EXHIBIT 4.5
EXECUTION COPY
VISKASE COMPANIES, INC.
Warrants to Purchase
Shares of Common Stock
WARRANT AGREEMENT
Dated as of June 29, 2004
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Warrant Agent
WARRANT AGREEMENT, dated as of June 29, 2004 (this "Agreement"), between
Viskase Companies, Inc., a Delaware corporation (the "Company"), and Xxxxx Fargo
Bank, National Association, as warrant agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue warrants (the "Warrants") to
initially purchase up to an aggregate of 805,230 shares of common stock, par
value $0.01 per share (the "Common Stock"), of the Company (the Common Stock
issuable on exercise of the Warrants being referred to herein as the "Warrant
Shares"), each Warrant initially representing the right to purchase 8.947
Warrant Shares, in connection with the offering (the "Offering") by the Company
of 90,000 units (the "Units"), each Unit consisting of (i) $1,000 principal
amount at maturity of the 11 -1/2% Senior Secured Notes due 2011 of the Company
(the "Notes") and (ii) one Warrant.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act in connection with the
issuance of Warrant Certificates (as defined) and other matters as provided
herein.
WHEREAS, the Company has entered into that certain Capital Equity
Registration, Rights Agreement, dated as of June 29, 2004, between the Company
and Xxxxxxxxx & Company, Inc. for the benefit of holders of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"144A Global Warrant" means a global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Warrant, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Board of Directors" means, as to any Person, the board of directors or
similar governing body of such Person or any duly authorized committee thereof.
"Business Day" means any day other than a Legal Holiday.
"Clearstream" means Clearstream Banking, S.A.
"Closing Date" means the date hereof.
"Definitive Warrant" means a Warrant Certificate issued in registered form
as a definitive Warrant Certificate.
"Depositary" means, with respect to the Warrants issuable or issued in
whole or in part in global form, the Person specified in Section 3.3 hereof as
the Depositary with respect to the Warrants, and any and all successors thereto
appointed as Depositary hereunder and having become such pursuant to the
applicable provision of this Agreement.
"Equity Registration Rights Agreement" means the registration rights
agreement, dated as of June 29, 2004, by and among the Company and the Initial
Purchaser relating to the Warrant Shares.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means the amount set forth in the form of Warrant
Certificate attached hereto as Exhibit A, as adjusted as herein provided.
"Global Warrants" means, individually and collectively, each of the
Restricted Global Warrants and the Unrestricted Global Warrants, substantially
in the form of Exhibit A hereto issued in accordance with Section 3.1(b) and 3.5
hereof.
"Global Warrant Legend" means the legend set forth in Section 3.5(f)(ii),
which is required to be placed on all Global Warrants issued under this
Agreement.
"IAI Global Warrant" means the Global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee.
"Indenture" means the indenture, dated as of June 29, 2004, among the
Company, the Guarantors set forth therein and LaSalle Bank, National
Association, as trustee, relating to the Notes.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Warrant through a Participant.
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
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"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, which is not also a QIB.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the corporate trust
office of the Warrant Agent is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Officer" means, with respect to any Person, means the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President or the
Treasurer of such Person.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Warrant Agent in form and substance reasonably acceptable to
the Warrant Agent. The counsel may without limitation be an employee of or
counsel to the Company, any subsidiary of the Company or the Warrant Agent.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section 3.5(f)(i)
to be placed on all Warrants issued under this Warrant Agreement except where
otherwise permitted by the provisions of this Warrant Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrable Security" means, at any time, any of (i) the Warrant Shares
(whether or not the related Warrants have been exercised) and (ii) any other
securities issued or issuable with respect to any Warrant Shares by way of stock
dividends or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
offering of such securities by the holder thereof shall have been declared
effective under the Securities Act and such securities shall have been disposed
of by such holder pursuant to such registration statement, (b) such securities
have been sold to the public pursuant to Rule 144(k) (or any similar provisions
then in force, but not Rule 144A) promulgated under the Securities Act, (c) such
securities shall have been otherwise transferred by the holder thereof and new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company or its transfer agent and
subsequent disposition of such securities shall not require
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registration or qualification under the Securities Act or any similar state law
then in force or (d) such securities shall have ceased to be outstanding.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Warrant" means a Global Warrant in the form of
Exhibit A hereto bearing the Global Warrant Legend, the Private Placement Legend
and the Regulation S Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee.
"Regulation S Legend" means the legend set forth in Section 3.5(f)(iv) to
be placed on all Regulation S Global Warrants issued pursuant to Regulation S.
"Restricted Definitive Warrant" means a Definitive Warrant bearing the
Private Placement Legend.
"Restricted Global Warrant" means a Global Warrant bearing the Private
Placement Legend.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation Date" means the earliest of (i) 180 days following the
consummation of the offering of the Units, (ii) the date on which a registration
statement for a registered exchange offer with respect to the Notes is declared
effective under the Securities Act, (iii) the date on which a shelf registration
statement with respect to the Warrant Shares is declared effective under the
Securities Act and (iv) such date as Xxxxxxxxx & Company, Inc., as the initial
purchaser of the Units, in its sole discretion shall determine.
"Trustee" means the trustee under the Indenture.
"Unrestricted Global Warrant" means a Global Warrant that does not bear
the Private Placement Legend.
"Unrestricted Definitive Warrant" means one or more Definitive Warrants
that do not bear and are not required to bear the Private Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"Warrant Paying Agent" means an office or agency where Warrants may be
presented for surrender. The Company initially appoints the Warrant Agent to act
as Warrant Paying Agent.
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Section 2. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth hereinafter in this
Agreement and the Warrant Agent hereby accepts such appointment.
Section 3. Issuance of Warrants; Warrant Certificates.
3.1. Form and Dating.
(a) General. The Warrants shall be substantially in the form of Exhibit A
hereto (each a "Warrant Certificate"). The Warrants may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Warrant
shall be dated the date of the countersignature.
The terms and provisions contained in the Warrants shall constitute, and
are hereby expressly made, a part of this Warrant Agreement. The Company and the
Warrant Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Warrant conflicts with the express provisions
of this Warrant Agreement, the provisions of this Warrant Agreement shall govern
and be controlling.
(b) Global Warrants. Warrants issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Warrant Legend
thereon and the "Schedule of Exchanges of Interests in the Global Warrant"
attached thereto). Warrants issued in definitive form shall be substantially in
the form of Exhibit A attached hereto (but without the Global Warrant Legend
thereon and without the "Schedule of Exchanges of Interests in the Global
Warrant" attached thereto). Each Global Warrant shall represent such of the
outstanding Warrants as shall be specified therein and each shall provide that
it shall represent the number of outstanding Warrants from time to time endorsed
thereon and that the number of outstanding Warrants represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Warrant to reflect the amount of any
increase or decrease in the number of outstanding Warrants represented thereby
shall be made by the Warrant Agent in accordance with instructions given by the
holder thereof as required by Section 3.5 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream shall be applicable to transfers
of beneficial interests in the Regulation S Global Warrant that are held by
Participants through Euroclear or Clearstream.
3.2. Execution.
An Officer shall sign the Warrants on behalf of the Company by manual or
facsimile signature.
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If the Officer whose signature is on a Warrant no longer holds that office
at the time a Warrant is countersigned, the Warrant shall nevertheless be valid.
A Warrant shall not be valid until countersigned by the manual signature
of the Warrant Agent. The signature shall be conclusive evidence that the
Warrant has been properly issued under this Warrant Agreement.
The Warrant Agent shall, upon a written order of the Company signed by an
Officer (a "Warrant Countersignature Order"), countersign Warrants for original
issue up to the number stated in the preamble hereto.
The Warrant Agent may appoint an agent acceptable to the Company to
countersign Warrants. Such an agent may countersign Warrants whenever the
Warrant Agent may do so. Each reference in this Warrant Agreement to a
countersignature by the Warrant Agent includes a countersignature by such agent.
Such an agent has the same rights as the Warrant Agent to deal with the Company
or an Affiliate of the Company.
3.3. Warrant Registrar and Depositary.
The Company shall maintain an office or agency where Warrants may be
presented for registration of transfer or for exchange ("Warrant Registrar").
The Warrant Registrar shall keep a register of the Warrants and of their
transfer and exchange. The Company may appoint one or more co-Warrant
Registrars. The term "Warrant Registrar" includes any co-Warrant Registrar. The
Company may change any Warrant Registrar without notice to any holder. The
Company shall notify the Warrant Agent in writing of the name and address of any
agent not a party to this Warrant Agreement. If the Company fails to appoint or
maintain another entity as Warrant Registrar, the Warrant Agent shall act as
such. The Company or any of its subsidiaries may act as Warrant Registrar.
The Company initially appoints the Warrant Agent to act as the Warrant
Registrar with respect to the Global Warrants.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Warrants.
3.4. Holder Lists.
The Warrant Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all holders of Warrants. If the Warrant Agent is not the Warrant Registrar, the
Company shall promptly furnish to the Warrant Agent at such times as the Warrant
Agent may request in writing, a list in such form and as of such date as the
Warrant Agent may reasonably require of the names and addresses of the holders
as set forth in the Company's books and records.
