EXHIBIT 4.19
REMEDYTEMP, INC.
and
_________________, AS WARRANT AGENT
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
DATED AS OF
[------------]
TABLE OF CONTENTS
PAGE
ARTICLE 1 ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES...................................................................... 1
1.1 Issuance of Warrants......................................................................... 1
1.2 Execution and Delivery of Warrant Certificates............................................... 2
1.3 Issuance of Warrant Certificates............................................................. 3
ARTICLE 2 WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS............................................. 3
2.1 Warrant Price................................................................................ 3
2.2 Duration of Warrants......................................................................... 3
2.3 Exercise of Warrants......................................................................... 3
ARTICLE 3 OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES....................... 5
3.1 No Rights as Holders of Warrant Debt Securities Conferred by Warrants or Warrant
Certificates
3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.................................... 5
3.3 Holder of Warrant Certificate May Enforce Rights............................................. 5
3.4 Merger, Sale, Conveyance or Lease............................................................ 5
3.5 Notice to Warrantholders...................................................................... 6
ARTICLE 4 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES................................................ 6
4.1 Exchange and Transfer of Warrant Certificates................................................ 6
4.2 Treatment of Holders of Warrant Certificates................................................. 7
4.3 Cancellation of Warrant Certificates......................................................... 7
ARTICLE 5 CONCERNING THE WARRANT AGENT................................................................. 8
5.1 Warrant Agent................................................................................ 8
5.2 Conditions of Warrant Agent's Obligations.................................................... 8
PAGE
5.3 Resignation, Removal and Appointment of Successors........................................... 9
ARTICLE 6 MISCELLANEOUS................................................................................ 11
6.1 Amendment.................................................................................... 11
6.2 Notices and Demands to the Company and Warrant Agent......................................... 11
6.3 Addresses.................................................................................... 11
6.4 Governing Law................................................................................ 11
6.5 Delivery of Prospectus....................................................................... 11
6.6 Obtaining of Governmental Approvals.......................................................... 11
6.7 Persons Having Rights Under Warrant Agreement................................................ 12
6.8 Headings..................................................................................... 12
6.9 Counterparts................................................................................. 12
6.10 Inspection of Agreement....................................................................... 12
REMEDYTEMP, INC.
Form of Debt Securities Warrant Agreement
DEBT SECURITIES WARRANT AGREEMENT, dated as of ______________ between
REMEDYTEMP, INC., a California corporation (the "Company") and ____________, a
[corporation] [national banking association] organized and existing under the
laws of _____________and having a corporate trust office in ________, as warrant
agent (the "WARRANT AGENT").
WHEREAS, the Company has entered into an indenture dated as of [
_________(the "SENIOR INDENTURE"), with _______________, as trustee (such
trustee, and any successors to such trustee, herein called the "SENIOR
TRUSTEE"), providing for the issuance from time to time of its unsubordinated
debt securities, to be issued in one or more series as provided in the Senior
Indenture (the "DEBT SECURITIES");] [ __________(the "SUBORDINATED INDENTURE"),
with ___________, as trustee (such trustee, and any successors to such trustee,
herein called the "SUBORDINATED TRUSTEE"), providing for the issuance from time
to time of its subordinated debt securities, to be issued in one or more series
as provided in the Subordinated Indenture (the "DEBT SECURITIES");]
WHEREAS, the Company proposes to sell [If Warrants are sold with other
securities -- title of such other Securities being offered (the "OTHER
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 DEBT 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, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged,
exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 ISSUANCE OF WARRANTS. [If Warrants alone -- Upon issuance, each
Warrant Certificate shall evidence one or more Warrants.] [If Other Securities
and Warrants -- Warrant Certificates shall be [initially] issued in connection
with the issuance of the Other 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
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provisions contained herein and therein, to purchase one Warrant Debt
Security. [If Other Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence _____________Warrants for each [$
________________ principal amount] [_______ shares] of Other Securities included
in such unit.].
