder of, any Warrant Property, and upon exercise of a
Warrant, the Company will make only a cash payment in the amount of the Cash
Settlement Value or Put Price per Warrant. Warrantholders will not receive
any interest on any Cash Settlement Value.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as though fully set
forth in this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated: XXXXXX XXXXXXX, XXXX XXXXXX,
--------------------- DISCOVER & CO.
By:
------------------------------
Name:
Title:
--------------
(3) Only if the terms of the Warrants contemplate that the holder may
deliver Warrant Property to exercise the Warrants.
Attest:
By:
------------------------------------
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
------------------------------------
Authorized Officer
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Universal Warrants issued by the Company pursuant
to a Universal Warrant Agreement, dated as of June 2, 1997 (the "Universal
Warrant Agreement"), between the Company and The Chase Manhattan Bank (the
"Warrant Agent") and are subject to the terms and provisions contained in the
Universal Warrant Agreement, to all of which terms and provisions each
Warrantholder consents by acceptance of this Warrant Certificate or a
beneficial interest therein and which Universal Warrant Agreement is hereby
incorporated by reference in and made a part of this Warrant Certificate.
Without limiting the foregoing, all capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Universal Warrant
Agreement. A copy of the Universal Warrant Agreement is on file at the
Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Universal Warrant Agreement.
The Warrants are unsecured contractual obligations of the
Company and rank pari passu with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
The Warrant Agreement and the terms of the Warrants are subject
to amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably
exercises __________ Warrants (the "Exercised Warrants") and delivers to you
herewith a Warrant Certificate or Certificates, registered in the Registered
Holder's name, representing a number of Warrants at least equal to the number
of Exercised Warrants[, and the Warrant Property with respect thereto].(1)
The Registered Holder hereby directs the Warrant Agent (a) to
deliver the [Cash Settlement Value][Put Price](*) per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the
number of Warrants represented by the enclosed Warrant Certificate, to deliver
a Warrant Certificate representing the unexercised Warrants to:
Dated:
------------------------- -----------------------
(Registered Holder)
By:
-----------------------
Authorized Signature
Address:
Telephone:
------------
(1) Only if terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this
Global Universal Warrant is __________. In accordance with the Universal
Warrant Agreement and the Unit Agreement dated as of June 2, 1997 among the
Issuer, The Chase Manhattan Bank, as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and
the Holders from time to time of the Units described therein, the following
(A) exchanges of [the number of Universal Warrants indicated below for a like
number of Universal Warrants to be represented by a Global Universal Warrant
that has been separated from a Unit (a "Separated Universal Warrant")](1) [the
number of Universal Warrants that had been represented by a Global Universal
Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a
like number of Universal Warrants represented by this Global Universal
Warrant](2) or (B) reductions as a result of the exercise of the number of
Universal Warrants indicated below have been made:
[Number of Attached
Unit Universal Reduced Notation
[Number [Reduced Warrants Exchanged [Increased Number Made by
Exchanged for Number for Universal Number Number of Outstanding or on
Date of Separated Outstanding Warrants represented Outstanding Universal Following Behalf of
Exchange or Universal Following Such by this Separated Following Such Warrants Such Warrant
Exercise Warrants](*) Exchange](*) Universal Warrant](**) Exchange](**) Exercised Exercise Agent
---------- ----------- -------------- --------------------- ------------- --------- ------------- ----------
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___________
(1) Applies only if this Global Universal Warrant is part of a Unit.
(2) Applies only if this Global Universal Warrant has been separated from
a Unit.