3.5. Transfer and Exchange.
(a) Transfer and Exchange of Global Warrants. A Global Warrant may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of
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the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. All Global Warrants will be exchanged by the Company
for Definitive Warrants if (i) the Company delivers to the Warrant Agent notice
from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Warrants (in
whole but not in part) should be exchanged for Definitive Warrants and delivers
a written notice to such effect to the Warrant Agent. Upon the occurrence of
either of the preceding events in (i) or (ii) above, Definitive Warrants shall
be issued in such names as the Depositary shall instruct the Warrant Agent.
Global Warrants also may be exchanged or replaced, in whole or in part, as
provided in Sections 3.6 and 3.7 hereof. A Global Warrant may not be exchanged
for another Warrant other than as provided in this Section 3.5(a), however,
beneficial interests in a Global Warrant may be transferred and exchanged as
provided in Section 3.5(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Warrants.
The transfer and exchange of beneficial interests in the Global Warrants shall
be effected through the Depositary, in accordance with the provisions of this
Warrant Agreement and the Applicable Procedures. Beneficial interests in the
Restricted Global Warrants shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Warrants also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Warrant.
Beneficial interests in any Restricted Global Warrant may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Warrant in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Warrant may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Warrant. No written orders or instructions shall be
required to be delivered to the Warrant Registrar to effect the transfers
described in this Section 3.5(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Warrants. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 3.5(b)(i) above, the
transferor of such beneficial interest must deliver to the Warrant
Registrar both (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Warrant in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
both (B) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Warrant in an
amount equal to the beneficial interest to be
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transferred or exchanged and (2) instructions given by the Depositary to
the Warrant Registrar containing information regarding the Person in whose
name such Definitive Warrant shall be registered. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in
Global Warrants contained in this Agreement and the Warrants or otherwise
applicable under the Securities Act, the Warrant Agent shall adjust the
principal amount of the relevant Global Warrant(s) pursuant to Section
3.5(g) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Warrant. A beneficial interest in any Restricted Global Warrant may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Warrant if the transfer
complies with the requirements of Section 3.5(b)(ii) above and the Warrant
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 000X Xxxxxx Xxxxxxx, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Warrant, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof, if
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Warrant, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Warrant for Beneficial Interests in the Unrestricted Global
Warrant. A beneficial interest in any Restricted Global Warrant may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Warrant or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Warrant if the exchange or transfer complies with the requirements of
Section 3.5(b)(ii) above and the Warrant Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Warrant, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Warrant, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
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and, in each such case set forth in this subparagraph (iv), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (iv) above at a
time when an Unrestricted Global Warrant has not yet been issued, the Company
shall issue and, upon receipt of an Warrant Countersignature Order in accordance
with Section 3.2 hereof, the Warrant Agent shall countersign one or more
Unrestricted Global Warrants in the number equal to the number of beneficial
interests transferred pursuant to subparagraph (iv) above.
(c) Transfer and Exchange of Beneficial Interests for Definitive Warrants.
(i) Beneficial Interests in Restricted Global Warrants to Restricted
Definitive Warrants. If any holder of a beneficial interest in a
Restricted Global Warrant proposes to exchange such beneficial interest
for a Restricted Definitive Warrant or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Warrant, then, upon receipt by the Warrant Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for a
Restricted Definitive Warrant, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable; or
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(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof;
the Warrant Agent shall cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the number of
Warrants represented by the Global Warrant to be reduced by the number of
Warrants to be represented by the Definitive Warrant pursuant to Section 3.5(g)
hereof, and the Company shall execute and the Warrant Agent shall countersign
and deliver to the Person designated in the instructions a Definitive Warrant in
the appropriate amount. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.5(c) shall be registered in such name or names as the holder of such
beneficial interest shall instruct the Warrant Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Warrant
Agent shall deliver such Definitive Warrants to the Persons in whose names such
Warrants are so registered. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.5(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Warrants to
Unrestricted Definitive Warrants. A holder of a beneficial interest in a
Restricted Global Warrant may exchange such beneficial interest for an
Unrestricted Definitive Warrant or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Warrant only if the Warrant Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for an
Unrestricted Definitive Warrant, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(B) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Warrant, a certificate from such holder in
the form of Exhibit B hereto, including the certifications in item
(4) thereof; and, in each such case set forth in this subparagraph
(ii), if the Warrant Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Warrant Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Warrants to
Unrestricted Definitive Warrants. If any holder of a beneficial interest
in an Unrestricted Global Warrant proposes to exchange such beneficial
interest for a Definitive Warrant or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Warrant, then, upon satisfaction of the conditions set forth in Section
3.5(b)(ii) hereof, the Warrant Agent shall cause the amount of the
applicable Global Warrant to be
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reduced accordingly pursuant to Section 3.5(g) hereof, and the Company
shall execute and the Warrant Agent shall countersign and deliver to the
Person designated in the instructions a Definitive Warrant in the
appropriate principal amount. Any Definitive Warrant issued in exchange
for a beneficial interest pursuant to this Section 3.5(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Warrant Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Warrant Agent shall deliver such
Definitive Warrants to the Persons in whose names such Warrants are so
registered. Any Definitive Warrant issued in exchange for a beneficial
interest pursuant to this Section 3.5(c)(iii) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Warrants for Beneficial Interests.
(i) Restricted Definitive Warrants to Beneficial Interests in
Restricted Global Warrants. If any holder of a Restricted Definitive
Warrant proposes to exchange such Warrant for a beneficial interest in a
Restricted Global Warrant or to transfer such Restricted Definitive
Warrants to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Warrant, then, upon receipt by
the Warrant Registrar of the following documentation:
(A) if the holder of such Restricted Definitive Warrant
proposes to exchange such Warrant for a beneficial interest in a
Restricted Global Warrant, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Warrant is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Warrant is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such Restricted Definitive Warrant is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Warrant is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable; or
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(F) if such Restricted Definitive Warrant is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof;
the Warrant Agent shall cancel the Restricted Definitive Warrant and
increase or cause to be increased the amount of, in the case of clause (A)
above, the appropriate Restricted Global Warrant, in the case of clause
(B) above, the 000X Xxxxxx Xxxxxxx, in the case of clause (C) above, the
Regulation S Global Warrant, and in all other cases, the IAI Global
Warrant.
(ii) Restricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A holder of a Restricted Definitive Warrant
may exchange such Warrant for a beneficial interest in an Unrestricted
Global Warrant or transfer such Restricted Definitive Warrant to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Warrant only if the Warrant Registrar receives the
following:
(A) if the holder of such Definitive Warrants proposes to
exchange such Warrants for a beneficial interest in the Unrestricted
Global Warrant, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(B) if the holder of such Definitive Warrants proposes to
transfer such Warrants to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Warrant, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 3.5(d)(ii), the Warrant Agent shall cancel the Definitive
Warrants and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Warrant.
(iii) Unrestricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A holder of an Unrestricted Definitive
Warrant may exchange such Warrant for a beneficial interest in an
Unrestricted Global Warrant or transfer such Definitive Warrants to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Warrant at any time. Upon receipt of a request for
such an exchange or transfer, the Warrant Agent shall cancel the
applicable Unrestricted Definitive Warrant and increase or cause to be
increased the amount of one of the Unrestricted Global Warrants.
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If any such exchange or transfer from a Definitive Warrant to a beneficial
interest is effected pursuant to subparagraphs (ii)(B) or (iii) above at a
time when an Unrestricted Global Warrant has not yet been issued, the
Company shall issue and, upon receipt of an Warrant Countersignature Order
in accordance with Section 3.2 hereof, the Warrant Agent shall countersign
one or more Unrestricted Global Warrants in the number equal to the number
of beneficial interests of Definitive Warrants so transferred.
(e) Transfer and Exchange of Definitive Warrants for Definitive Warrants.
Upon request by a holder of Definitive Warrants and such holder's compliance
with the provisions of this Section 3.5(e), the Warrant Registrar shall register
the transfer or exchange of Definitive Warrants. Prior to such registration of
transfer or exchange, the requesting holder shall present or surrender to the
Warrant Registrar the Definitive Warrants duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Warrant Registrar
duly executed by such holder or by its attorney, duly authorized in writing. In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 3.5(e).
(i) Restricted Definitive Warrants to Restricted Definitive
Warrants. Any Restricted Definitive Warrant may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Warrant if the Warrant Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
or
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Warrants to Unrestricted Definitive
Warrants. Any Restricted Definitive Warrant may be exchanged by the holder
thereof for an Unrestricted Definitive Warrant or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Warrant if the Warrant Registrar receives the following:
(A) if the holder of such Restricted Definitive Warrants
proposes to exchange such Warrants for an Unrestricted Definitive
Warrant, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
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(B) if the holder of such Restricted Definitive Warrants
proposes to transfer such Warrants to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Warrant,
a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Warrant
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Warrant Registrar to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Warrants to Unrestricted Definitive
Warrants. A holder of Unrestricted Definitive Warrants may transfer such
Warrants to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Warrant. Upon receipt of a request to register
such a transfer, the Warrant Registrar shall register the Unrestricted
Definitive Warrants pursuant to the instructions from the holder thereof.
