EXHIBIT 4(eeee)
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XXXXXXX XXXXX & CO., INC.
and
_____________________,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ____________, ____
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Table of Contents
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Page
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ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants; Book-Entry Procedures;
Successor Depositary........................... 2
SECTION 1.02. Form, Execution and Delivery of Global
Warrant Certificate............................ 3
SECTION 1.03 Global Warrant Certificate .................... 4
SECTION 1.04 Registration of Transfers and Exchanges........ 4
SECTION 1.05 Warrant Certificates........................... 5
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price.................................. 8
SECTION 2.02. Duration of Warrants........................... 9
SECTION 2.03. Exercise of Warrants........................... 9
SECTION 2.04. Return of Global Warrant Certificate........... 12
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholders
Conferred by Warrants or Warrant
Certificates................................... 12
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed
Warrant Certificates........................... 12
SECTION 3.03. Holder of Warrant Certificate May
Enforce Rights................................. 13
ARTICLE IV.
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants....................... 13
SECTION 4.02. Treatment of Holders........................... 13
SECTION 4.03. Termination of Warrants........................ 13
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ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................. 14
SECTION 5.02. Conditions of Warrant Agent's
Obligations. .................................. 14
SECTION 5.03. Resignation and Appointment of
Successor. .................................... 16
SECTION 5.04. Payment of Taxes............................... 17
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Amendment...................................... 17
SECTION 6.02. Notices and Demands to the Company and
Warrant Agent.................................. 18
SECTION 6.03. Addresses...................................... 18
SECTION 6.04. Governing Law. ............................... 18
SECTION 6.05. Delivery of Prospectus......................... 18
SECTION 6.06. Obtaining of Governmental Approvals............ 19
SECTION 6.07. Persons Having Rights under Warrant Agreement.. 19
SECTION 6.08. Headings....................................... 19
SECTION 6.09. Counterparts................................... 19
SECTION 6.10. Inspection of Agreement........................ 19
[SECTION 6.11. Adjustment of Number of [Preferred
Stock] [Shares of Common Stock];
Notices........................................ 20
SECTION 6.12. Fractional Shares.............................. 27
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THIS WARRANT AGREEMENT dated as of _____________, ____ between Xxxxxxx
Xxxxx & Co., Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company") and _____________, a
______________ organized and existing under the laws of _________________, as
Warrant Agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time, either
jointly or separately, certain of its (i) preferred stock, par value $1.00 per
share (the "Preferred Stock"), and/or (ii) common stock, par value $1.33 per
share (together with the preferred share purchase rights issued pursuant to the
Amended and Restated Rights Agreement dated as of December 2, 1997 between the
Company and The Chase Manhattan Bank, together the "Common Stock"), and/or,
(iii) warrants (the "Warrants") to purchase Preferred Stock or Common Stock in
one or more offerings on terms determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No. 333- ),
including a prospectus, relating to the securities described above and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"); and
[If Preferred Stock - WHEREAS, the Company has established a series of
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Preferred Stock in accordance with the terms of the Certificate of Vote of
Directors establishing a Series of a Class of Stock relating to such Preferred
Stock (the "Certificate of Vote"); and]
WHEREAS, the Company proposes to sell warrant certificates evidencing one
or more warrants (the "Warrants" or, individually, a "Warrant") representing the
right to purchase the Preferred Stock] [Common Stock] 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, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Warrant 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 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; Book-Entry Procedures; Successor
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Depositary. (a) The Warrants shall initially be represented by a single
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certificate (the "Global Warrant Certificate"). Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase __ shares of Warrant Securities. Beneficial owners of
interests in the Global Warrant Certificate shall not be entitled to receive
definitive Warrants evidencing the Warrants; provided, however, that if (i) the
Depositary (as defined below) is at any time unwilling or unable to continue as
Depositary for the Warrants and a successor Depositary is not appointed by the
Company within 90 days, or (ii) the Company shall be adjudged bankrupt or
insolvent or make an assignment for the benefit of its creditors or institute
proceedings to be adjudicated bankrupt or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under applicable law, or shall consent to the filing of
any such petition, or shall consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or all or any substantial part of its property shall be
appointed, or if any public officer shall have taken charge or control of the
Company or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, the Company will issue Warrants in definitive form
in exchange for the Global Warrant Certificate. In addition, the Company may at
any time determine not to have the Warrants represented by a Global Warrant
Certificate and, in such event, will issue Warrants in definitive form in
exchange for the Global Warrant Certificate. In either instance, and in
accordance with the provisions of this Agreement, each beneficial owner of an
interest in the Global Warrant Certificate will be entitled to have a number of
Warrants equivalent to such owner's beneficial interest in the Global Warrant
Certificate registered in its name and will be entitled to physical delivery of
such Warrants in definitive form by the Depositary Participant (as defined
herein) through which such owner's beneficial interest is reflected. The
provisions of Section 1.05 shall apply only if, and when, Warrants in definitive
form ("Warrant Certificates") are issued hereunder. Unless the context shall
otherwise require, all
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references in this Agreement to the Global Warrant Certificate shall include the
Warrant Certificates in the event that Warrant Certificates are issued.
