Exhibit 4-dd
[Form of Debt Warrant Agreement for Warrants Sold Alone]
XXXXXX XXXXXXX XXXX XXXXXX & CO.
and
---------------------,
as Warrant Agent
-------------------------,
DEBT WARRANT AGREEMENT
Dated as of ___________
------------------------
Warrants to Purchase ________
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TABLE OF CONTENTS
PAGE
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
SECTION 1.04. Temporary Global Security .................................... 4
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price ................................................ 5
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
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants
or Warrant Certificates .................................... 9
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates ... 9
SECTION 3.03. Enforcement of Rights ........................................ 9
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer ................ 10
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer ........................................ 11
SECTION 4.02. Treatment of Holders of Warrant Certificates ................. 12
SECTION 4.03. Cancellation of Warrant Certificates ......................... 12
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1 The Table of Contents is not a part of the Agreement.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent ................................................ 13
SECTION 5.02. Conditions of Warrant Agent's Obligations .................... 13
SECTION 5.03. Resignation and Appointment of Successor ..................... 15
ARTICLE 5
MISCELLANEOUS
SECTION 6.01. Amendment .................................................... 17
SECTION 6.02. Notices and Demands to the Company and Warrant Agent ......... 17
SECTION 6.03. Addresses .................................................... 17
SECTION 6.04. Applicable Law ............................................... 18
SECTION 6.05. Delivery of Prospectus ....................................... 18
SECTION 6.06. Obtaining of Governmental Approval ........................... 18
SECTION 6.07. Persons Having Rights under Warrant Agreement ................ 18
SECTION 6.08. Headings ..................................................... 18
SECTION 6.09. Counterparts ................................................. 19
SECTION 6.10. Inspection of Agreement ...................................... 19
SECTION 6.11. Notices to Holders of Warrants ............................... 19
TESTIMONIUM ................................................................. 20
SIGNATURES .................................................................. 20
EXHIBIT A - Form of Warrant Certificate [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant
Agent by the Euroclear Operator or Cedelbank]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers
of Warrant Securities in Bearer Form]
ii
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of ____________ between XXXXXX XXXXXXX XXXX
XXXXXX & CO., 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"),
W I T N E S S E T H :
WHEREAS, the Company has entered into an Amended and Restated Senior
Indenture dated as of May 1, 1999 (the "Senior Indenture") between the Company
and The Chase Manhattan Bank, as Trustee (the "Senior Trustee"), and an Amended
and Restated Subordinated Indenture dated as of May 1, 1999 (the "Subordinated
Indenture") between the Company and First National Bank of Chicago, as Trustee
(the "Subordinated Trustee") (collectively 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 debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt 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[s] and provisions of the Warrant
Certificates and the 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:
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2 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 or in a composite currency, including but not
limited to the European Currency Unit.
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. 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 a
Warrant Security in the principal amount of
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] 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 [, except that the
Global Warrant Certificate may be executed by any such officer without any
necessity that such signature be under seal as aforesaid]. 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.
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.
2
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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, 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
[in registered form], 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. [The term "Holder", when used with respect to
the Global Warrant Certificate, shall mean the bearer thereof.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase 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 _________ aggregate
principal amount of Warrant Securities and shall[, in the case of Warrant
Certificates in registered form,] deliver such Warrant Certificates to or upon
the order of the Company [and, in the case of the Global Warrant Certificate,
upon the order of the Company, deposit the Global Warrant Certificate with
________________ , as common depositary (the "Common Depositary") for Xxxxxx
Guaranty Trust Company of New York, Brussels office (or any successor), as
operator of the Euroclear System (the "Euroclear Operator"), and for Cedelbank
for credit to the accounts of persons appearing from time to time on the records
of the Euroclear Operator or of Cedelbank as being entitled to any portion
thereof. [The Global Warrant Certificate shall be held by the Common Depositary
outside the United Kingdom.]] 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
3
previously countersigned Warrant Certificates or [, with respect to Warrant
Certificates in registered form,] in 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 [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] 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 [in registered form] 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 [in registered form]. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates [in registered form]
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 [in registered
form] 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 [in registered form].
[SECTION 1.04. Temporary Global Security. Prior to the Detachable Date,
each Offered Security to be issued with Warrants evidenced by the Global Warrant
Certificate shall, whenever issued, be evidenced by a single temporary Global
Offered Security in bearer form without interest coupons (the "Temporary Global
Security") to be issued by the Company as provided in the Indenture.]
4
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On 19 the exercise price of each Warrant
will be . During the period from , 19 through and including
, 19 , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from
, 19 . On , 19 , the exercise price of each Warrant
will be . During the period from
, 19 through and including , 19 , the exercise price of
each Warrant will be plus [accrued amortization of the original issue
discount] [accrued interest] from 19 . [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 ].