(f) Legends. The following legends shall appear on the face of all Global
Warrants and Definitive Warrants issued under this Warrant Agreement unless
specifically stated otherwise in the applicable provisions of this Warrant
Agreement.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Warrant and each Definitive Warrant (and all Warrants issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS WARRANT, THE WARRANT SHARES NOR ANY INTEREST
OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS
WARRANT IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH WARRANT, PRIOR TO THE DATE (THE
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"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
(AS HEREINAFTER DEFINED) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THIS WARRANT IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS WARRANT
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE WARRANT AGENT'S, OR TRANSFER AGENT'S, AS APPLICABLE, RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS WARRANT IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
WARRANT AGENT OR THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS WARRANT AND THE WARRANT SHARES TO BE ISSUED UPON ITS
EXERCISE, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO ENGAGE IN ANY HEDGING
TRANSACTION UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THE HOLDER OF
THIS WARRANT AND THE WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE, BY ITS
ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
WARRANT OR ANY INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THESE LEGENDS."
(B) Notwithstanding the foregoing, any Global Warrant or
Definitive Warrant issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii),
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(e)(ii) or (e)(iii) to this Section 3.5 (and all Warrants issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Warrant Legend. Each Global Warrant shall bear a legend
in substantially the following form:
"THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE WARRANT
AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF THE
WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT, (III)
THIS GLOBAL WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR CANCELLATION
PURSUANT TO SECTION 3.8 OF THE WARRANT AGREEMENT AND (IV) THIS GLOBAL
WARRANT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(iii) Unit Legend. Each Warrant issued prior to the Separation Date
shall bear a legend in substantially the following form:
"THIS WARRANT WAS INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS (THE
"UNITS"), EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT OF THE
COMPANY'S 11-1/2% SENIOR SECURED NOTES DUE 2011 (THE "NOTES") AND ONE
WARRANT TO PURCHASE 8.947 SHARES OF THE COMPANY'S COMMON STOCK (THE
"WARRANT SHARES").
PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS FOLLOWING THE CONSUMMATION
OF THE OFFERING OF THE UNITS, (II) THE DATE ON WHICH A REGISTRATION
STATEMENT FOR A REGISTERED EXCHANGE OFFER WITH RESPECT TO THE NOTES IS
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (III) THE DATE ON WHICH A
SHELF REGISTRATION STATEMENT WITH RESPECT TO THE WARRANT SHARES IS
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (IV) SUCH DATE AS
XXXXXXXXX & COMPANY, INC., AS THE INITIAL PURCHASER OF THE UNITS, IN ITS
SOLE DISCRETION SHALL DETERMINE, THIS WARRANT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY AS, A
UNIT (THE "SEPARATION DATE")."
(iv) Regulation S Legend. Each Warrant that is a Registrable
Security and issued pursuant to Regulation S shall bear the following
legend on the face thereof:
"THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT AND THE
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WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. IN
ORDER TO EXERCISE THIS WARRANT, THE HOLDER MUST FURNISH TO THE COMPANY AND
THE WARRANT AGENT EITHER (A) A WRITTEN CERTIFICATION THAT IT IS NOT A U.S.
PERSON AND THE WARRANT IS NOT BEING EXERCISED ON BEHALF OF A U.S. PERSON
OR (B) A WRITTEN OPINION OF COUNSEL TO THE EFFECT THAT THE SECURITIES
DELIVERED UPON EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TERMS IN THIS LEGEND HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(g) Cancellation and/or Adjustment of Global Warrants. At such time as all
beneficial interests in a particular Global Warrant have been exercised or
exchanged for Definitive Warrants or a particular Global Warrant has been
exercised, redeemed, repurchased or canceled in whole and not in part, each such
Global Warrant shall be returned to or retained and canceled by the Warrant
Agent in accordance with Section 3.8 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Warrant is exercised or
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Warrant or for Definitive
Warrants, the amount of Warrants represented by such Global Warrant shall be
reduced accordingly and an endorsement shall be made on such Global Warrant by
the Warrant Agent or by the Depositary at the direction of the Warrant Agent to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Warrant, such other Global Warrant shall
be increased accordingly and an endorsement shall be made on such Global Warrant
by the Warrant Agent or by the Depositary at the direction of the Warrant Agent
to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Warrant Agent shall countersign Global Warrants and
Definitive Warrants upon the Company's order or at the Warrant Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Warrant or to a holder of a Definitive Warrant for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
(iii) All Global Warrants and Definitive Warrants issued upon any
registration of transfer or exchange of Global Warrants or Definitive
Warrants shall be the duly authorized, executed and issued warrants for
Common Stock of the Company, not subject to any preemptive rights, and
entitled to the same benefits under this Warrant Agreement,
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as the Global Warrants or Definitive Warrants surrendered upon such
registration of transfer or exchange.
(iv) In connection with the due presentment for the registration of
a transfer of any Warrant, the Warrant Agent and the Company may deem and
treat the Person in whose name any Warrant is registered as the absolute
owner of such Warrant for all purposes and neither the Warrant Agent nor
the Company shall be affected by notice to the contrary.
(v) The Warrant Agent shall countersign Global Warrants and
Definitive Warrants in accordance with the provisions of Section 3.2
hereof.
(i) Facsimile Submissions to Warrant Agent. All certifications,
certificates and Opinions of Counsel required to be submitted to the Warrant
Registrar pursuant to this Section 3.5 to effect a registration of transfer or
exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any certificates
and/or certifications delivered to the Warrant Registrar pursuant to this
Section 3.5, the Warrant Registrar's duties shall be limited to confirming that
any such certifications and certificates delivered to it are in the form of
Exhibits B and C attached hereto. The Warrant Registrar shall not be responsible
for confirming the truth or accuracy of representations made in any such
certifications or certificates. As to any Opinions of Counsel delivered pursuant
to this Section 3.5, the Warrant Registrar may rely upon, and be fully protected
in relying upon, such opinions.
3.6. Replacement Warrants.
If any mutilated Warrant is surrendered to the Warrant Agent or the
Company and the Warrant Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant, the Company shall issue and the
Warrant Agent, upon receipt of a Warrant Countersignature Order, shall
countersign a replacement Warrant if the Warrant Agent's requirements are met.
If required by the Warrant Agent or the Company, an indemnity bond must be
supplied by the holder that is sufficient in the judgment of the Warrant Agent
and the Company to protect the Company, the Warrant Agent and any agent for
purposes of the countersignature from any loss that any of them may suffer if a
Warrant is replaced. The Company may charge for its expenses in replacing a
Warrant.
Every replacement Warrant is an additional warrant of the Company and
shall be entitled to all of the benefits of this Warrant Agreement equally and
proportionately with all other Warrants duly issued hereunder.
3.7. Temporary Warrants.
Until certificates representing Warrants are ready for delivery, the
Company may prepare and issue and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall countersign temporary Warrants. Temporary Warrants
shall be substantially in the form of certificated Warrants but may have
variations that the Company considers appropriate for temporary Warrants and
that shall be reasonably acceptable to the Warrant Agent. Without
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unreasonable delay, the Company shall prepare and the Warrant Agent shall
countersign definitive Warrants in exchange for temporary Warrants.
Holders of temporary Warrants shall be entitled to all of the benefits of
this Warrant Agreement.
3.8. Cancellation.
Subject to Section 3.5(g) hereof, the Company at any time may deliver
Warrants to the Warrant Agent for cancellation. The Warrant Registrar and
Warrant Paying Agent shall forward to the Warrant Agent any Warrants surrendered
to them for registration of transfer, exchange or exercise. The Warrant Agent
and no one else shall cancel all Warrants surrendered for registration of
transfer, exchange, exercise, replacement or cancellation and shall destroy
canceled Warrants (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all canceled Warrants shall be
delivered to the Company. The Company may not issue new Warrants to replace
Warrants that have been exercised or that have been delivered to the Warrant
Agent for cancellation.
Section 4. Separation of Warrants; Exercise of Warrants; Terms of
Warrants.
(a) The Notes and Warrants will not be separately transferable until the
Separation Date. Subject to the terms of this Agreement, each Warrant holder
shall have the right, which may be exercised during the period commencing at the
opening of business on the Separation Date and until 5:00 p.m., New York City
time on June 15, 2011 (the "Exercise Period"), to receive from the Company the
number of fully paid and nonassessable Warrant Shares which the holder may at
the time be entitled to receive on exercise of such Warrants and payment of the
aggregate Exercise Price for all Warrant Shares being purchased (i) in cash, by
wire transfer or by certified or official bank check payable to the order of the
Company, (ii) by tendering Notes having a principal amount at the time of tender
equal to the aggregate Exercise Price for all Warrant Shares being purchased,
(iii) by tendering Warrants as set forth below or (iv) any combination of cash,
Notes or Warrants. Each holder may elect, upon exercise of its Warrants during
the Exercise Period, to receive Warrant Shares on a net basis, such that,
without the exchange of any funds, the holder will receive such number of
Warrant Shares as shall equal the product of (A) the number of Warrant Shares
for which such Warrant is exercisable as of the date of exercise (if the
Exercise Price were being paid in cash) and (B) the Cashless Exercise Ratio. The
"Cashless Exercise Ratio" shall equal a fraction the numerator of which is the
Market Value (as defined below) per share of Common Stock on the date of
exercise minus the Exercise Price per share as of the date of exercise and the
denominator of which is the Market Value per share on the date of exercise. Each
Warrant not exercised prior to 5:00 p.m., New York City time, on June 15, 2011
(the "Expiration Date") shall become void and all rights thereunder and all
rights in respect thereof under this Agreement shall cease as of such time. The
Warrant Agent shall have no obligation to calculate the Cashless Exercise Ratio.
