EXHIBIT 4.12
THE XXXXXXXX COMPANIES, INC.
and
_____________________,
as Warrant Agent
----------------------------
WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase _______
----------------------------
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants.............................................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates...................................2
SECTION 1.03. Issuance of Warrant Certificates.................................................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price....................................................................4
SECTION 2.02. Duration of Warrants.............................................................5
SECTION 2.03. Exercise of Warrants.............................................................5
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrant or Warrant Certificates........................................................7
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.......................7
SECTION 3.03. Enforcement of Rights............................................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer....................................8
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer............................................................8
SECTION 4.02. Treatment of Holders of Warrant Certificates.....................................9
SECTION 4.03. Cancellation of Warrant Certificates............................................10
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent...................................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations.......................................11
SECTION 5.03. Resignation and Appointment of Successor........................................12
PAGE
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.......................................................................14
SECTION 6.02. Notices and Demands to the Company and Warrant Agent............................14
SECTION 6.03. Addresses.......................................................................15
SECTION 6.04. Applicable Law..................................................................15
SECTION 6.05. Delivery of Prospectus..........................................................15
SECTION 6.06. Obtaining of Governmental Approval..............................................15
SECTION 6.07. Persons Having Rights under Warrant Agreement...................................15
SECTION 6.08. Headings........................................................................15
SECTION 6.09. Counterparts....................................................................16
SECTION 6.10. Inspection of Agreement.........................................................16
SECTION 6.11. Notices to Holders of Warrants..................................................16
TESTIMONIUM......................................................................................
SIGNATURES.......................................................................................
EXHIBIT A - Form of Warrant Certificate
ii
WARRANT AGREEMENT(1)
THIS AGREEMENT dated as of between THE XXXXXXXX
COMPANIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), and , a [bank] [trust
company] duly incorporated and existing under the laws of , as
Warrant Agent (the "Warrant Agent"),
Bracketed language here and throughout this Agreement should be
inserted as follows:
1. If Warrants are immediately detachable from the Offered Securities;
and
2. If Warrants are detachable from the Offered Securities only after
the Detachable Date.
WITNESSETH:
[WHEREAS, the Company has entered into an Indenture dated as of
_____________ (the "Senior Indenture") between the Company and ______________,
as Trustee (the "Senior Indenture Trustee"), and an Indenture dated as of
____________ (the "Subordinated Indenture") between the Company and
_____________, as Trustee (the "Subordinated Indenture Trustee") (together, the
"Trustees" or "Trustee" and "Indentures" or "Indenture"), providing for the
issuance from time to time of its unsecured debt securities to be issued in one
or more series as provided in the Indenture; and]
WHEREAS, the Company proposes to sell [title of such securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such securities purchasable through
exercise of Warrants] (the "Warrant Securities"), the Warrants to be evidenced
by Warrant certificates issued pursuant to this Agreement (the "Warrant
Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the
--------
(1) Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities. Monetary amounts may
be in U.S. dollars in a foreign currency.
terms and conditions on which they may be issued, transferred, exchanged,
exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants. Issuance of Warrants. The Warrants
shall be evidenced by one or more Warrant Certificates. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase [_____ shares of the Warrant Securities] [ aggregate
principal amount of Warrant Securities ] and shall be initially issued in
connection with the issuance of the Offered Securities [1: and shall be
separately transferable immediately thereafter] [2: but shall not be separately
transferable until on and after , (the "Detachable Date")]. The Warrants shall
be initially issued [in units] with the Offered Securities, and each Warrant
[included in such a unit] shall evidence the right, subject to the provisions
contained herein and in the Warrant Certificates, to purchase [_____ shares of
the Warrant Securities] [ aggregate principal amount of Warrant Securities]
[included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form, substantially in the form set forth in Exhibit A hereto, shall
be dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as 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 stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of the
Company by its chairman or vice chairman of the Board of Directors, the
president, any managing director or the treasurer of the Company, in each case
under its corporate seal, which may but need not be, attested by its Secretary
or one of its Assistant Secretaries. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The corporate seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
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No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate,
shall mean any person in whose name at the time such Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [2: or, prior to the Detachable Date, any person in whose name at the
time the Offered Security to which such Warrant Certificate is attached is
registered upon the register of the Offered Securities. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase [_____ shares of the Warrant Securities] [an
aggregate principal amount not exceeding aggregate principal amount of Warrant
Securities] (except as provided in Sections 2.03, 3.02 and 4.01) may be executed
by the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing ___________ Warrants representing
the right to purchase up to [_____shares of the Warrant Securities] [
aggregate principal amount of Warrant Securities] and shall deliver
such Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in
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connection with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such 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 definitive 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 definitive
Warrant Certificates. Without unreasonable delay, the Company shall execute and
shall furnish definitive Warrant Certificates and thereupon such temporary
Warrant Certificates may be surrendered in exchange therefor without charge
pursuant to and subject to the provisions of Section 4.01, and the Warrant Agent
shall countersign and deliver in exchange for such temporary Warrant
Certificates definitive Warrant Certificates of authorized denominations
evidencing a like aggregate number of Warrants evidenced by such temporary
Warrant Certificates. Until so exchanged, such temporary Warrant Certificates
shall be entitled to the same benefits under this
Warrant Agreement as
definitive Warrant Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On , the exercise price of
each Warrant will be . During the period from , through and
including , , the exercise price of each Warrant will be [plus [accrued
amortization of the original issue discount] [accrued interest] from , .] On ,
the exercise price of each Warrant will be . During the period from , through
and including , , the exercise price of each Warrant will be [plus [accrued
amortization of the original issue discount] [accrued interest] from , .] [In
each case, the original issue discount will be amortized at a % annual rate,
computed on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months]. Such exercise price of Warrant Securities
is referred to in this Agreement as the "Warrant Price". [The original issue
discount for each principal amount of Warrant Securities is ].