The Global Warrant Certificate shall be deposited with the Depositary or
its agent (the term "Depositary", as used
herein, initially refers to The Depositary Trust Company and
includes any successor depository selected by the Company as
provided in Section 1.01(c)) for credit to the accounts of the
Depositary Participants as shown on the records of the Depositary
from time to time.
(b) The Global Warrant Certificate will initially be registered in the name
of a nominee of the Depositary selected by the Company for the Warrants. The
Warrant holdings of Depositary Participants will be recorded on the books of the
Depositary. The holdings of customers of Depositary Participants will be
reflected on the books and records of such Depositary Participants and will not
be known to the Warrant Agent, the Company or to the Depositary. "Depositary
Participants" include securities brokers and dealers, banks and trust companies,
clearing organizations and certain other organizations which are participants in
the Depositary's system. The Global Warrant Certificate will be held by the
Depositary or its agent. In this Agreement, "Holder" or "Warrantholder" means
the person in whose name a Warrant Certificate (including a Global Warrant
Certificate) is registered on the register maintained for such purpose by the
Warrant Agent. The Depositary or its nominee will be the sole Holder of a
Global Warrant Certificate.
(c) The Company may from time to time select a new entity to act as
Depositary and, if such selection is made, the Company shall promptly give the
Warrant Agent notice to such effect identifying the new Depositary, and the
Global Warrant Certificate shall be delivered to the Warrant Agent and shall be
transferred to the new Depositary as provided in Section 1.04 as promptly as
possible. Appropriate changes may be made in the Global Warrant Certificate and
the related notices delivered in connection with an exercise of Warrants to
reflect the selection of the new Depositary.
SECTION 1.02. Form, Execution and Delivery of Global Warrant Certificate.
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The Global Warrant Certificate shall be in registered form and substantially in
the form set forth in Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement. The Global Warrant Certificate may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as a duly authorized officer the
Company
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executing the same may approve (execution thereof to be conclusive evidence of
such approval) and 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 of the Depositary, or to conform to usage. The
Global Warrant Certificate shall be signed on behalf of the Company by the
President, the Treasurer or Comptroller or any Vice President of the Company
(each, an "Authorized Officer"), manually or by facsimile signature, and a
facsimile of the seal of the Company shall be impressed, imprinted or engraved
thereon, which shall be attested by the Secretary or any Assistant Secretary of
the Company, either manually or by facsimile signature. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of the Global Warrant
Certificate that has been duly authenticated and delivered by the Warrant Agent.
In case any Authorized Officer who shall have signed the Global Warrant
Certificate on behalf of the Company either manually or by facsimile signature
shall cease to be such officer before the Global Warrant Certificate so signed
shall have been authenticated and delivered by the Warrant Agent to the Company
or delivered by the Company, such Global Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Global Warrant
Certificate had not ceased to be such officer; and the Global Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Global Warrant Certificate, shall be the
proper Authorized Officers, although at the date of the execution of this
Agreement any such person was not such officer.
SECTION 1.03 Global Warrant Certificate . A Global
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Warrant Certificate relating to [ ] Warrants originally issued may be
executed by the Company and delivered to the Warrant Agent on or after the date
of execution of this Agreement. The Warrant Agent is authorized, upon receipt
of the Global Warrant Certificate from the Company, duly executed on behalf of
the Company, to authenticate such Global Warrant Certificate. The Global
Warrant Certificate shall be manually authenticated and dated the date of its
authentication by an authorized signatory of the Warrant Agent and shall not be
valid for any purpose unless so authenticated. The Warrant Agent shall
authenticate and deliver the Global Warrant Certificate to or upon the written
order of the Company.
SECTION 1.04 Registration of Transfers and Exchanges. Except as otherwise
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provided herein or in the Global Warrant
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Certificate, the Warrant Agent shall from time to time register the transfer of
the Global Warrant Certificate in the records of the Warrant Agent only to the
Depositary, to a nominee of the Depositary, to a successor Depositary, or to a
nominee of a successor Depositary, upon surrender of such Global Warrant
Certificate, duly endorsed and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent and the
Company, duly signed by the registered Holder thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, the Company shall execute and the Warrant Agent shall
authenticate and deliver in the name of the designated transferee a new Global
Warrant Certificate of like tenor and evidencing a like number of Warrants as
evidenced by the Global Warrant Certificate at the time of such registration of
transfer.
The Global Warrant Certificate may be transferred as provided above at the
option of the Holder thereof when surrendered to the Warrant Agent at its office
or agency maintained for the purpose of transferring any of the Warrants, which
shall be south of Xxxxxxxx Street in the Borough of Manhattan, The City of New
York (the "Warrant Agent Office"), and which is, on the date of this Agreement,
[ ] Attention: Corporate Trust Services, or at the office
of any successor Warrant Agent as provided herein, in exchange for another
Global Warrant Certificate of like tenor and representing a like number of
Warrants.