The "Market Value" per share of Common Stock as of any date shall equal
(i) if Common Stock is primarily traded on a securities exchange, the last sale
price of such Common Stock on such securities exchange on the trading day
immediately prior to the date of determination, or if no sale occurred on such
day, the mean between the closing "bid" and
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"asked" prices on such day, (ii) if the principal market for Common Stock is in
the over-the-counter market, the closing sale price of such Common Stock on the
trading day immediately prior to the date of the determination, as published by
the National Association of Securities Dealers Automated Quotation System or
similar organization, or if such price is not so published on such day, the mean
between the closing "bid" and "asked" prices, if available, on such day, which
prices may be obtained from any reputable pricing service, broker or dealer
reasonably satisfactory to the Company, and (iii) if neither clause (i) nor
clause (ii) is applicable, the fair market value on the date of determination of
Common Stock as determined in good faith by the Board of Directors of the
Company.
(b) In order to exercise all or any of the Warrants represented by a
Warrant Certificate, (i) in the case of a Definitive Warrant, the holder thereof
must surrender upon exercise the Warrant Certificate to the Company at the
corporate trust office of the Warrant Agent set forth in Section 15 hereof, (ii)
in the case of a book-entry interest in a Global Warrant, the exercising
Participant whose name appears on a securities position listing of the
Depositary as the holder of such book-entry interest must comply with the
Depositary's procedures relating to the exercise of such book-entry interest in
such Global Warrant and (iii) in the case of interests in both Global Warrants
and Definitive Warrants, the holder thereof or the Participant, as applicable,
shall deliver to the Company at the corporate trust office of the Warrant Agent
the form of election to purchase on the reverse thereof duly completed and
signed, which signature shall be medallion guaranteed by an institution which is
a member of a Securities Transfer Association recognized signature guarantee
program, and upon payment to the Warrant Agent for the account of the Company of
the Exercise Price, for the number of Warrant Shares in respect of which such
Warrants are then exercised. Payment of the aggregate Exercise Price shall be
made in accordance with Section 4(a) hereof.
(c) Subject to the provisions of Section 5 hereof, upon compliance with
clause (b) above, the Company shall deliver or cause to be delivered with all
reasonable dispatch, to or to the written order of the holder and in such name
or names as the holder may designate, a certificate or certificates for the
number of whole Warrant Shares issuable upon the exercise of such Warrants or
other securities or property to which such holder is entitled hereunder,
together with cash as provided in Section 9 hereof; provided that if any
consolidation, merger or lease or sale of assets is proposed to be effected by
the Company or its subsidiaries as described in Section 8(k) hereof, or a tender
offer or an exchange offer for shares of Common Stock shall be made, upon such
surrender of Warrants and payment of the aggregate Exercise Price in accordance
with Section 4(b) above, the Company shall, as soon as possible, but in any
event not later than two business days thereafter, deliver or cause to be
delivered the full number of Warrant Shares issuable upon the exercise of such
Warrants in the manner described in this sentence or other securities or
property to which such holder is entitled hereunder, together with cash as
provided in Section 9 hereof. All certificates in this Section 4(c) shall be
deemed to have been issued and any Person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and payment of the aggregate Exercise
Price.
(d) The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part. If less than all the
Warrants represented by a Warrant
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Certificate are exercised, such Warrant Certificate shall be surrendered and a
new Warrant Certificate of the same tenor and for the number of Warrants which
were not exercised shall be executed by the Company and delivered to the Warrant
Agent and the Warrant Agent shall countersign the new Warrant Certificate,
registered in such name or names as may be directed in writing by the holder,
and shall deliver or cause to be delivered the new Warrant Certificate to the
Person or Persons entitled to receive the same.
(e) All Warrant Certificates surrendered upon exercise of Warrants shall
be cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall report promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies received by
the Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the holders during
normal business hours at its office. The Company shall supply the Warrant Agent
from time to time with such numbers of copies of this Agreement as the Warrant
Agent may request.
Section 5. Payment of Taxes.
The Company shall pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issue of any Warrant Certificates or
any certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such Warrant Certificates
unless or until the Person or Persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 6. Reservation of Warrant Shares; Registration of Warrant Shares.
(a) The Company shall at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock and/or the authorized and issued Common Stock held in its treasury, for
the purpose of enabling it to satisfy any obligation to issue Warrant Shares
upon exercise of Warrants, the maximum number of shares of Common Stock which
may then be deliverable upon the exercise of all outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company shall keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from
time to time from such Transfer Agent the stock certificates required to honor
outstanding Warrants upon exercise
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thereof in accordance with the terms of this Agreement. The Company shall supply
such Transfer Agent with duly executed certificates for such purposes and shall
provide or otherwise make available any cash which may be payable as provided in
Section 9 hereof. The Company shall furnish such Transfer Agent a copy of all
notices of adjustments, and certificates related thereto, transmitted to each
holder pursuant to Section 10 hereof.
(c) Before or concurrently with taking any action which would cause an
adjustment pursuant to Section 8 hereof to reduce the Exercise Price below the
then par value (if any) of the Warrant Shares, the Company shall take any
corporate action which may, in the opinion of its counsel (which may be counsel
employed by the Company), be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise Price
as so adjusted.
(d) The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants shall, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issuance thereof.
Section 7. Obtaining Stock Exchange Listings.
The Company shall from time to time take all action which may be necessary
so that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on a principal securities exchange, automated quotation
system or other market within the United States of America, if any, on which
other shares of Common Stock are then listed, if any.
Section 8. Adjustment of Exercise Price and Number of Warrant Shares
Issuable.
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant shall be subject to adjustment from time to time upon
the occurrence of the events enumerated in this Section 8. Notwithstanding
anything to the contrary in this Agreement, in no event shall the Exercise Price
be less than the lower of the par value of the Common Stock or $0.01 per share
of Common Stock. For purposes of this Section 8, "Common Stock" means shares now
or hereafter authorized of any class of common shares of the Company however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
In addition to the adjustments required under this Section 8, the Company
may, at any time reduce the Exercise Price to any amount greater than or equal
to $0.01 per share for any period of time (but not less than 20 Business Days)
deemed appropriate by the Board of Directors of the Company.
(a) Adjustment for Change in Capital Stock. If the Company (i) pays a
dividend or makes a distribution on its Common Stock payable in shares of its
Common Stock, (ii) subdivides its outstanding shares of Common Stock into a
greater number of shares, (iii) combines its outstanding shares of Common Stock
into a smaller number of shares, (iv) makes a distribution on its Common Stock
in shares of its capital stock other than Common Stock or (v) issues by
reclassification of its Common Stock any shares of its capital stock, then the
Exercise
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Price in effect immediately prior to such action shall, subject to the second
sentence of the first paragraph of this Section 8, be proportionately adjusted
so that the holder of any Warrant exercised after such action may receive the
aggregate number and kind of shares of capital stock of the Company which such
holder would have owned immediately following such action assuming the exercise
of such Warrant immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If, after an adjustment pursuant to clause (v) above, a holder of a
Warrant upon exercise of it may receive shares of two or more classes of capital
stock of the Company, the Company shall determine, in good faith, the allocation
of the adjusted Exercise Price between the classes of capital stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall after such action be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section 8. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) Adjustment for Rights Issue. If the Company distributes any rights,
options or warrants to all holders of its Common Stock entitling them for a
period expiring within 45 days after the record date set forth below to
subscribe for shares of Common Stock or securities convertible into, or
exchangeable or exercisable for, shares of Common Stock, in either case, at a
price per share less than the Fair Market Value (as defined in subsection (g) of
this Section 8) per share on that record date, the Exercise Price shall be
adjusted in accordance with the formula:
O + N x P
-----
E' = E x M
------------------------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock
outstanding on the record date.
N = the number of additional shares of Common Stock
issued pursuant to such rights, options or warrants.
P = the price per share of the additional shares.
M = the Fair Market Value per share of Common Stock on the record
date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall
-23-
have been exercised, the Exercise Price shall be immediately readjusted to what
it would have been if "N" in the above formula had been the number of shares
actually issued.
(c) Adjustment for Other Distributions. If the Company distributes to all
holders of its Common Stock any of its assets (including cash), debt securities,
preferred stock or any rights or warrants to purchase assets (including cash),
debt securities, preferred stock or other securities of the Company, the
Exercise Price shall be adjusted in accordance with the formula:
E' = E x M - F
-------------
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Fair Market Value per share of Common
Stock on the record date mentioned below.
F = the fair market value on the record date
of the debt securities, preferred stock,
assets, securities, rights or warrants to be
distributed in respect of one share of
Common Stock as determined in good faith by
the Board of Directors of the Company.
The adjustment shall be made successively whenever any such distribution
is made and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution.