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SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [ , ] and
at or before [time, location] on , (each day during such period
may hereinafter be referred to as an "Exercise Date")] [on [list of specific
dates] (each, an "Exercise Date")], or such later date as the Company may
designate by notice to the Warrant Agent and the Holders of Warrant Certificates
[in registered form and to the beneficial owners of the Global Warrant
Certificate] (the "Expiration Date"). Each Warrant not exercised at or before
[time, location] on the Expiration Date shall become void, and all rights of the
Holder [and any beneficial owners] of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificates
evidencing such Warrants and by paying in full [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] the Warrant Price for each Warrant
exercised [(plus accrued interest, if any, on the Warrant Securities to be
issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the Exercise
Date (unless the Exercise Date is after the Regular Record Date (as defined in
the Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable in respect of Warrant
Securities to be issued in registered form))] to the Warrant Agent at its
corporate trust office at [address] [or at ], provided that such exercise is
subject to receipt within five business days of such [payment] [wire transfer]
by the Warrant Agent of the Warrant Certificate evidencing each Warrant
exercised with the form of election to purchase Warrant Securities set forth on
the reverse side of the Warrant Certificate properly completed and duly
executed. [Cashless Exercise Option]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment for the exercise of Warrants in an account of the Company maintained
with it (or in such other account as may be designated by the Company) and shall
advise the Company, by telephone or by facsimile transmission or other form of
electronic communication available to both parties, at the end of each day on
which a payment for the exercise of Warrants is received of the amount so
deposited to its
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account. The Warrant Agent shall promptly confirm such advice to the Company in
writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed, then,
notwithstanding any other provision of this Agreement or the Warrant Certificate
evidencing such Warrants, but subject to the limitation that no Warrant may be
exercised after the Expiration Date, the Warrants shall be exercisable on the
next succeeding day which in such city is not a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company and the Trustee in writing of (i) the number of Warrants
exercised, (ii) the instructions of each Holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
be issued upon such exercise, (iii) delivery of any Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably
require.
As soon as practicable after the exercise of any Warrant, but subject
to receipt by the Warrant Agent of the Warrant Certificate evidencing such
Warrant as provided in this Section, the Company shall issue[, pursuant to the
Indenture, in authorized denominations to or upon the order of the Holder of the
Warrant Certificate evidencing each Warrant,] the Warrant Securities to which
such Holder is entitled, in fully registered form, registered in such name or
names as may be directed by such Holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver, a new Warrant Certificate evidencing the number of such Warrants
remaining unexercised.
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or deliver
any Warrant Security until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or other
charge is due.
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ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrant
or Warrant Certificates. No Warrant Certificate or 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 Securities, including, without
limitation, [the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants in
the Indenture] [the right to receive dividend payments on the Warrant Securities
or any voting rights].
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, mutilation,
theft or destruction of any Warrant Certificate and of such security or
indemnity as may be required by the Company and the Warrant Agent to hold each
of them and any agent of them harmless and, in the case of mutilation of a
Warrant Certificate, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
mutilated, stolen or destroyed Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants. Upon the issuance of
any new Warrant Certificate under this Section, the Company may require the
payment of a sum sufficient to cover any stamp or other 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) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, mutilated, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of lost, mutilated, stolen or
destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate, without the
consent of the Warrant Agent, the Trustee, the holder of any Offered Securities
or the Holder of any other Warrant Certificate, may, in its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding
7
against the Company suitable to enforce, or otherwise in respect of, its right
to exercise its Warrants in the manner provided in its Warrant Certificate and
in this Agreement.
SECTION 3.04. 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 [as
permitted under the Indenture], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect[, subject to the Indenture,] 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 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 or 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 Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name [,pursuant to the
Indenture,] in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such 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 Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
[Add Anti-Dilution provisions as necessary.]