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] [ , 19 ]
and at or before [time, location] on , 19 (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. [With respect to Warrants evidenced
by Warrant Certificates in registered form, during] [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
5
(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)) 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.
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may be
exercised by the Holder by presentation to the Warrant Agent at its office at
[address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate (or written confirmation reasonably satisfactory to
the Warrant Agent that the Global Warrant Certificate is held by the Euroclear
Operator and Cedelbank and will be duly endorsed to reflect the exercise of
Warrants by the Euroclear Operator and Cedelbank), (ii) a duly executed
certification from the Euroclear Operator or Cedelbank, as the case may be,
substantially in the form set forth in Exhibit C hereto and (iii) payment 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,] of 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, 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, 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)). Notwithstanding the foregoing, the Holder may exercise
Warrants as aforesaid on the Expiration Date at any time prior to [time] in
[city of Warrant Agent's office]. Any Warrants exercised as set forth in this
paragraph shall be deemed exercised at the [country] office of the Warrant
Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euroclear Operator of Cedelbank through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
6
[The delivery to the Warrant Agent by the Euroclear Operator or
Cedelbank of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit D
hereto has or have been delivered to the Euroclear Operator or Cedelbank, as the
case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate may be presented for exercise of the
Warrants represented thereby and notices and demands to or upon the Company in
respect of the Warrants or of this Agreement may be made.]
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 [in registered form or, as the case may be, the Global
Warrant Certificate and the certification of Euroclear Operator or Cedelbank] 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 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 [and the Common Depositary at [both] its
London and [location] office[s]] in writing [(which, in the case of exercised
Warrants represented by the Global Warrant Certificate, shall be tested telex
with appropriate answerback received,)] of (i) the number of Warrants exercised,
(ii) the instructions of each Holder of the Warrant Certificates [in registered
form] evidencing such Warrants [or of the Euroclear Operator or Cedelbank, as
the case
7
may be,] with respect to delivery of the Warrant Securities to be issued upon
such exercise, (iii) delivery of any Warrant Certificates [in registered form]
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. [In addition, in the case of exercised Warrants evidenced by the Global
Warrant Certificate, the Warrant Agent shall, as promptly as practicable,
endorse, or cause the Common Depositary, [location] office, or one of the
Warrant Agent's agents to endorse, Schedule A annexed to the Global Warrant
Certificate to reflect the exercise of such Warrants and, if applicable, return
the Global Warrant Certificate to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], 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 Indentures, 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 [in registered form] evidencing the number of such Warrants
remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euroclear Operator or Cedelbank, as the case may be, to
or upon order of the Euroclear Operator or Cedelbank, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Cedelbank, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however, that
no Warrant Security in bearer form shall be mailed or otherwise delivered to any
location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico.]
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 CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants
or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder of 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.
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; provided, however, that
any Global Warrant Certificate shall be so delivered only to the Common
Depositary.] 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 [in registered
9
form or the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant Agent,
the relevant Trustee, the holder of any Offered Securities of 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 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 [or the
Global Warrant Certificate, as the case may be,] and in this Agreement. [Neither
the Company nor the Warrant Agent shall be required to treat any person as a
beneficial owner of any Warrant evidenced by the Global Warrant Certificate
unless such person is so certified as such a beneficial owner by the Euroclear
Operator or Cedelbank.]
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 Indentures, 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 Indentures, 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
Indentures, 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 Indentures.
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ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the
corporate trust office of the Warrant Agent at [address] [or _______ ], Warrant
Certificates [in registered form] evidencing Warrants may be exchanged for
Warrant Certificates [in registered form] 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 [in
registered form] and exchanges and transfers of outstanding Warrant Certificates
[in registered form] 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 [in registered form], 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 [in registered form], 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 [in
registered form], 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 [in registered form],
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(e) All Warrant Certificates [in registered form], 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.
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SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing with such Holder 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.] [With respect to Warrant Certificates in
registered form, each] [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 books of such Warrant Agent, 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 relevant Trustee of its election to
redeem [, as a whole but not in part,] 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 [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of the Warrant Securities pursuant to
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.
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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. 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
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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 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
14
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
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
15
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 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.
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ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) 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.
(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 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 Warrants of any series, reduces the amount
receivable upon exercise, cancellation or expiration of the Warrants other than
in accordance with the antidilution provisions or other similar adjustment
provisions included in the terms of the Warrants, shortens the period of time
during which the 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 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 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 Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
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.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ,
17
Attention: __________ , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Xxxxxx Xxxxxxx Xxxx
Xxxxxx & Co., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 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. [Except as
otherwise provided in Section 3.03, nothing] [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.
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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 [in registered form] 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. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
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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.
XXXXXX XXXXXXX XXXX XXXXXX & CO.
[SEAL] By:_____________________________
Name:
Title:
Attest:
By:_________________________
Name:
Title:
[WARRANT AGENT]
[SEAL] By:______________________________
Name:
Title:
Attest:
By:______________________
Name:
Title:
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