Exhibit 4.6
G&K SERVICES, INC.
Form of Debt Securities Warrant Agreement
THIS WARRANT AGREEMENT dated as of ________, ___ between G&K
Services, Inc., a Minnesota corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), and __________ as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"Indenture") dated as of [_______________] between the Company and [____________
______], as trustee (the "Trustee"), providing for the issuance from time to
time of its unsecured debentures, notes or other evidences of indebtedness (the
"Debt Securities"), to be issued in one or more series as provided in the
Indenture; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Common Stock -- [title of Debt Securities or Common
Stock being offered] (the "Offered Securities") with] warrant certificates
evidencing one or more warrants (the "Warrants" or individually a "Warrant")
representing the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
Section 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after __________ (the "Detachable Date")] [and shall not be
separately transferable] and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase a Warrant Security in
the principal amount of _________. [If Offered Securities and Warrants --
Warrant Certificates shall be initially issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
______ Warrants for each [_______ principal amount] [______ shares] of Offered
Securities included in such unit.]
Section 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated ________
and may have such letters, numbers, or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of the
Company by the Chairman of the Board, the Chief Executive Officer, President or
a Vice President of the Company and by the Treasurer or one of the Assistant
Treasurers or the Secretary or one of the Assistant Secretaries of the Company
under its corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
1
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
-- or upon the register of the Offered Securities prior to the Detachable Date.
[Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
Section 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding _______ aggregate principal amount of Warrant Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to ______
principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.03(c).
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ___________], without charge to the holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates the Company
shall execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
Section 2.01. Warrant Price. During the period from _________,
through and including ___________, the exercise price of each Warrant will be
_____ plus [accrued amortization of the original issue discount] [accrued
interest] from __________. During the period from __________, through and
including __________, the exercise price of each Warrant will be ______ plus
[accrued amortization of the original issue discount] [accrued interest] from
___________. [In each case, the original issue discount will be amortized at a %
annual rate, computed on an annual basis using the "interest" method and using a
360-day year consisting of twelve 30-day months]. Such purchase price of Warrant
Securities is referred to in this Agreement as the "Warrant Price". [The
original issue discount for each ______ principal amount of Warrant Securities
is ________.]
2
Section 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_________] and at or before 3:30 p.m., New York City time, on ________
[or such later date as the Company may designate, by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth
in the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant
not exercised at or before 3:30 p.m., New York City time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
Section 2.03. Exercise of Warrants. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [applicable currency,] [in cash or by certified check or official bank
check or by, in each case,] [by bank wire transfer] in immediately available
funds the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at ____________], provided that such exercise is
subject to receipt within five business days of such [payment] [wire transfer]
by the Warrant Agent of the Warrant Certificate with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificates as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it [if non-dollar denominated funds -- or in such other account
designated by the Company] and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or such Trustee
shall reasonably require.
(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture.
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
3
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the mutilated, lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Securities or the holder of any other Warrant Certificate,
may, in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
Section 3.04. Merger, Consolidation, Conveyance, Transfer or
Lease. If at any time there shall be a merger, consolidation, conveyance,
transfer or lease of assets subject to Section 801 of the Indenture, then in any
such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
such Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name pursuant
to such Indenture, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, conveyance,
transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease complies with the provisions of this Section 3.04 and such
Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security [on the register of the
Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable date upon] surrender at the corporate trust
office of the Warrant Agent [or __________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at _____________],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
4
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificate surrendered for such exchange or registration of transfer.
Section 4.02. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and
prior] [Prior] to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
holder of a Warrant Certificate as the owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
Section 5.01. Warrant Agent. The Company hereby appoints _____
___________ as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth; and __________ hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred without negligence, bad faith or willful misconduct by the Warrant
Agent in connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
5
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of Holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement
shall be deemed to prevent the Warrant Agent from acting as Trustee under any of
the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or in
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion, assured to
it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of any of the Warrant
Certificates or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility in
case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
Section 5.03. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent hereunder
until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the
intended date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company authorized under
the laws of the jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent.