This Section 8(c) shall not apply to cash dividends or other cash
distributions paid out of consolidated current or retained earnings as shown on
the books of the Company prepared in accordance with generally accepted
accounting principles. In addition, this Section 8(c) shall not apply to rights,
options or warrants referred to in Section 8(b) hereof.
(d) Adjustment for Common Stock Issue.
(i) If the Company issues shares of Common Stock for a consideration
per share less than the Fair Market Value per share on the date the
Company fixes the offering price of such additional shares, the Exercise
Price shall be adjusted in accordance with the formula:
E' = E x O + P/M
------------
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
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O = the number of shares outstanding immediately
prior to the issuance of such additional shares.
P = the aggregate consideration received for the
issuance of such additional shares.
M = the Fair Market Value per share on the date of issuance
of such additional shares.
A = the number of shares outstanding immediately
after the issuance of such additional shares.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
(ii) This Section 8(d) shall not apply to:
(1) any of the transactions described in subsections (a), (b) and
(c) of this Section 8,
(2) the exercise of Warrants,
(3) the conversion, exchange or exercise of other securities
convertible into or exchangeable or exercisable for Common Stock the
issuance of which convertible securities requires an adjustment to be made
under Section 8(e),
(4) the issuance of Common Stock (and options exercisable therefore)
to employees, officers or directors of the Company or its subsidiaries
under bona fide employee benefit plans adopted by the Board of Directors
and approved by the holders of Common Stock when required by law, if such
Common Stock would otherwise be covered by this Section 8(d) (but only to
the extent that the aggregate number of shares excluded hereby and issued
after the date of this Warrant Agreement shall not exceed 25% of the
Common Stock outstanding at the time of the adoption of the most recent of
such plans, exclusive of anti-dilution adjustments thereunder),
(5) the issuance of Common Stock to shareholders or equity holders
of any Person which merges into the Company, or with a subsidiary of the
Company, in proportion to their stock or equity holdings of such Person
immediately prior to such merger, upon such merger, provided that if such
Person is an Affiliate of the Company, the Board of Directors, including a
majority of the independent directors, shall have determined that the
consideration received in such merger is fair to the Company from a
financial point of view; provided further that if the Board of Directors
shall not consist of at least one independent director who was not
appointed, nominated or designated to the Board of Directors through any
right of appointment, nomination or designation by an Affiliate of the
Company, the Company shall have obtained a fairness opinion from a
nationally recognized investment banking, appraisal or valuation firm
which is not an Affiliate of the Company to the effect that the
consideration received in such merger is fair to the Company from a
financial point of view,
-25-
(6) the issuance of securities upon the conversion, exchange or
exercise of other securities, warrants, options or similar rights if the
conversion, exchange or exercise price is not less than the Fair Market
Value per share of Common Stock at the time the security, warrant, option
or right so converted, exchanged or exercised was issued or granted, or
(7) the issuance of shares of Common Stock pursuant to rights,
options or warrants which were originally issued in a Non-Affiliate Sale
(as defined below) together with one or more other securities as part of a
unit at a price per unit.
(e) Adjustment for Convertible Securities Issue. If the Company issues any
securities convertible into or exchangeable or exercisable for Common Stock
(other than securities issued in transactions described in subsections (a), (b)
and (c) of this Section 8 or excluded from the application of Section 8(d)
pursuant to clause (ii) of Section 8(d)) for a consideration per share of Common
Stock initially deliverable upon conversion, exchange or exercise of such
securities less than the Fair Market Value per share on the date of issuance of
such securities, the Exercise Price shall be adjusted in accordance with the
formula:
E' = E x O + P/M
---------
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately
prior to the issuance of such securities.
P = the aggregate consideration received for the
issuance of such securities.
M = the Fair Market Value per share on the
date of issuance of such securities.
D = the maximum number of shares deliverable
upon conversion or in exchange for such
securities at the initial conversion,
exchange or exercise rate.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion, exchange or
exercise of such securities have not been issued when such securities are no
longer outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion, exchange or exercise of such
securities.
This subsection (e) shall not apply to warrants or other convertible
securities issued to shareholders or equity holders of any Person which merges
into the Company, or with a
-26-
subsidiary of the Company, in proportion to their stock or equity holdings of
such person immediately prior to such merger, upon such merger, provided that if
such Person is an Affiliate of the Company, the Board of Directors, including a
majority of the independent directors, shall have determined that the
consideration received in such merger is fair to the Company from a financial
point of view; provided further that if the Board of Directors shall not consist
of at least one independent director who was not appointed, nominated or
designated to the Board of Directors through any right of appointment,
nomination or designation by an Affiliate of the Company, the Company shall have
obtained a fairness opinion from a nationally recognized investment banking,
appraisal or valuation firm which is not an Affiliate of the Company to the
effect that the consideration received in such merger is fair to the Company
from a financial point of view.
(f) Consideration Received. For purposes of any computation respecting
consideration received pursuant to subsections (d) and (e) of this Section 8,
the following shall apply:
(1) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided that in no
case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive and
non-appealable, and described in a Board resolution which shall be filed
with the Warrant Agent;
(3) in the case of the issuance of securities convertible into or
exchangeable or exercisable for shares, the aggregate consideration
received therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion,
exchange or exercise thereof (the consideration in each case to be
determined in the same manner as provided in clauses (1) and (2) of this
subsection (f)); and
(4) in the case of the issuance of shares of Common Stock pursuant
to rights, options or warrants which rights, options or warrants were
originally issued together with one or more other securities as part of a
unit at a price per unit, the consideration shall be deemed to be the fair
value of such rights, options or warrants at the time of issuance thereof
as determined in good faith by the Board of Directors whose determination
shall be conclusive and non-appealable and described in a Board resolution
which shall be filed with the Warrant Agent plus the additional
consideration, if any, to be received by the Company upon the exercise,
conversion or exchange thereof (as determined in the same manner as
provided in clauses (1) and (2) of this subsection (f)).
(g) Fair Market Value. For purposes of Sections 8 (b), (c), (d) and (e)
hereof, the "Fair Market Value" per share of Common Stock at any date of
determination shall be (1) in
-27-
connection with a sale by the Company to a party that is not an Affiliate of the
Company in an arm's-length transaction (a "Non-Affiliate Sale"), the price per
security at which such security is sold and (2) in connection with any sale by
the Company to an Affiliate of the Company, (A) the last price per security at
which such security was sold in a Non-Affiliate Sale within the three-month
period preceding such date of determination and (B), if clause (A) is not
applicable, the fair market value of such security determined in good faith by
(i) a majority of the Board of Directors of the Company, including a majority of
the Disinterested Directors, and approved in a Board resolution delivered to the
Warrant Agent or (ii) a nationally recognized investment banking, appraisal or
valuation firm, which is not an Affiliate of the Company, in each case, taking
into account, among all other factors deemed relevant by the Board of Directors
or such investment banking, appraisal or valuation firm, the trading price and
volume of such security on any national securities exchange or automated
quotation system on which such security is traded.
For purposes of this Section 8(g), "Disinterested Director" means, in
connection with any issuance of securities that gives rise to a determination of
the Fair Market Value thereof, each member of the Board of Directors who is not
an officer, employee, director or other Affiliate of the party to whom the
Company is proposing to issue the securities giving rise to such determination.
For purposes of this Section 8(g), "Affiliate" of any specified Person
means (A) any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person and (B)
any director or officer of such specified Person. For purposes of this
definition "Control" (including, with correlative meanings, the terms
"Controlling," "Controlled By" and "Under Common Control With") as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
(h) When De Minimis Adjustment May Be Deferred. No adjustment in the
Exercise Price need be made unless the adjustment would require an increase or
decrease of at least 1% in the Exercise Price. Any adjustments that are not made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 8 shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be, it being understood that no
such rounding shall be made under Section 8(p).
(i) When No Adjustment Required. With respect to Warrants of any holder,
no adjustment need be made for a transaction referred to Section 8(a), (b), (c),
(d), (e) or (f) hereof, if such holder is to participate (without being required
to exercise its Warrants) in the transaction on a basis and with notice that the
Board of Directors determines to be fair and appropriate in light of the basis
and notice on which holders of Common Stock participate in the transaction. No
adjustment need be made for (i) rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or (ii) a change in the
par value or no par value of the Common Stock. To the extent the Warrants become
convertible into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
(j) Notice of Adjustment. Whenever the Exercise Price is adjusted, the
Company shall provide the notices required by Section 10 hereof.
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(k) Reorganization of Company. Immediately after the date hereof, if the
Company consolidates or merges with or into, or transfers or leases all or
substantially all its assets to, any Person, upon consummation of such
transaction the Warrants shall automatically become exercisable for the kind and
amount of securities, cash or other assets which the holder of a Warrant would
have owned immediately after the consolidation, merger, transfer or lease if the
holder had exercised the Warrant immediately before the consummation of the
transaction. Concurrently with the consummation of such transaction, the
corporation formed by or surviving any such consolidation or merger if other
than the Company, or the Person to which such sale or conveyance shall have been
made, shall enter into (i) a supplemental Warrant Agreement so providing and
further providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Section 8(k) and (ii) a
supplement to the Equity Registration Rights Agreement providing for the
assumption of the Company's obligations thereunder. The successor Company shall
mail to Warrant holders a notice describing the supplemental Warrant Agreement
and Equity Registration Rights Agreement. If the issuer of securities
deliverable upon exercise of Warrants under the supplemental Warrant Agreement
is an Affiliate of the formed, surviving, transferee or lessee corporation, such
issuer shall join in the supplemental Warrant Agreement and Equity Registration
Rights Agreement. If this Section 8(k) shall be applicable, Sections 8(a), (b),
(c), (d), (e) and (f) hereof shall not be applicable.