1.2 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 the date of its
countersignature by the Warrant Agent 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
securities 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 any of its
present or future chief executive officers, presidents, senior vice presidents,
vice presidents, chief financial officers, chief legal officers, treasurers,
assistant treasurers, controllers, assistant controllers, secretaries or
assistant secretaries 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.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the 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
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 Other Securities and Warrants are not immediately detachable -- or upon the
registration of the Other Securities prior to the Detachable Date. Prior to the
Detachable Date, the Company will, or will cause the registrar of the Other
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Other Securities as may be necessary to keep the Warrant
Agent's records up to date].
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1.3 ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates evidencing
the right to purchase Warrant Debt Securities 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 such Warrant
Certificates and shall deliver such Warrant Certificates to or upon the order of
the Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 WARRANT PRICE. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Warrant Agreement and the applicable
Warrant Certificate, entitle the holder thereof, to purchase the principal
amount of Warrant Debt Securities specified in the applicable Warrant
Certificate at an initial exercise price of ________% of the principal amount
thereof [plus accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [plus accrued interest, if any, from the most
recent date from which interest shall have been paid on the Warrant Debt
Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original issue
discount ($ _______ for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a _______% annual rate, computed on a[n] [semi-] annual
basis [using a 360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this Agreement as the
"WARRANT PRICE."
2.2 DURATION OF WARRANTS. Each Warrant may be exercised in whole or in
part at any time, as specified herein, on or after [the date thereof]
[__________] and at or before [______] p.m., [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 [__________] p.m., [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.
2.3 EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.2, the Warrants
may be exercised to purchase a whole number of Warrant Debt Securities
in registered form 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, [in cash or by certified
check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] the Warrant Price for
each Warrant Debt Security with respect to which a Warrant is being
exercised to the Warrant Agent at its corporate trust office, provided
that such exercise is subject to receipt within five business days of
such payment by the Warrant Agent of the Warrant Certificate with the
form of election to purchase Warrant Debt 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
Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised; provided,
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however, that if, at the date of receipt of such Warrant Certificates
and payment in full of the Warrant Price, the transfer books for the
Warrant Debt Securities purchasable upon the exercise of such Warrants
shall be closed, no such receipt of such Warrant Certificates and no
such payment of such Warrant Price shall be effective to constitute the
person so designated to be named as the holder of record of such
Warrant Debt Securities on such date, but shall be effective to
constitute such person as the holder of record of such Warrant Debt
Securities for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Warrant Debt
Securities purchasable upon the exercise of such Warrants shall be
opened, and the certificates for the Warrant Debt Securities in respect
of which such Warrants are then exercised shall be issuable as of the
date on such next succeeding day on which the transfer books shall next
be opened, and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Debt Securities. 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 and shall advise
the Company by telephone at the end of each day on which a payment for
the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice
to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrant Debt
Securities with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of
Warrant Certificates evidencing the balance, if any, of the Warrants
for the remaining Warrant Debt Securities after such exercise, and (iv)
such other information as the Company or the [Senior] [Subordinated]
Trustee shall reasonably require.
(c) As soon 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 Debt 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 were exercised,
the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Debt Securities 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 Debt
Securities, and in the event that any such transfer is involved, the
Company shall not be required to issue or deliver any Warrant Debt
Securities until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or
other charge is due.
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ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
3.1 NO RIGHTS AS HOLDERS OF WARRANT DEBT SECURITIES 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 Debt Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any, on the Warrant
Debt Securities or to enforce any of the covenants in the Indenture.
3.2 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/or indemnity reasonably satisfactory to the Warrant
Agent and the Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for cancellation, then, in
the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of Warrant Debt
Securities. Upon the issuance of any new Warrant Certificate under this Section
3.2, 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 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 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.
3.3 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the [Senior] [Subordinated] Trustee,
the holder of any Warrant Debt Securities or the holder of any other Warrant
Certificate, may, in such holder's own behalf and for such holder's own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such holder's right
to exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificates and in this Agreement.
3.4 MERGER, SALE, CONVEYANCE OR LEASE. In case of (a) any share
exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in
which the Company is the acquiring or surviving corporation) or (b) the sale,
exchange, lease, transfer or other disposition
5
of all or substantially all of the properties and assets of the Company as an
entirety (in any such case, a
"REORGANIZATION EVENT"), then, as a condition of such Reorganization
Event, lawful provisions shall be made, and duly executed documents evidencing
the same from the Company's successor shall be delivered to the holders of the
Warrants, so that such successor shall succeed to and be substituted for the
Company, and assume all the Company's obligations under, this Agreement and the
Warrants. 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 entity 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 heretofore shall not have been signed by the
Company, and may execute and deliver securities in its own name, in fulfillment
of its obligations to deliver Warrant Debt 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 Reorganization Event, 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 Reorganization Event complies with the
provisions of this Section 3.4.