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which such Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an
8
exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security, shall operate also to transfer the
related Warrant Certificates. On or after the Detachable Date, upon] surrender
at the corporate trust office of the Warrant Agent at [address] [or ],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other authorized denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided, however, that
such other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable regulations as
it may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates upon surrender of such Warrant
Certificates to the Warrant Agent at its corporate trust office at [address] [or
] for exchange or registration of transfer, properly endorsed [or accompanied by
appropriate instruments of registration of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of transfer.
(d) Whenever any Warrant Certificates, are so surrendered for exchange
or registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates, duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate, evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant
(e) All Warrant Certificates, issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such exchange
or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Each
Holder of a Warrant Certificate, by accepting the same, consents and agrees with
the Company, the Warrant Agent and every subsequent Holder of such Warrant
Certificate that until the transfer of such Warrant Certificate is registered on
the
9
books of such Warrant Agent [2: or, prior to the Detachable Date, until the
transfer of the Offered Security to which such Warrant Certificate is attached,
is registered in the register of the Offered Securities], the Company and the
Warrant Agent may treat the registered Holder of such Warrant Certificate as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. [(a)] Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
[(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date] [, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant Agent
of its election, to cancel the unexercised Warrants, the Warrant Certificates
and the rights evidenced thereby. Promptly after receipt of such notice by the
Warrant Agent, the Company shall, or, at the Company's request, the Warrant
Agent shall in the name of and at the expense of the Company, give notice of
such cancellation to the Holders of the Warrant Certificates, such notice to be
so given not less than 30 nor more than 60 days prior to the date fixed for the
redemption of [2: the Offered Securities [or] [and]] the Warrant Securities
pursuant to the Indenture or the terms thereof. The unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby shall be cancelled and
become void on the 15th day prior to such date fixed for redemption.]
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein and in the Warrant
Certificates set forth; and hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
the Warrant Certificates and herein and such further powers and authority to act
on behalf of the Company as the Company may hereafter grant to or confer upon
it.
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All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. 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 reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the reasonable
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it in its reasonable judgment, and the advice 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
advice of such counsel.
(d) Documents. 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 Warrant Certificate, notice, direction, consent, certificate,
affidavit, 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) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent
11
hereunder, and, to the extent permitted by applicable law, it or they may engage
or be interested in any financial or other transaction with the Company and may
act on, or as depositary, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder. [Nothing in this
Warrant Agreement shall
be deemed to prevent the Warrant Agent from acting as Trustee under the
Indenture.]
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. 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 to execute
this Agreement and the due execution and delivery hereof by the Warrant Agent)
or with respect to the validity or execution of any Warrant Certificates (except
its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
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 herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a Holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02, to make any demand upon the
Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the Holders from time to time of the Warrant
12
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice of its resignation to the Company, specifying the desired date on which
its resignation shall become effective; provided, however, that such date shall
be not less than 90 days after the date on which such notice is given unless the
Company agrees to accept shorter notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Warrant Agent (which
shall be a bank or trust company in good standing, authorized under the laws of
the jurisdiction of its organization to exercise corporate trust powers) by
written instrument in duplicate signed on behalf of the Company, one copy of
which shall be delivered to the resigning Warrant Agent and one copy to the
successor Warrant Agent. The Company may, at any time and for any reason, remove
the Warrant Agent and appoint a successor Warrant Agent (qualified as aforesaid)
by written instrument in duplicate signed on behalf of the Company and
specifying such removal and the date when it is intended to become effective,
one copy of which shall be delivered to the Warrant Agent being removed and one
copy to the successor Warrant Agent. Any resignation or removal of the Warrant
Agent and any appointment of a successor Warrant Agent shall become effective
upon acceptance of appointment by the successor Warrant Agent as provided in
this subsection (b). 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. Upon its
resignation or removal, the Warrant Agent shall be entitled to the payment by
the Company of the compensation and to the reimbursement of all reasonable
out-of-pocket expenses (including reasonable attorneys' fees) incurred by it
hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the
13
predecessor Warrant Agent shall, if not previously disqualified by operation of
law, cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor 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 as Warrant Agent hereunder.
(e) 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 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 6.01. Amendment. This Agreement and the terms of the Warrants
and the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in the
Warrant Certificates, or making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable, provided that such action shall not affect
adversely the interests of the Holders of the Warrant Certificates or the
beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
14
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to The Xxxxxxxx
Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of
New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer and delivery
of the Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrant Securities issued upon exercise of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
SECTION 6.07. Persons Having Rights under
Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. 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.
15
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given by first
class mail prepaid at such Holder's address as it appears on the books of the
Warrant Agent.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
THE XXXXXXXX COMPANIES, INC.