SECTION 1.05 Warrant Certificates. Any Warrant Certificates issued in
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accordance with Section 1.01(a) shall be in registered form substantially in the
form set forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are necessary or desirable for individual
Warrant Certificates, and may represent any integral multiple of Warrants. The
Warrant Certificates may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Authorized Officers executing the same may
approve (execution thereof to be conclusive evidence of such approval) and 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 of the Depositary, or to conform to usage. Warrant Certificates shall be
signed by an Authorized Officer upon the same conditions, in substantially the
same manner and with the same effect as the Global Warrant Certificate.
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Each Warrant Certificate, when so signed by an Authorized Officer, shall be
delivered to the Warrant Agent, which shall manually authenticate and deliver
the same to or upon the written order of the Company. Each Warrant Certificate
shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of a duly authorized signatory 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 authenticated has been duly issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant
Certificate shall be registered in such names and addresses (including tax
identification numbers) and in such denominations as shall be requested in
writing by the Depositary or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in The
City of New York a register (the register maintained in such office and in any
other office or agency maintained by or on behalf of the Company for such
purpose being herein sometimes collectively referred to as the "Warrant
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Warrant Certificates and the
transfer of Warrant Certificates. The Warrant Agent is hereby appointed
"Warrant Registrar" for the purpose of registering Warrant Certificates and the
transfer of Warrant Certificates as herein provided.
Upon surrender for registration of a transfer of a Warrant Certificate at
an office or agency of the Company maintained for such purpose, the Company
shall execute, and the Warrant Agent shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Warrant
Certificates of any authorized denominations and representing Warrants of a like
aggregate number.
At the option of the Holder, Warrant Certificates may be exchanged for
other Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number, upon surrender of the Warrant Certificates
to be exchanged at such office or agency. Whenever any Warrant Certificates are
so surrendered for exchange, the Manager on
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behalf of the Company shall execute, and the Warrant Agent shall authenticate
and deliver, the Warrant Certificates which the Holder making the exchange is
entitled to receive.
All Warrant Certificates issued upon any registration of a transfer or an
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations of the Company, and entitled to the same
benefits under this Warrant Agreement, as the Warrant Certificates surrendered
upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for registration of a
transfer or for an exchange shall (if so required by the Company or the Warrant
Agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Warrant Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of a transfer or an
exchange of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of a transfer or an exchange of Warrant
Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent,
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
If there shall be delivered by a Holder to the Company and the Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Warrant Certificate, (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless and (iii)
funds sufficient to cover any cost or expense to the Company (including any fees
charged by the Warrant Agent) relating to the issuance of a new Warrant
Certificate, 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 upon its request the Warrant Agent shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate,
a new Warrant Certificate of like tenor representing Warrants of a like number
and bearing a number not contemporaneously outstanding.
Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu
of any destroyed, lost or stolen Warrant
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Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Warrant Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
The provisions of this Section 1.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the Holder of such Warrant Certificate as the owner of
such Warrant Certificate for all purposes hereunder whatsoever, whether or not
such Warrant Certificate has been transferred and neither the Company, the
Warrant Agent nor any agent of the Company or the Warrant Agent shall be
affected by notice to the contrary.
All Warrant Certificates surrendered for registration of transfer or
exchange shall, if surrendered to any person other than the Warrant Agent, be
delivered to the Warrant Agent and shall be promptly cancelled by it. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant Certificates
so delivered shall be promptly cancelled by the Warrant Agent. No Warrant
Certificates shall be authenticated in lieu of or in exchange for any Warrant
Certificates cancelled as provided in this Section 1.05, except as expressly
permitted by this Warrant Agreement. All cancelled Warrant Certificates held by
the Warrant Agent shall be disposed of as directed by the Company.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. [On__________, ____] the exercise price of
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each Warrant is [$]___________. [During the period from __________, ____
through and including _________, ____, the exercise price of each Warrant will
be [$]________. On _______, ____ the exercise price of each Warrant will be
[$]_________. During the period from ____________, ____ through and including
__________, ____, the exercise price of each Warrant will be [$]_______________.
Such purchase price of Warrant Securities will be denominated in U.S. dollars
and is referred to in this Agreement as the "Warrant Price."
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SECTION 2.02. Duration of Warrants. Each Warrant evidenced by a Warrant
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Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [_____________, ____] and at or before the close of
business on _____________, ____ (such date, the "Expiration Date" and such
period, the "Exercise Period"). Each Warrant not exercised at or before the
close of business on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant and under this
Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) In order to exercise Warrants the
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Holder or Depositary Participant must deposit a notice (the "Exercise Notice")
with the Depositary with a copy to the Warrant Agent, before 10:00 a.m., New
York time, on any Exercise Date, such Exercise Notice to be in the form (for the
time being current) available from the Warrant Agent, and must, in such Exercise
Notice: (i) specify the number of Warrants being exercised by the Holder or
Depositary Participant; (ii) give an irrevocable authority and instruction to
the Depositary to debit, on the first Business Day following the Exercise Date,
the Depositary Participant's account pro tanto with the Warrants being
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exercised; (iii) specify the number of the Depositary Participant's account at
the Depositary, to be debited with the Warrants; (iv) specify the name and
number of the account and the name and address of the relevant bank or other
financial institution to which the shares or funds, if applicable, should be
transferred or give other appropriate details; and (v) undertake to pay and give
instructions for the payment of any applicable stamp duty, stamp duty reserve
tax and any other charges, taxes and duties due by reason of exercise of
Warrants.