(l) Company Determination Final. Any determination that the Company or the
Board of Directors must make pursuant to Section 8(a), (c), (d), (e), (f), (g),
(h) or (i) hereof is conclusive and non-appealable.
(m) Warrant Agent's Disclaimer. The Warrant Agent shall have no duty to
determine when an adjustment under this Section 8 should be made, how it should
be made or what it should be. The Warrant Agent shall have no duty to determine
whether a supplemental Warrant Agreement under Section 8(k) need be entered into
or whether any provisions of a supplemental Warrant Agreement under Section 8(k)
hereof are correct. The Warrant Agent makes no representation as to the validity
or value of any securities or assets issued upon exercise of Warrants. The
Warrant Agent shall not be responsible for the Company's failure to comply with
this Section 8.
(n) When Issuance or Payment May Be Deferred. In any case in which this
Section 8 shall require that an adjustment in the Exercise Price be made
effective as of a record date for a specified event, the Company may elect to
defer until the occurrence of such event (i) issuing to the holder of any
Warrant exercised after such record date the Warrant Shares and other capital
stock of the Company, if any, issuable upon such exercise over and above the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the Exercise Price and (ii) paying to such holder
any amount in cash in lieu of a fractional share pursuant to Section 10 hereof;
provided that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive such additional
Warrant Shares, other capital stock and cash upon the occurrence of the event
requiring such adjustment.
(o) Adjustment in Number of Shares. Upon each adjustment of the Exercise
Price pursuant to this Section 8, each Warrant outstanding prior to the making
of the adjustment in the Exercise Price shall thereafter evidence the right to
receive upon payment of the adjusted
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Exercise Price that number of shares of Common Stock (calculated to the nearest
hundredth) obtained from the following formula:
N' = N x E
---
E'
where:
N' = the adjusted number of Warrant Shares
issuable upon exercise of a Warrant by
payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously
issuable upon exercise of a Warrant by
payment of the Exercise Price prior to
adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(p) Form of Warrants. Irrespective of any adjustments in the Exercise
Price or the number or kind of shares purchasable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
Section 9. Fractional Interests.
The Company shall not be required to issue fractional Warrant Shares on
the exercise of Warrants. If more than one Warrant shall be presented for
exercise in full at the same time by the same holder, the number of full Warrant
Shares which shall be issuable upon the exercise thereof shall be computed on
the basis of the aggregate number of Warrant Shares purchasable on exercise of
the Warrants so presented. If any fraction of a Warrant Share would, except for
the provisions of this Section 9, be issuable on the exercise of any Warrants
(or specified portion thereof), the Company shall pay an amount in cash equal to
the Fair Market Value per Warrant Share, as determined on the day immediately
preceding the date the Warrant is presented for exercise, multiplied by such
fraction, computed to the nearest whole U.S. cent.
Section 10. Notices to Warrant Holders.
(a) Upon any adjustment of the Exercise Price pursuant to Section 8
hereof, the Company shall promptly thereafter (i) cause to be filed with the
Warrant Agent a certificate of a firm of independent public accountants of
recognized standing selected by the Board of Directors of the Company (who may
be the regular auditors of the Company) setting forth the Exercise Price after
such adjustment and setting forth in reasonable detail the method of calculation
and the facts upon which such calculations are based and setting forth the
number of Warrant Shares (or portion thereof) issuable after such adjustment in
the Exercise Price, upon exercise of a Warrant and payment of the adjusted
Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of Warrants at the address appearing on the Warrant
register for each such registered holder written notice of such adjustments by
first-class mail, postage prepaid. Where
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appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 10.
(b) In the event:
(i) that the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants;
(ii) that the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets (other than dividends or cash distributions paid out of
consolidated current or retained earnings as shown on the books of the
Company prepared in accordance with generally accepted accounting
principles or dividends payable in shares of Common Stock or
distributions);
(iii) of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of
Common Stock issuable upon exercise of the Warrants (other than a change
in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or a tender
offer or exchange offer by the Company for shares of Common Stock;
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) that the Company proposes to take any action (other than actions
of the character described in Section 8(a) hereof) which would require an
adjustment of the Exercise Price pursuant to Section 8 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each registered holder of Warrants at his address appearing on
the Warrant register, at least 10 days prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (x)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, (y) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (z) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give the notice required
by this Section 10 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action.
-31-
(c) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders of Warrants the
right to vote or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
Section 11. Merger, Consolidation or Change of Name of Warrant Agent.
(a) Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 13 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in case
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
Section 12. Warrant Agent.
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company and the Warrant Agent assumes
no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution
of the Warrant Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company.
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(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant Certificate in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the
opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action
taken in reliance on any Warrant Certificate, certificate of shares,
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the execution of this Agreement.
The Company shall indemnify the Warrant Agent against any and all losses,
liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Warrant
Agreement, including the costs and expenses of enforcing this Agreement
against the Company and defending itself against any claim (whether
asserted by the Company or any holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence, bad faith or breach of this
Agreement. The Warrant Agent shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Warrant Agent to so
notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Warrant Agent shall
cooperate in the defense. The Warrant Agent may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Warrants shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such
action as it may consider proper, whether with or without any such
security or indemnity. All rights of action under this Agreement or under
any of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrant Certificates or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit
or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent and any recovery of judgment shall be for the ratable
benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other
securities of the Company or
-33-
become pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do
or refrain from doing in connection with this Agreement except for its own
gross negligence, bad faith or breach of this Agreement.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause
to be made any adjustment of the Exercise Price or number of the Warrant
Shares or other securities or property deliverable as provided in this
Agreement, or to determine whether any facts exist which may require any
of such adjustments, or with respect to the nature or extent of any such
adjustments, when made, or with respect to the method employed in making
the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Warrant Shares or of any
securities or property which may at any time be issued or delivered upon
the exercise of any Warrant or with respect to whether any such Warrant
Shares or other securities will when issued be validly issued and fully
paid and nonassessable, and makes no representation with respect thereto.
(j) The Warrant Agent shall not be required to risk or expend its
own funds on the performance of it obligations and duties hereunder.
(k) The obligations of the Company under this Section 12 shall
survive the exercise and the expiration of the Warrant Certificates and
the resignation and removal of the Warrant Agent.
(l) The Warrant Agent shall not be under any liability for interest
on, and shall not be required to invest, any monies at any time received
by it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(m) Any corporation or bank into which the Warrant Agent hereunder
may be merged or converted, or any corporation or bank with which the
Warrant Agent may be consolidated, or any corporation or bank resulting
from any merger, conversion or consolidation to which the Warrant Agent
shall be a party, or any corporation or bank to which the Warrant Agent
shall sell or otherwise transfer all or substantially all of its corporate
trust business, shall be the successor to the Warrant Agent under this
Agreement (provided that such corporation or bank shall be qualified as
aforesaid) without the execution or filing of any document or any further
act on the part of any of the parties hereto.
(n) No Warrant Agent under this Agreement shall be personally liable
for any action or omission of any successor Warrant Agent.
-34-
Section 13. Change of Warrant Agent.
If the Warrant Agent shall resign or become incapable of acting as Warrant
Agent, the Company shall appoint a successor to such Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after it
has been notified in writing of such incapacity by the Warrant Agent or by the
registered holder of a Warrant Certificate, then the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. The holders of a majority of
the unexercised Warrants shall be entitled at any time to remove the Warrant
Agent and appoint a successor to such Warrant Agent. Such successor to the
Warrant Agent need not be approved by the Company or the former Warrant Agent.
After appointment the successor to the Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed; provided that the former
Warrant Agent shall deliver and transfer to the successor to the Warrant Agent
any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section 13, however, or any defect therein,
shall not affect the legality or validity of the appointment of a successor to
the Warrant Agent.
Section 14. Reports.
(a) The Company agrees with each holder, for so long as any Warrants or
Warrant Shares remain outstanding and during any period in which the Company (i)
is not subject to Section 13 or 15(d) of the Exchange Act, to make available,
upon request of any holder, to such holder or beneficial owner of Warrants or
Warrant Shares in connection with any sale thereof and any prospective purchaser
of such Warrants or Warrant Shares designated by such holder or beneficial
owner, the information required by Rule 144(A)(d)(4) under the Act in order to
permit resales of such Warrants or Warrant Shares pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Warrants
or Warrant Shares pursuant to Rule 144A.
(b) The Company shall provide the Warrant Agent with a sufficient number
of copies of all such reports that the Warrant Agent may be required to deliver
to the holders of the Warrants and the Warrant Shares under this Section 14.
Section 15. Notices to Company and Warrant Agent.