By
-------------------------
Name:
Title:
[WARRANT AGENT]
By
-------------------------
Name:
Title:
17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Prior to _______________, this
Warrant Certificate may be
transferred or exchanged if
and only if the [Title of
Offered Security] to which it
was initially attached is so
transferred or exchanged.
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, ____
THE XXXXXXXX COMPANIES, INC.
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Securities]
as described herein
----------
No. _______________ Warrants
This certifies that [_____________________] or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate principal amount of [Title of Warrant Securities]] (the
"Warrant Securities") of
A-1
The Xxxxxxxx Companies, Inc. (the "Company")[, issued or to be issued under the
Indenture (as hereinafter defined),] on the following basis.(2) [During the
period from ________, ____ through and including ___________, ____, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the [principal] amount of Warrant Securities stated
above in this Warrant Certificate at the exercise price of [___] [___% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Securities][plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Securities or, if no interest shall have been paid on the Warrant Securities,
from ___________, ____]; [in each case, the original issue discount ($_______
for each $1,000 principal amount of Warrant Securities) will be amortized at a
___% annual rate, computed on a[n] [semi-]annual basis[, using a 360-day year
constituting of twelve 30-day months]] (the "Exercise Price"). The Holder of
this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or
in part, by surrendering this Warrant Certificate, with the purchase form set
forth hereon duly completed, accompanied [by payment in full, in lawful money of
the United States of America, [in cash or by certified check or official bank
check in
New York Clearing House funds] [by bank wire transfer in immediately
available funds]], the Exercise Price for each Warrant exercised, to the Warrant
Agent (as hereinafter defined), at the corporate trust office of [name of
Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at
____________,] at the addresses specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of [ shares of ] Warrant Securities [in the
principal amount of ] or any integral multiple thereof. [Cashless Exercise
Option]
The term "Holder" as used herein shall mean, prior to _________, ____
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which such Warrant Certificate was initially attached, and after
such Detachable Date, the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the registered owner hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
--------
(2) Complete and modify the following provisions as appropriate to
reflect the terms of the Warrants and the Warrant Securities.
A-2
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _______________].
[The Warrant Securities to be issued and delivered upon the exercise of
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of ________________ (the "Indenture"),
between the Company and ________________, a [corporation] [national banking
association] organized under the laws of the State of __________, as trustee
(such trustee, and any successors to such trustee, the "Trustee") and will be
subject to the terms and provisions contained in the Warrant Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
Securities, are on file at the corporate trust office of the Trustee [and at
].]
Prior to ___________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. Additionally, on or
prior to the Detachable Date, each transfer of such Offered Security on the
register of the Offered Securities shall operate also to transfer this Warrant
Certificate. After the Detachable Date, this Warrant Certificate, and all rights
hereunder, may be transferred when surrendered at the corporate trust office of
the Warrant Agent [or _________] by the registered owner or his assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.
Except as provided in the immediately preceding paragraph, after
authentication by the Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the corporate trust
office of the Warrant Agent [or at _____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof
to any of the rights of a registered holder of the Warrant Securities,
including, without limitation, [the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Securities or to
enforce any of the covenants of the Indenture] [the right to receive dividend
payments on the Warrant Securities or any voting rights].
A-3
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated:
-------------- THE XXXXXXXX COMPANIES, INC.
By
------------------------
Attest:
------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
------------------------------------
As Warrant Agent
By
---------------------------------
Authorized Signature
A-4
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, _______________, Attn: ___________ [or
________________], which payment should specify the name of the Holder of this
Warrant Certificate and the number of Warrants exercised by such Holder. In
addition, the Holder of this Warrant Certificate should complete the information
required below and present in person or mail by registered mail this Warrant
Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________
Warrants, represented by this Warrant Certificate, to purchase [______ shares of
[Title of Warrant Securities]] [$_________ aggregate principal amount of the
[Title of Warrant Securities]] (the "Warrant Securities") of THE XXXXXXXX
COMPANIES, INC. and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check in
New York
Clearing House funds or by bank wire transfer in immediately available funds] to
the order of The Xxxxxxxx Companies, Inc., c/o Treasurer in the amount of
$___________ in accordance with the terms hereof. The undersigned requests that
said [principal] amount of Warrant Securities be in fully registered form, in
the authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said [principal] amount of Warrant Securities is less than all of
the Warrant Securities purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated:
Name
----------------------------
(Please Print)
------------------------------------
(Insert Social Security or Other
Identifying Number of Holder) Address
-------------------------
-------------------------
Signature
-----------------------
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
A-5
This Warrant may be exercised at the following addresses:
By hand at
-------------------
-------------------
-------------------
-------------------
By mail at
-------------------
-------------------
-------------------
-------------------
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-6
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and
transfers unto
Please insert social
security or other
identifying number
---------------------------------
-----------------------------------
(Please print name and address
including zip code)
--------------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
---------------------------------------
Signature
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
]
-------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Warrant Agent)
A-7