As the Warrants are represented by the Global Warrant Certificate, a
beneficial owner must (at his own expense) complete, sign and deposit such
Exercise Notice with the Depositary Participant, whereupon the Depositary shall
promptly notify the Warrant Agent of such authority, such deposit and the number
of the Warrants to be exercised. Upon exercise of part of a Global Warrant
Certificate, the Depositary will note such exercise on the Schedule to such
Global Warrant Certificate and the number of Warrants so exercised as
represented by such Global Warrant Certificate shall be cancelled. Upon receipt
of an Exercise Notice, the Depositary shall verify that the person exercising
the Warrants is the holder thereof according to its books of and records, and,
subject thereto, will confirm to the Warrant Agent (a) the number of Warrants
being exercised, and (b) the name and number of the account and the name and
address of the relevant bank or financial institution to which the shares or the
funds, as the case may be, should be transferred (or other appropriate details
for the transfer). To be valid, an Exercise
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Notice must be lodged prior to 10:00 a.m., New York time, on the Exercise Date.
Upon receipt thereof by the Warrant Agent, the Exercise Notice may not be
withdrawn.
The New York Business Day during the Exercise Period on which an Exercise
Notice is received, or is deemed to have been received, prior to 10:00 a.m. New
York time, as appropriate, by the Depositary, and the copy thereof by the
Warrant Agent, is referred to herein as the "Exercise Date". Any Exercise
Notice which is delivered to the Depositary and the copy thereof to the Warrant
Agent, after 10:00 a.m. New York time, on any given date will be deemed to have
been received on the next New York Business Day. Accordingly, in order to
exercise Warrants on the Exercise Date, the relevant Exercise Notice must be
received by the Depositary and the copy thereof by the Warrant Agent, no later
than 10:00 a.m. New York time on the last day of the Exercise Period. Any
Exercise Notice received or deemed to have been received after such time shall
be void and all rights of the Warrantholder and any other person hereunder with
respect to any Warrants which have not been duly exercised prior to such time
shall lapse.
Warrants with respect to which an Exercise Notice has been delivered as set
out above shall nonetheless be deemed not to have been exercised in the event
that (A) the Depositary or the Warrant Agent is not satisfied that the person
submitting such Exercise Notice is, on the date of receipt, validly entitled to
exercise such Warrants or (B) an Exercise Notice has not been delivered in
complete or in proper form. Any such Exercise Notice shall for all purposes be
void and of no effect and shall be deemed not to have been delivered.
Any determination by the Depositary or the Warrant Agent as to whether an
Exercise Notice is complete or in proper form shall, in the absence of manifest
error, be conclusive and binding upon the Company, the Warrantholder and the
beneficial owner of the Warrants exercised.
(b) During the Exercise Period, any whole number of Warrants, may be
exercised by providing certain information set forth in the Exercise Notice and
by paying in full, [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 at its corporate trust office, ____________________ [or at
________________________] on the Exercise Date. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in the account of
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the Company maintained with it for such purpose 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 telephonic 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 Warrants exercised in accordance with
the terms and conditions of this Agreement and the Warrant Certificates, (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 shall reasonably require.
(c) In respect of any Warrants which are duly exercised, the Company shall,
on the Exercise Date, transfer or procure the transfer of the relevant Warrant
Securities to the account with the bank or depositary or as otherwise specified
by the exercising Warrantholder in the relevant Exercise Notice. Such
instructions for the transfer of such Warrant Securities shall be in accordance
with market practice and any applicable legal restrictions for the settlement of
transactions in Warrant Securities executed on the Exercise Date for delivery on
the [ ] Stock Exchange, failing which, in the sole discretion of the
Company, the Company shall transfer or procure the transfer of such Warrant
Securities in such manner as it shall see fit. All such Warrant Securities
transferred shall be fully-paid and non-assessable and shall entitle the holders
thereof to participate in full in all dividends and other distributions paid or
made on the Warrant Securities the record date for which falls after the
Exercise Date. Where any rounding adjustment has been made in calculating the
number of Warrant Securities, the Warrant Agent shall be under no obligation to
pay to the exercising Warrantholder an amount equal to such adjustment and the
Warrantholder shall have no entitlement to demand the same.
(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 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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SECTION 2.04. Return of Global Warrant Certificate. At such time as all
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of the Warrants have been exercised or otherwise cancelled, the Warrant Agent
shall destroy the cancelled Global Warrant Certificate unless the Company
directs it to be returned to the Company.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholders Conferred by Warrants
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or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
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shall entitle the Holder thereof to any of the rights of a holder of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
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Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to them and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, 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 lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Warrant 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.
12
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Warrant Agreement, any Holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Holder of any
Warrant Securities or the Holder of any other Warrant Certificate, may, on its
own behalf and for its own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, its right to exercise the Warrant or Warrants evidenced by its
Warrant Certificate in the manner provided in its Warrant Certificate and in
this Warrant Agreement.
ARTICLE IV.