3.5 NOTICE TO WARRANTHOLDERS. In case the Company shall (a) effect any
Reorganization Event or (b) make any distribution on or in respect of the [title
of Warrant Debt Securities] in connection with the dissolution, liquidation or
winding up of the Company, then the Company shall mail to each holder of
Warrants at such holder's address as it shall appear on the books of the Warrant
Agent, at least ten days prior to the applicable date hereinafter specified, a
notice stating the date on which such Reorganization Event, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of [title of Warrant Debt Securities] of
record shall be entitled to exchange their shares of [title of Warrant Debt
Securities] for securities or other property deliverable upon such
Reorganization Event, dissolution, liquidation or winding up. No failure to mail
such notice nor any defect therein or in the mailing thereof shall affect any
such transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [If Other Securities
with Warrants which are immediately detachable -- Upon] [If Other 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 Other 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 Other Security. Prior to any Detachable Date, each transfer of the Other
Security shall operate also to transfer the related Warrant Certificates. After
the Detachable Date, upon] surrender at the corporate trust office of the
Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged for
Warrant Certificates in other
6
denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence
Warrants for the same aggregate principal amount of Warrant Debt Securities as
the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its
corporate trust office, 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 Agent at its corporate trust office 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 Warrant for a fraction of a Warrant Debt Security or a
number of Warrants for a whole number of Warrant Debt Securities and a fraction
of a Warrant Debt Security. 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.
4.2 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [If Other 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
Other Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and 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 to due
presentment of a Warrant Certificate for registration of transfer, the] [The]
Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3 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 canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
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ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 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 power 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 power and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
5.2 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable 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, including 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.
(c) COUNSEL. The Warrant Agent may consult with counsel satisfactory to
it, which may include counsel for the Company, 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 omitted 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
8
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Warrant Securities or other obligations
of the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in this Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting as [Senior] [Subordinated] Trustee under the [Senior] [Subordinated]
Indenture.
(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 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 6.2 hereof, to make any demand upon
the Company.
5.3 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSORS.
(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 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
9
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 5.2(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal
of the Warrant Agent.
(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,
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provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1 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.
6.2 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.
6.3 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 RemedyTemp, Inc.,
000 Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Investor Relations (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company).
6.4 GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the laws of the
State of [New York].
6.5 DELIVERY OF PROSPECTUS. The Company shall furnish to the Warrant
Agent sufficient copies of a prospectus meeting the requirements of the
Securities Act of 1933, as amended, relating to the Warrant Debt 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 Debt 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.
6.6 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 act filings under United States Federal and state laws (including
without limitation a registration statement in respect of the Warrants and
Warrant Debt Securities under the Securities Act of 1933, as amended), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Debt Securities issued upon exercise of the Warrants,
the
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issuance, sale, transfer and delivery of the Warrants or upon the expiration of
the period during which the Warrants are exercisable.
6.7 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.
6.8 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.
6.9 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.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
REMEDYTEMP, INC.
By
---------------------------------
Its
--------------------------------
Attest:
, as
------------------------------------- --------------------------------
Warrant Agent
By
---------------------------------
Its
--------------------------------
[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form if Warrants are attached to Prior to ________, this Warrant
Other Securities and are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a
[Title of Other Security].]
[Form of Legend if Warrants are not Prior to _________, Warrants
exercisable. immediately evidenced by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [__________] P.M., [CITY] TIME, ON ,
REMEDYTEMP, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
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 Warrants are attached to Other Securities and 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 [________] p.m., [City] time, on __________ and] on or before
[_______] p.m., [City] time, on _______, $ ____ principal amount of [Title of
Warrant Debt Securities] (the "WARRANT DEBT SECURITIES"), of RemedyTemp, Inc.