Any notice or demand authorized by this Agreement to be given or made by
the Warrant Agent or by the registered holder of any Warrant to or on the
Company shall be sufficiently given or made when received if deposited in the
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
-35-
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxx, Chief Executive Officer
With a copy to:
Jenner & Block LLC
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
corporate trust office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder(s) of any Warrant to the Warrant Agent shall be sufficiently
given when and if deposited in the mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) to and received by the Warrant Agent at its corporate
trust office as follows:
Xxxxx Fargo Bank, National Association
Sixth St. and Marquette Ave.
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Corporate Trust Services- Viskase
Section 16. Supplements and Amendments.
The Company and the Warrant Agent may from time to time supplement or
amend this Agreement without the approval of any holders of Warrants in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not in any way materially adversely affect the interests of the
holders of Warrants. Any amendment or supplement to this Agreement that has a
materially adverse effect on the interests of the holders of Warrants shall
require the written consent of the holders of a majority of the then outstanding
Warrants (excluding Warrants held by the Company or any of its Affiliates). The
consent of each holder of Warrants affected shall be required for any amendment
pursuant to which the Exercise Price would be increased or the number of Warrant
Shares purchasable upon exercise of Warrants would be decreased (other than
pursuant to adjustments provided in this Agreement).
-36-
Section 17. Successors.
All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 18. Termination.
This Agreement shall terminate at 5:00 p.m., New York City time on June
15, 2011. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date if all Warrants have been exercised. The provisions of Section 12
shall survive such termination.
Section 19. Governing Law.
(a) This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the internal laws of said State.
(b) Each of the parties hereto irrevocably consents to the non-exclusive
jurisdiction of Supreme Court of New York, New York county and the United States
District Court for the Southern District of New York, New York county and waives
trial by jury in any action or proceeding with respect to this Agreement.
Section 20. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of Warrants any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the Company,
the Warrant Agent and the registered holders of Warrants.
Section 21. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
-37-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
Viskase Companies, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Warrant Agent
By: /s/ Xxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS WARRANT, THE WARRANT SHARES NOR ANY INTEREST
OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS
WARRANT IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH WARRANT, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY (AS
HEREINAFTER DEFINED) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
WARRANT IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE
A-1
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE WARRANT AGENT'S, OR TRANSFER AGENT'S, AS APPLICABLE, RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS WARRANT IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
WARRANT AGENT OR THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS WARRANT WAS INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS (THE
"UNITS"), EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT OF THE
COMPANY'S 11-1/2% SENIOR SECURED NOTES DUE 2011 (THE "NOTES") AND ONE
WARRANT TO PURCHASE 8.947 SHARES OF THE COMPANY'S COMMON STOCK (THE
"WARRANT SHARES").
PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS FOLLOWING THE CONSUMMATION
OF THE OFFERING OF THE UNITS, (II) THE DATE ON WHICH A REGISTRATION
STATEMENT FOR A REGISTERED EXCHANGE OFFER WITH RESPECT TO THE NOTES IS
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (III) THE DATE ON WHICH A
SHELF REGISTRATION STATEMENT WITH RESPECT TO THE WARRANT SHARES IS
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (IV) SUCH DATE AS
XXXXXXXXX & COMPANY, INC., AS THE INITIAL PURCHASER OF THE UNITS, IN ITS
SOLE DISCRETION SHALL DETERMINE, THIS WARRANT MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY AS, A
UNIT (THE "SEPARATION DATE").
THE HOLDER OF THIS WARRANT AND THE WARRANT SHARES TO BE ISSUED UPON ITS
EXERCISE, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO ENGAGE IN ANY HEDGING
TRANSACTION UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THE HOLDER OF
THIS WARRANT AND THE WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE, BY ITS
ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
WARRANT OR ANY INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THESE LEGENDS.
THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE WARRANT
AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
A-2
3.5 OF THE WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT AGREEMENT,
(III) THIS GLOBAL WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR
CANCELLATION PURSUANT TO SECTION 3.8 OF THE WARRANT AGREEMENT AND (IV)
THIS GLOBAL WARRANT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
A-3
VISKASE COMPANIES, INC.
WARRANT CERTIFICATE
CUSIP No.
No. Warrants
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of [ _____ ] Warrants expiring June 15, 2011
(the "Warrants") to purchase shares of common stock, par value $0.01 (the
"Common Stock"), of Viskase Companies, Inc., a Delaware corporation (the
"Company"). Each Warrant entitles the registered holder upon exercise at any
time from 9:00 a.m. on the Separation Date referred to below until 5:00 p.m. New
York City Time on June 15, 2011 to receive from the Company 8.947 fully paid and
nonassessable shares of Common Stock (the "Warrant Shares") at the initial
exercise price (the "Exercise Price") of $0.01 per share payable upon surrender
of this Warrant Certificate and payment of the Exercise Price at the office or
agency of the Warrant Agent (as hereinafter defined), but only subject to the
conditions set forth herein and in the Warrant Agreement (as hereinafter
defined) referred to on the reverse hereof. The Exercise Price and number of
Warrant Shares issuable upon exercise of the Warrants are subject to adjustment
upon the occurrence of certain events set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time on June
15, 2011. To the extent not exercised by such time, any such Warrant shall
become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
* * * * * * * * *
A-4
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed below.
DATED: June 29, 2004
VISKASE COMPANIES, INC.
By:_____________________________________
Name:
Title:
Countersigned:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Warrant Agent
By:_____________________________________
Authorized Signature
A-5
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring at 5:00 p.m. New York City time on June
15, 2011 entitling the holder on exercise to receive shares of Common Stock, and
are issued or to be issued pursuant to a Warrant Agreement dated as of June 29,
2004 (the "Warrant Agreement"), duly executed and delivered by the Company to
Xxxxx Fargo Bank, N.A., as the initial warrant agent (the "Warrant Agent"),
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Warrants.
Capitalized terms used but not defined herein have the meaning ascribed to such
terms in the Warrant Agreement. A copy of the Warrant Agreement may be obtained
by the holder hereof upon written request to the Company.
Warrants may be exercised at any time on or after the Separation Date and
on or before 5:00 p.m. New York City time on June 15, 2011. In order to exercise
all or any of the Warrants represented by this Warrant Certificate, the holder
must deliver to the Warrant Agent at its corporate trust office set forth in
Section 15 of the Warrant Agreement this Warrant Certificate and the form of
election to purchase on the reverse hereof duly completed and signed, which
signature shall be medallion guaranteed by an institution which is a member of a
Securities Transfer Association recognized signature guarantee program, and upon
payment to the Warrant Agent for the account of the Company of the Exercise
Price, for the number of Warrant Shares in respect of which such Warrants are
then exercised. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted; provided that no adjustment may be made that reduces
the Exercise Price below the par value of the Common Stock. If the Exercise
Price is adjusted, the Warrant Agreement provides that the number of shares of
Common Stock issuable upon the exercise of each Warrant shall be adjusted. No
fractions of a share of Common Stock will be issued upon the exercise of any
Warrant, but the Company will pay the cash value thereof determined as provided
in the Warrant Agreement.
The Company has agreed pursuant to an Equity Registration Rights Agreement
dated as of June 29, 2004 by and among the Company and the Initial Purchaser
(the "Equity Registration Rights Agreement") to, within 180 days of the Closing
Date, use reasonable best efforts to file a shelf registration statement on an
appropriate form under the Securities Act covering the resale of the Warrant
Shares. The Company will use reasonable best efforts to cause such registration
statement to become effective within 270 days of the Closing Date. The Company
will use its reasonable best efforts to keep such registration statement
continuously effective, subject to certain exceptions, under the Securities Act
in order to permit the resale of the Warrant Shares by the holders thereof for
the earlier of (i) two years or (ii) until such time as all registrable
securities have been sold pursuant to such registration statement. The Company
shall use its reasonable best efforts to keep such shelf registration statement
continuously effective under the Securities Act until at least the earlier of
(i) an aggregate of 180 days after the effective date
A-6
thereof or (ii) the consummation of the distribution by the holders of all of
the Warrant Shares covered thereby. In addition, pursuant to the Equity
Registration Rights Agreement, subject to certain limitations, the Company has
agreed to provide the holders certain "piggyback" registration rights if at any
time after the Closing Date the Company proposes to file a registration
statement with respect to an offering of its Common stock.
Warrant Certificates, when surrendered at the corporate trust office of
the Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in the
manner and subject to the limitations provided in the Warrant Agreement, but
without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the corporate trust office of the Warrant Agent a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other governmental
charge imposed in connection therewith.
Each holder, by its acceptance of this Warrant, agrees to be bound by the
terms of the Warrant Agreement and the Equity Registration Rights Agreement, and
all such replacements thereof, and each holder hereby authorizes the Warrant
Agent to bind the holders to the extent provided in the Warrant Agreement.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
A-7
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive __________ shares of Common
Stock and herewith tenders payment for such shares to the order of Viskase
Companies, Inc., [cash] [Warrants] [Notes] equal [in fair market value] [in
principal amount] to $__________ in accordance with the terms hereof. The
undersigned requests that a certificate for such shares be registered in the
name of _______________, whose address is __________________ and that such
shares be delivered to ___________, whose address is
____________________________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of ______________________, whose address is
____________________, and that such Warrant Certificate be delivered to whose
address is ____________________.
___________________________
Signature
Date:
___________________________
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("Stamp") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, Stamp, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-8
VISKASE COMPANIES, INC.