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company shall
------------------------
purchase or otherwise acquire Warrants, such Warrants may, at the option of the
Company and upon notification to the Warrant Agent, be surrendered free through
a Depositary Participant for credit to the Warrant Account and if so credited
the Warrant Agent shall promptly note the cancellation of such Warrants by
notation on the records of the Warrant Agent. No Warrant shall be issued in
lieu of or in exchange for any Warrant which is cancelled as provided herein,
except as otherwise expressly permitted by this Agreement.
SECTION 4.02. Treatment of Holders. The Company, the Warrant Agent and
--------------------
any agent of the Company or the Warrant Agent may deem and treat the Holder of
any Warrant Certificate as the absolute owner of such Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Company nor the Warrant Agent, nor
any agent of the Company or the Warrant Agent shall be affected by any notice to
the contrary.
SECTION 4.03. Termination of Warrants. The Company shall have the right
-----------------------
to terminate the Warrants if it shall have determined that its performance
thereunder shall have become unlawful in whole or in part as a result of
compliance in good faith by the Company with any applicable present or future
law, rule, regulation, judgment, order or directive of any governmental,
administrative, legislative or judicial authority or power ("applicable law").
In such circumstances the Company will, however, if and to the extent permitted
by applicable law, pay to each Warrantholder in respect of each Warrant held by
such Warrantholder an amount determined by the Warrant Agent as representing the
fair market value of such Warrant immediately
13
prior to such termination (ignoring such illegality). Payment will be made to
the Warrantholders, in such manner as shall be notified to the Warrantholders in
accordance herewith.
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. (i) The Company agrees to pay the
--------------------------------
Warrant Agent promptly 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 by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. (ii) The Company agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability, or expense arising
out of or in connection with its acting as such Warrant Agent hereunder, as well
as the reasonable costs and reasonable expenses of defending against any claim
or liability in the premises, except, in each such case, to the extent any such
loss, liability, or expense is attributable to negligence or bad faith on the
part of Warrant Agent.
(b) Agent for the Company. In acting under this Warrant Agreement and in
---------------------
connection with the Warrants, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
with any of the owners or holders of the Warrants.
14
(c) 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 Certificates, 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.
(d) Certain Transactions. The Warrant Agent, and its officers, directors
--------------------
and employees, may become the owner of, or acquire any interest in, any
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.
(e) No Liability for Interest. The Warrant Agent shall not be under any
-------------------------
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Warrant Agreement or of the Warrants.
(f) No Liability for Invalidity. The Warrant Agent shall not incur any
---------------------------
liability with respect to the validity of any of the Warrants.
(g) No Responsibility for Representations. The Warrant Agent shall not be
-------------------------------------
responsible for any of the recitals or representations herein or in the Warrant
Certificates contained (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(h) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform 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
15
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 Warrant Certificates 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 will 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 agrees to accept less notice. 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 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
obligations 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.
(c) In case at any time the Warrant Agent shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable Federal or State bankruptcy law or
similar law or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any substantial part of its
property or assets, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or of all or any
substantial part of its property or assets shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions of Title
11 of the United States Code, as now constituted or hereafter amended, or under
any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
16
liquidation, it shall be disqualified from serving as Warrant Agent and 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 so
disqualified 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 further act, deed or conveyance, shall become vested with all
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 Warrant Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 5.04. Payment of Taxes. The Company will pay all stamp and other
----------------
duties, if any, to which, under the laws of the United States of America, this
Warrant Agreement or the original issuance of the Warrant Certificates may be
subject.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. Amendment. (a) This Warrant Agreement and the terms of the
---------
Warrants 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
17
under this Warrant Agreement as the Company and the Warrant Agent may deem
necessary or desirable; provided that such action shall not adversely affect the
interests of the Holders of the Warrant Certificates.
(b) This Warrant Agreement and the terms of the Warrants may be amended at
any time with the consent of the Holders of not less than a majority in number
of the Warrants that are outstanding and unexercised at such time, provided,
--------
however, that no such amendment shall be made which shall (i) shorten the period
-------
of time during which the Warrants may be exercised or otherwise materially and
adversely affect the exercise rights of the Holders or (ii) reduce the
percentage in number of outstanding and unexercised Warrants the Holders of
which must consent to any amendment of this Warrant Agreement or the terms of
the Warrants which requires consents of Holders, without the consent of the
Holder of each Warrant 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 of demand to
the Company.
SECTION 6.03. Addresses. Any communications from the Company to the
---------
Warrant Agent with respect to this Warrant Agreement shall be addressed to
_____________, Attention: ____________, and any communications from the Warrant
Agent to the Company with respect to this Warrant Agreement shall be addressed
to the Company at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Secretary, with a copy to the Treasurer at World Financial Center,
South Tower, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Governing Law. This Warrant Agreement and each Warrant
--------------
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York, applicable to agreements made and to be
performed in such state.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
18
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a 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, maintenance of the effectiveness of a
registration statement in respect of the Warrants and Warrant Securities under
the Securities Act of 1933), which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon the expiration
of the period during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
---------------------------------------------
this Warrant Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation 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 Warrant Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Warrant Agreement contained shall
be for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the Holders of the Warrant Certificates.