6
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not materially adversely affect the interests of the holders
of the Warrant Certificates. The parties hereto may also modify or amend this
Agreement and the terms of the Warrant Certificates with the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrant Certificates affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Warrant Certificates the
consent of the holders of which is required for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the Warrant Certificates, may be made without the consent of each holder
affected thereby.
Section 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 6.03. Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to _________
____________, Attention: __________________ and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to G&K Services, Inc., 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxx
00000, Attention: Chief Financial Officer (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
7
Section 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
Section 6.05. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
Section 6.06. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
Section 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.09. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
Section 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
8
IN WITNESS WHEREOF G&K Services, Inc. and _______________have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
G&K SERVICES, INC.
By _____________________________________
Its _________________________________
Attest:
___________________________________
[WARRANT AGENT]
By _____________________________________
Its _________________________________
Attest:
___________________________________
9
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to _________________ this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable attached to a [Title of Offered
Securities].]
[Form of Legend if Prior to ____________, Warrants
Warrants are not evidenced by this Warrant
immediately detachable Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
G&K SERVICES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON __________
No. ____ __________ Warrants
This certifies that _____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 3:30 p.m., New York City time, on ________ and] on or before
3:30 p.m., New York City time, on _________, ______ principal amount of [Title
of Warrant Securities] (the "Warrant Securities"), of G&K Services, Inc. (the
"Company"), issued and to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from __________, through and
including __________ the exercise price of each Warrant will be _____ plus
[accrued amortization of the original issue discount] [accrued interest] from
__________; during the period from ___________, through and including , the
exercise price of each Warrant will be _______ plus [accrued amortization of the
original issue discount] [accrued interest] from __________; [in each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each _____ principal amount of Warrant Securities is __________.] The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof, and by paying in full [in lawful money of the United
States of America] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in immediately available funds, the Warrant Price for each Warrant
exercised to the Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent"), [or ___________], which is, on the date
hereof, at the address on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
__________ (the "Detachable Date"), the registered owner of the Company's [title
of Offered Securities] to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of ______ and any integral multiples thereof. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
A-1
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ____________].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an indenture (the "Indenture"), dated as of
_____________ between the Company and ______________, as trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are on
file at the corporate trust office of the Trustee [and at ____________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, transfer of this] [if Offered Securities
with Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ___________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or _________] for
Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
G&K SERVICES, INC.
By:___________________________________
Authorized Officer
Attest:
______________________________
Countersigned:
______________________________
As Warrant Agent
By:___________________________
Authorized Signature
A-2
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ________ [or ___________], which [payment] [wire transfer]
must specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below,
including any applicable certifications if the Warrant Securities are issuable
in bearer form, and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ______
Warrants, evidenced by this Warrant Certificate, to purchase _____ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of G&K
Services, Inc. and represents that he has tendered payment for such Warrant
Securities in [Dollars] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of [____________________],
c/o [insert name and address of Warrant Agent], in the amount of _______ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated: ______________________ Name ___________________________________
______________________________ Address ________________________________
(Insert Social Security or
Other Identifying Number
of Holder) ________________________________
A-3
Signature ___________________________
Signature Guaranteed (Signature must conform in
all respects to name of holder
_______________________________ as specified on face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock Exchange)]
The warrants evidenced hereby may be exercised at the
following address:
By hand at ______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
By mail at ______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificate evidencing unexercised Warrants --
complete as appropriate.]
A-4
Assignment
Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby
FOR VALUE RECEIVED ______________________________________ hereby sells,
assigns and transfers unto
__________________________ ______________________________ (Please print name)
(Please insert social
security or other
identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Warrant Agent with full
power of substitution in the premises.
Dated:
___________________________________________
Signature
(Signature
must conform in all respects to name of
holder as specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New York,
Midwest or Pacific Stock Exchange)
Signature Guaranteed
______________________________
A-5