COUNTERSIGNATURE ORDER
June 29, 2004
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Re: 90,000 WARRANTS TO PURCHASE COMMON STOCK
Ladies and Gentlemen:
Pursuant to Section 3.2 of the Warrant Agreement dated as the date
hereof (the "Indenture"), among Viskase Companies, Inc., a Delaware corporation
(the "Company"), and Xxxxx Fargo Bank, N.A., as warrant agent (the "Warrant
Agent"), relating to the Company's 90,000 Warrants (as defined in the Warrant
Agreement) to purchase its Common Stock (as defined in the Warrant Agreement),
you are hereby directed (i) to countersign on June 29, 2004, in the manner
provided in the Warrant Agreement, the Warrants, heretofore duly executed by a
proper officer of the Company and delivered to you as provided in the Warrant
Agreement, (ii) to deliver such countersigned Warrants in the denominations and
registered in the names heretofore requested by Xxxxxxxxx & Company, Inc. and
(iii) to hold the certificates representing the Warrants, as custodian for The
Depository Trust Company.
Very truly yours,
VISKASE COMPANIES, INC.
By:___________________________________
Name:
Title:
A-9
WARRANT AGENT CERTIFICATE OF AUTHENTICATION
This is one of the Warrants referred to in the within-mentioned
Warrant Agreement.
XXXXX FARGO BANK, N.A.,
as Warrant Agent
Dated: ______, 2004 By: _______________________________
Authorized Signatory
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
Sixth St. and Marquette Ave.
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services
Re: Warrants
Reference is hereby made to the Warrant Agreement, dated as of June 29,
2004 (the "Warrant Agreement"), between Viskase Companies, Inc., as issuer (the
"Company"), and Xxxxx Fargo Bank, National Association, as warrant agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Warrant Agreement.
___________________, (the "Transferor") owns and proposes to transfer the
___________ Warrant[s] or interest in such Warrant[s] specified in Annex A
hereto (the "Transfer"), to ________________________ (the "Transferee"), as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee Will Take Delivery of a Beneficial Interest in
the 000X Xxxxxx Xxxxxxx or a Definitive Warrant Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Warrant is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Warrant for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Warrant
and/or the Definitive Warrant and in the Warrant Agreement and the Securities
Act.
2. [ ] Check if Transferee Will Take Delivery of a Beneficial Interest in
the Regulation S Global Warrant or a Definitive Warrant Pursuant to Regulation
S. The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act
B-1
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Warrant Agreement, the transferred beneficial interest or
Definitive Warrant will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Warrant and/or
the Definitive Warrant and in the Warrant Agreement and the Securities Act.
3. [ ] Check and Complete if Transferee Will Take Delivery of a Beneficial
Interest in the IAI Global Warrant or a Definitive Warrant Pursuant to any
Provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Warrants and Restricted
Definitive Warrants and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of any state of the United States,
and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof or
(c) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Warrant or
Restricted Definitive Warrants and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the Transferee in the form of Exhibit D to the Warrant Agreement and (2)
if the Company requests, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Warrant and/or the Definitive Warrants and in the Warrant Agreement
and the Securities Act.
B-2
4. [ ] Check if Transferee Will Take Delivery of a Beneficial Interest in
an Unrestricted Global Warrant or of an Unrestricted Definitive Warrant.
(a) [ ] Check if Transfer is Pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Warrant Agreement and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Warrant Agreement and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Warrant Agreement, the transferred beneficial interest or Definitive
Warrant will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Global Warrants, on Restricted Definitive Warrants and in the Warrant
Agreement.
(b) [ ] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Warrant Agreement and any applicable blue
sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Warrant Agreement and the
Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Warrant Agreement, the transferred
beneficial interest or Definitive Warrant will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Warrants, on Restricted Definitive
Warrants and in the Warrant Agreement.
(c) [ ] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Warrant Agreement and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on
transfer contained in the Warrant Agreement and the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Warrant Agreement, the transferred beneficial
interest or Definitive Warrant will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Warrants or Restricted Definitive Warrants and in the
Warrant Agreement.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:_____________________________________
B-3
Name:
Title:
Dated: _____________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Warrant, or
(ii) [ ] Regulation S Global Warrant, or
(iii) [ ] IAI Global Warrant, or
(b) [ ] a Restricted Definitive Warrant.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Warrant, or
(ii) [ ] Regulation S Global Warrant, or
(iii) [ ] Unrestricted Global Warrant; or
(iv) [ ] Regulation S Global Warrant; or
(b) [ ] a Restricted Definitive Warrant; or
(c) [ ] an Unrestricted Definitive Warrant,
in accordance with the terms of the Warrant Agreement.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
Sixth St. and Marquette Ave.
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services
Re: Warrants
(CUSIP ____________)
Reference is hereby made to the Warrant Agreement, dated as of June 29,
2004 (the "Warrant Agreement"), between Viskase Companies, Inc., as issuer (the
"Company"), and Xxxxx Fargo Bank, National Association, as warrant agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Warrant Agreement.
__________________________, (the "Owner") owns and proposes to exchange
________________ Warrant[s] or interest in such Warrant[s] specified herein (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
3. Exchange of Restricted Definitive Warrants or Beneficial Interests in a
Restricted Global Warrant for Unrestricted Definitive Warrants or Beneficial
Interests in an Unrestricted Global Warrant.
(a) [ ] Check if Exchange is from Beneficial Interest in a
Restricted Global Warrant to Beneficial Interest in an Unrestricted Global
Warrant. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Warrant for a beneficial interest in an
Unrestricted Global Warrant in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global
Warrants and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Warrant Agreement and the
Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Warrant is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) [ ] Check if Exchange is from Beneficial Interest in a
Restricted Global Warrant to Unrestricted Definitive Warrant. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Warrant for an Unrestricted Definitive
C-1
Warrant, the Owner hereby certifies (i) the Definitive Warrant is being
acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable
to the Restricted Global Warrants and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Warrant Agreement and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
Definitive Warrant is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(c) [ ] Check If Exchange Is from Restricted Definitive Warrant to
Beneficial Interest in an Unrestricted Global Warrant. In connection with
the Owner's Exchange of a Restricted Definitive Warrant for a beneficial
interest in an Unrestricted Global Warrant, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to Restricted Definitive Warrants and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Warrant Agreement and the
Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of
the United States.
(d) [ ] Check if Exchange is from Restricted Definitive Warrant to
Unrestricted Definitive Warrant. In connection with the Owner's Exchange
of a Restricted Definitive Warrant for an Unrestricted Definitive Warrant,
the Owner hereby certifies (i) the Unrestricted Definitive Warrant is
being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Warrants and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Warrant Agreement and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and
(iv) the Unrestricted Definitive Warrant is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
4. Exchange of Restricted Definitive Warrants or Beneficial Interests in
Restricted Global Warrants for Restricted Definitive Warrants or Beneficial
Interests in Restricted Global Warrants.
(a) [ ] Check if Exchange is from Beneficial Interest in a
Restricted Global Warrant to Restricted Definitive Warrant. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Warrant for a Restricted Definitive Warrant in a number equal to
the number of beneficial interests exchanged, the Owner hereby certifies
that the Restricted Definitive Warrant is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Warrant Agreement, the Restricted
Definitive Warrant issued will continue to be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Warrant and in the Warrant Agreement and the
Securities Act.
C-2
(b) [ ] Check if Exchange is from Restricted Definitive Warrant to
Beneficial Interest in a Restricted Global Warrant. In connection with the
Exchange of the Owner's Restricted Definitive Warrant for a beneficial
interest in the [CHECK ONE] [ ] 144A Global Warrant, [ ] Regulation S
Global Warrant, [ ] IAI Global Warrant in a number equal to the number of
beneficial interests exchanged, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Warrants and
pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance with the
terms of the Warrant Agreement, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Warrant and in
the Warrant Agreement and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Date: _______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
Sixth St. and Marquette Ave.
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services
Re: Warrants
Reference is hereby made to the Warrant Agreement, dated as of June 29,
2004 (the "Warrant Agreement"), between Viskase Companies, Inc., as issuer (the
"Company"), and Xxxxx Fargo Bank, National Association, as warrant agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Warrant Agreement.
In connection with our proposed purchase of:
(a) [ ] a beneficial interest in a Global Warrant representing the
right to acquire __________ Warrant Shares, or
(b) [ ] a Definitive Warrant representing the right to acquire
__________ Warrant Shares,
we confirm that:
5. We understand that any subsequent transfer of the Warrants or any
interest therein is subject to certain restrictions and conditions set forth in
the Warrant Agreement and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Warrants or any interest therein except
in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
6. We understand that the offer and sale of the Warrants have not been
registered under the Securities Act, and that the Warrants and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Warrants or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if
requested by the Company,
D-1
an Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing the Definitive Warrant
or beneficial interest in a Global Warrant from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
7. We understand that, on any proposed resale of the Warrants or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Warrants purchased by
us will bear a legend to the foregoing effect.
8. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Warrants, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
9. We are acquiring the Warrants or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
We agree not to engage in any hedging transactions with regard to the
Warrants unless such hedging transactions are in compliance with the Securities
Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: _______________________
D-2