SECTION 6.08. Headings. The descriptive headings of the several Articles
--------
and Sections of this Warrant 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 Warrant Agreement may be executed in any
------------
number of counterparts, each of which 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 Warrant 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 its Warrant
Certificate for inspection by it.
19
[SECTION 6.11. Adjustment of Number of [Preferred Stock] [Shares of Common
-----------------------------------------------------------
Stock]; Notices. The number of [Preferred Shares] [shares of Common Stock]
---------------
purchasable upon the exercise of each Warrant (the "Exercise Rate") is subject
to adjustment from time to time as provided in this Section.
(a) Dividends or Distributions in [Preferred Stock] [Shares of Common
-----------------------------------------------------------------
Stock]. In case the Company shall pay or make a dividend or other distribution
------
on [any class or series of Preferred Stock for which Warrants may be exercised]
[its Common Stock] in [such Preferred Stock] [shares of its Common Stock], the
Exercise Rate in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Exercise Rate by a
fraction of which the numerator shall be the number of shares of [such Preferred
Stock] [Common Stock] outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of [Preferred Stock] [Common Stock] at
any time outstanding shall not include shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on
shares of [Preferred Stock] [Common Stock] held in the treasury of the Company.
(b) Rights or Warrants. In case the Company shall issue rights or warrants
------------------
to all Holders of [a class or series of its Preferred Stock for which Warrants
may be exercised] [shares of its Common Stock] entitling them to subscribe for
or purchase shares of [such Preferred Stock] [Common Stock] at a price per share
less than the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Stock] [Common Stock] on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, the Exercise Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Exercise Rate by a fraction of which the numerator shall be the number of
shares of [such Preferred Stock] [Common Stock] outstanding at the close of
business on the date fixed for such determination plus the number of shares of
[such Preferred Stock] [Common Stock] which the aggregate of the offering price
of the total number of shares of [such Preferred Stock] [Common Stock] so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of [such Preferred Stock]
[Common Stock] outstanding at the close of business on the date fixed for
20
such determination plus the number of shares of [such Preferred Stock] [Common
Stock] so offered for subscription or purchase, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (b), the
number of shares of [Preferred Stock] [Common Stock] at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of [Preferred Stock] [Common Stock]. The Company will not issue any
rights or warrants in respect of shares of [Preferred Stock] [Common Stock] held
in the treasury of the Company.
(c) Subdivision or Combination. In case outstanding shares of [a class or
--------------------------
series of its Preferred Stock for which Warrants are exercisable] [Common Stock]
shall be subdivided into a greater number of shares of [such Preferred Stock]
[Common Stock], the Exercise Rate in effect at the opening of business on the
day following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of [a
class or series of its Preferred Stock for which Warrants are exercisable]
[Common Stock] shall each be combined into a smaller number of shares of [such
Preferred Stock] [Common Stock], the Exercise Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) Dividend or Distribution of Assets. In case the Company shall, by
----------------------------------
dividend or otherwise, distribute to all Holders of [a class or series of its
Preferred Stock for which Warrants are exercisable] [shares of its Common Stock]
evidences of its indebtedness or assets (including securities, but excluding any
rights or warrants referred to in paragraph (b) of this Section, any dividend or
distribution paid in cash out of the retained earnings of the Company and any
dividend or distribution referred to in paragraph (a) of this Section), the
Exercise Rate shall be adjusted so that the same shall equal the price
determined by dividing the Exercise Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section) of [such Preferred Stock] [Common Stock] on the date fixed for
such determination less the then fair-market value (as determined by the Board
of Directors or an authorized committee thereof, whose determination shall be
21
conclusive and described in a Resolution filed with the Warrant Agent and any
other Registrar) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of [such Preferred Stock] [Common Stock] and
the denominator shall be such current market price per share of [such Preferred
Stock] [Common Stock], such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
(e) Reclassification. The reclassification of [a class or series of its
----------------
Preferred Stock for which Warrants are exercisable] [the Company's Common Stock]
into securities other than such [Preferred Stock] [Common Stock] (other than any
reclassification upon a consolidation or merger to which paragraph (1) of this
Section applies) shall be deemed to involve (i) a distribution of such
securities other than such [Preferred Stock] [Common Stock] to all Holders of
[such Preferred Stock] [Common Stock] (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section), and (ii) a
subdivision or combination, as the case may be, of the number of shares of [such
Preferred Stock] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Stock] [Common
Stock] outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "The day upon which such subdivision
becomes effective" or "The day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section).
(f) Current Market Price. For the purpose of any computation under
--------------------
paragraphs (b) and (d) of this Section, the current market price per share of
[Preferred Stock] [Common Stock] on any date shall be deemed to be the average
of the daily closing prices for the 15 consecutive Business Days selected by the
Company commencing not less than 20 nor more than 30 Business Days before the
day in question. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case on the New York Stock Exchange or, if such Preferred Stock are not
listed or admitted to trading on such Exchange, on the principal national
securities exchange on which such Preferred Stock are listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, on the National Association of Securities Dealers Automated Quotations
National Market System or, if such Preferred Stock are not listed
22
or admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for the purpose. In the event that no
such market trading exists, the current market price of such Preferred Stock
will be determined by three independent nationally reorganized investment
banking firms selected by the Company in such manner as the Board of Directors
or an authorized committee thereof deems appropriate. "Business Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions where Warrants may be surrendered for exercise are
authorized or obligated by law or executive order to close.