(the "COMPANY"), issued or to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from __________, through and
including _______, each Warrant shall entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase the principal amount of Warrant Debt
Securities stated in the Warrant Certificate at the warrant price (the "WARRANT
PRICE") of _______% of the principal amount thereof [plus accrued amortization,
if any, of the original issue discount of the Warrant Debt Securities] [plus
accrued interest, if any, from the most recent date from which interest shall
have been paid on the Warrant Debt Securities or, if no interest shall have been
paid on the Warrant Debt Securities, from the date of their original issuance].
[The original issue discount ($ ________ for each $1,000 principal amount of
Warrant Debt
1
Securities) will be amortized at a _______% annual rate, computed on a[n]
[semi-]annual basis [using a 360-day year consisting of twelve 30-day months].
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, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price for each Warrant Debt Security with respect
to which this Warrant is 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"), which is, on the date
hereof, at the address specified on the reverse hereof, and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "HOLDER" as used herein shall mean [If Warrants are attached
to Other Securities and are not immediately detachable -- , prior to _________,
____(the "DETACHABLE DATE"), the registered owner of the Company's [title of
Other Securities] to which this Warrant Certificate was 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 of the Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000 or any
integral multiple thereof in registered form. 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 Warrants for the
aggregate principal amount of Warrant Debt Securities remaining unexercised.
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.
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be issued under
and in accordance with an Indenture, [dated as of _________, ____ (the "SENIOR
INDENTURE"), between the Company and ________ , as trustee (such trustee, and
any successors to such trustee, the "SENIOR TRUSTEE")] [dated as of _________,
____, (the "SUBORDINATED INDENTURE"), between the Company and __________, as
trustee (such trustee, and any successors to such trustee, the "SUBORDINATED
Trustee")] and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the [Senior]
[Subordinated] Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee.
[If Warrants are attached to Other Securities and are not immediately
detachable -- Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together
2
with the [Title of Other Securities] (the "OTHER 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 Other
Security. Additionally, on or prior to the Detachable Date, each transfer of
such Other Security on the register of the Other Securities shall operate also
to transfer this Warrant Certificate. After such date, transfer of this] [If
Warrants are attached to Other Securities and 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 by
the registered owner or such owner's assigns, in the manner and subject to the
limitations provided in the Warrant Agreement.
[If Other Securities with Warrants which are not immediately
detachable-Except as provided in the immediately preceding paragraph, after][If
Other 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 for Warrant
Certificates representing Warrants for the same aggregate principal amount of
Warrant Debt Securities.
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: REMEDYTEMP, INC.
-------------------------
By
-----------------------------------
Its
----------------------------------
Attest:
--------------------------------
Countersigned:
--------------------------------
As Warrant Agent
By:
----------------------------
Authorized Signature
3
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby for Warrant Debt Securities
(as hereinafter defined), the Holder must pay, in lawful money of the United
States of America, [in cash or by certified check or official bank check in New
York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: ___________, which payment 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 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 above.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise ___________
Warrants, represented by this Warrant Certificate, to purchase $ ________
principal amount of the [Title of Warrant Debt Securities] (the "WARRANT DEBT
SECURITIES") of RemedyTemp, Inc. and represents that he has tendered payment for
such Warrant Debt Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House
funds] [by bank wire transfer in immediately available funds], to the order of
RemedyTemp, Inc., 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 Debt 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 the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the aggregate principal amount of Warrant Debt
Securities remaining unexercised be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
Dated: Name
---------------------------- -----------------------------------
(Please Print)
Address
--------------------------------
----------------------------------------
----------------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
4
------------------------------------ -------------------------------------
Signature Guaranteed 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)
This Warrant may be exercised at the following addresses:
By hand at
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
By mail at
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
[Instructions as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised -- complete as appropriate.]
5
ASSIGNMENT
[Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto:
-------------------------------
-------------------------------
------------------------------- --------------------------------------------
(Please print name and Please insert Social Security or other
address including zip code) identifying number
the right represented by the within Warrant to purchase $ ___________
aggregate principal amount of [Title of Warrant Debt Securities] of RemedyTemp,
Inc. to which the within Warrant relates and appoints ___________ attorney to
transfer such right 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
the Warrant)
Signature Guaranteed
--------------------------------
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