(g) Adjustments for Tax Purposes. The Company may make such adjustments in
----------------------------
the Exercise Rate, in addition to those required by paragraphs (a), (b), (c) and
(d) of this Section, as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients.
(h) No Adjustment Below Par Value. Notwithstanding the provisions of this
-----------------------------
Section, the Exercise Rate shall not be increased such that the price paid per
share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Rate, for legally issued, fully paid and
nonassessable shares of [Preferred Stock] [Common Stock].
(i) Permitted Distributions. The granting of the right to purchase shares
-----------------------
of [Preferred Stock] [Common Stock] (whether from treasury shares or otherwise),
pursuant to (i) any dividend or interest reinvestment plan or [Preferred Stock]
[Common Stock] purchase plan providing for the reinvestment of dividends or
interest payable on securities of the Company and/or the investment of periodic
optional payments; and (ii) any stock option plans and/or employee benefit or
similar plans shall not be deemed to constitute an issue of rights or warrants
by the Company.
(j) No Adjustments Necessary. No adjustment in the Exercise Rate shall be
------------------------
required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, provided, however, that any adjustment
-------- -------
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to
23
the nearest cent or to the nearest 1/100 of a share, as the case may be.
(k) Notice of Adjustment. Whenever the Exercise Rate is adjusted as herein
--------------------
provided, the Company shall forthwith (i) compute the adjusted Exercise Rate in
accordance herewith and prepare a certificate signed by an officer of the
Company setting forth the adjusted Exercise Rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Warrant Agent and any other Registrar and (ii) cause
a notice stating that such adjustment has been effected and the adjusted
Exercise Rate to be mailed to the Holders of Warrants at their last addresses as
they shall appear on the Warrant Register.
(l) Successor Company. In case of any reclassification or change of
-----------------
outstanding shares of [the class or series of Preferred Stock issuable upon
exercise of the Warrants] [Common Stock] (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or in case of any merger or
consolidation of the Company with one or more other corporations (other than a
merger or consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding shares of
[the class or series of Preferred Stock issuable upon exercise of the Warrants]
[Common Stock]), or in case of the merger of the Company into another
corporation, or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
Holder of Warrants of each series then outstanding shall have the right to
exercise such Warrant for the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon reclassification,
change, consolidation, merger, sale or conveyance by a Holder of the number of
shares of [such class or series of Preferred Stock] [Common Stock] for which
such Warrant might have been exercised immediately prior to such
reclassification, change consolidation, merger, sale or conveyance. In any such
case, the Company, or such successor or purchasing corporation, as the case may
be, shall execute and deliver to the Warrant Agent a supplemental Warrant
Agreement containing provisions to the effect set forth above and providing
further for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) Company to Reserve Capital Securities. The Company shall at all times
-------------------------------------
reserve and keep available out of the
24
aggregate of its authorized but unissued shares or its issued shares held in its
treasury, or both, for the purpose of effecting the exercise of the Warrants,
such full number of its duly authorized shares of [Preferred Stock] [Common
Stock] as shall from time to time be sufficient to effect the exercise of all
outstanding Warrants.
If any shares of [Preferred Stock] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon exercise, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
The Company covenants that all shares of [Preferred Stock] [Common Stock]
which may be delivered upon exercise of Warrants shall upon delivery be fully
paid and nonassessable by the Company, subject to applicable law and, except for
taxes in connection with the exercise of the Warrants, free from all taxes,
liens and charges with respect to the issue or delivery thereof.
(n) Company to Give Notice of Certain Events. In the event
----------------------------------------
(1) that the Company shall pay any dividend or make any distribution
to the Holders of shares of [Preferred Stock issuable upon exercise of the
Warrants] [Common Stock] otherwise than in cash charged against
consolidated net earnings or retained earnings of the Company and its
consolidated subsidiaries or in [such Preferred Stock] [shares of Common
Stock]; or
(2) that the Company shall offer for subscription or purchase, pro
rata, to the Holders of [Preferred Stock issuable upon exercise of the
Warrants] [Common Stock] any additional shares of stock of any class or any
securities exercisable for or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares of [the
class or series of Preferred Stock issuable upon the exercise of the
Warrants] [Common Stock] (other than a change in par value, or from par
value to no par value, or from no par combination), or of any merger of
consolidation of the Company with, or merger of the Company into, another
corporation (other than a merger or consolidation in which the Company is
the continuing corporation and which does not result in reclassification or
change of outstanding shares of [Preferred Stock issuable
25
upon exercise of the Warrants] [Common Stock]), or of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least twenty
days (or ten days in any case specified in clause (1) or (2) above) prior to (i)
the record date fixed with respect to any of the events specified in (1) and (2)
above and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly after providing such notice to the Warrant Agent or such
other Registrar a copy of such notice to the Holders thereof at their last
addresses as they shall appear upon the Warrant Register. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(o) Company Determination Final. Any determination that the Company or the
---------------------------
Board of Directors or an authorized committee thereof must make pursuant to this
Section shall be final and binding, absent (in the case of any numerical
calculation) manifest error.
(p) Warrant Agent's Adjustment Disclaimer. The Warrant Agent has no duty
-------------------------------------
to determine when an adjustment under this Section should be made, how it should
be made or what it should be. The Warrant Agent has no duty to determine
whether a supplemental warrant agreement under paragraph (l) need be entered
into or whether any provisions of any supplemental warrant agreement are
correct. The Warrant Agent shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon exercise of Warrants. The Warrant Agent shall not be responsible for the
Company's failure to comply with this Section.
(q) Adjustments and Warrant Certificates. Irrespective of any adjustments
------------------------------------
in the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same number and kind of shares per Warrant as are stated on the Warrant
Certificates initially issuable pursuant to this Agreement.
(r) Subsequent Event. After an adjustment to the Exercise Rate under this
----------------
Section, any subsequent event requiring an
26
adjustment under this Section shall cause an adjustment to the Exercise Rate as
so adjusted.
SECTION 6.12. Fractional Shares. The Company shall not be required to
-----------------
deliver fractions of shares of [Preferred Stock] [Common Stock] upon exercises
of Warrants. If more than one Warrant shall be surrendered for exercise at one
time by the same Holder, the number of full shares which shall be deliverable
upon exercise thereof shall be computed on the basis of the aggregate of the
Warrants so surrendered instead of any fractional share of [Preferred Stock]
[Common Stock] which would otherwise be issuable upon exercise of any Warrant or
Warrants (or specified portions thereof). The Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price per share of [Preferred Stock] [Common Stock] (as determined
in accordance with Section 6.11(f) or in any other manner prescribed by the
Board of Directors or an authorized committee thereof) at the close of business
on the last Business Day prior to the Date of Exercise.]
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IN WITNESS WHEREOF, the Company has caused this Warrant Agreement to be
signed by one of its duly authorized officers, and its corporate seal to be
affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries; and ___________________ has caused this Warrant Agreement
to be signed by one of its duly authorized officers, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, all as of the day and year first above written.
XXXXXXX XXXXX & CO., INC.
By _______________________
Attest:
_________________________
[Warrant Agent]
By _______________________
Attest:
_________________________
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EXHIBIT A
---------
THIS WARRANT CERTIFICATE IS A GLOBAL WARRANT CERTIFICATE WITHIN THE MEANING OF
THE WARRANT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR WARRANTS IN CERTIFICATED FORM, THIS WARRANT CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
WARRANT CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. CUSIP No.
(Form of Global Warrant Certificate)
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants which transferred or exchanged
are not immediately unless attached to a
detachable: [Title of Offered
Securities].]
[Form of Legend if Prior to ________ this
Warrants are not Warrant cannot be
immediately exercisable: exercised in whole or in
part.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
XXXXXXX XXXXX & CO., INC.
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN NEW YORK, NEW YORK ON
___________, ____.
This certifies that CEDE & Co. or registered assigns is the registered
holder of the above indicated number of Warrants, each Warrant entitling such
Holder to purchase, at any time [after the close of business on ___________,
____ and] on or before the close of business on ____________, ____,
[$]__________ shares of [Title of Warrant Securities] (the "Warrant
Securities") of Xxxxxxx Xxxxx & Co., Inc. (the "Company"), issued and to be
issued [by the Company], on the following basis: [on __________, ____,] the
exercise price of each Warrant is [$]_______________, [during the period from
_________, ____, through and including ___________, ____, the exercise price of
each Warrant will be [$]___________, on ______________, ____, the exercise price
of each Warrant will be [$]__________, during the period from __________, ____,
through and including _____________, ____, the exercise price of each Warrant
will be [$]________. 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 _______, [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"), currently at the address specified on the reverse
hereof [or __________,] and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
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 Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled to
2
exercise the rights represented by the Warrants evidenced hereby, and neither
the Company nor the Warrant Agent nor any agent of the Company or the Warrant
Agent shall be affected by any notice to the contrary.
Subject to the terms of the Warrant Agreement and certain restrictions
set forth above, upon due presentment for registration of transfer of this
Global Warrant Certificate at the Warrant Agent Office of the Warrant Agent in
New York City, the Company shall execute and the Warrant Agent shall
authenticate and deliver in the name of the designated transferee a new Global
Warrant Certificate of like tenor and evidencing a like number of Warrants as
evidenced by this Global Warrant Certificate at the time of such registration of
transfer, which shall be issued to the designated transferee in exchange for
this Global Warrant Certificate, subject to the limitations provided in the
Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject
to amendment as provided in the Warrant Agreement.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a registered holder of the Warrant Securities, including, without
limitation, the right [to vote or] to receive payments of [dividends or
distributions of any kind.]
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
Dated as of __________, ____
XXXXXXX XXXXX & CO., INC.
By _______________________
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent:
By _______________________
Authorized Signature
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