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EXHIBIT 4.10
TEXAS INDUSTRIES, INC.
AND
[NAME OF WARRANT AGENT], WARRANT AGENT
_______________________
WARRANT AGREEMENT [DEBT SECURITIES]
DATED AS OF___________
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WARRANT AGREEMENT dated as of_________, 19___ , between TEXAS
INDUSTRIES, INC., a Delaware corporation (the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to),
and__________, as warrant agent (the "Warrant Agent", which term includes any
successor warrant agent hereunder).
WHEREAS the Company has entered into an Indenture dated as of
_____________, 19__ (the "Indenture"), with _________________, a ____________
corporation, as Trustee (the "Trustee", which term includes any successor
trustee under the Indenture), providing for the issuance from time to time of
the Company's debt securities, to be issued in one or more series as provided
in the Indenture;
[WHEREAS the Company proposes to sell] [title of debt securities being
offered] (the "Offered Securities") with] [WHEREAS the Company proposes to
issue] Warrant certificates evidencing one or more warrants (the "Warrants";
individually a "Warrant") representing the right to purchase up to an aggregate
principal amount of [$_____________] of Debt Securities, which are to be issued
under the Indenture (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being called the
"Warrant Certificates"; and
WHEREAS the Company desires that the Warrant Agent act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wish to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [Warrants shall be initially
issued in connection with the issuance of the Offered Securities] [but shall be
separately transferable on and after _______, 19___ (the "Detachable Date")]
[and shall not be separately transferable] [and each] [Each] Warrant
Certificate shall evidence ________ Warrants. Each Warrant evidenced by a
Warrant Certificate shall represent the right, subject to the provisions
contained herein and therein, to purchase a Warrant Security in the principal
amount of [$____________].
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Warrant Certificates, whenever issued, shall be in [bearer] [or] [registered]
form [or both] substantially in the form set forth in Annex A hereto, shall be
dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing
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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 common usage. The Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Operating Officer,
its Chief Financial Officer, one of its Vice Presidents (whether or not
designated by a number or word or words added before or after the title Vice
President), its Treasurer or an Assistant Treasurer under its corporate seal
and attested by its Secretary or one of its Assistant Secretaries. 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 evidenced thereby
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 shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date of the execution
of such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was not
such officer.
[IF BEARER WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [IF OFFERED DEBT SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior to the Detachable Date,
the registered owner of the Offered Security to which such Warrant Certificate
was initially attached (or the bearer if the Offered Securities is in bearer
form) and after such Detachable Date] the bearer of such Warrant Certificate.]
[IF REGISTERED WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. IF OFFERED SECURITIES WITH WARRANTS WHICH ARE
NOT IMMEDIATELY DETACHABLE--or, prior to the Detachable Date, upon the register
of the Offered Securities.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up-to-date.
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SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding [$_______] aggregate principal amount of Warrant Securities (except
as provided in Section 2.03(c), 3.02 and 4.01) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Agreement or from
time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company and upon order of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to [$____] aggregate principal amount of Warrant
Securities and shall deliver such Warrant Certificates to or upon the order of
the Company. Subsequent to such original issuance of the Warrant Certificates,
the Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates [IF REGISTERED WARRANTS--or in connection
with their transfer] as hereinafter provided, or as provided in Section
2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. During the period from and including
___________, 19__, to and including ____________, 19__, the exercise price of
each Warrant will be [___% of the principal amount of the Warrant Securities]
[$_____] plus [accrued amortization of the original issue discount] [accrued
interest] from the most recently preceding ________. [During the period from
________, 19__, to and including ________, 19__, the exercise price of each
Warrant will be [___% of the principal amount of the Warrant Securities]
[$_____] plus [accrued amortization of the original issue discount] [accrued
interest] from the most recently preceding ___________. [In each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using a 360-day year consisting of twelve 30-day months.] Such
purchase price of Warrant Securities is referred to in this Agreement as the
"Warrant Price". [The original issue discount for each [$____] principal
amount of Warrant Securities is [$_________].]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised
in whole at any time, as specified herein, on or after [the date thereof]
[__________, 19__ and at or before 5:00 p.m. New York City time on ________,
19__ or such later date as may be selected by the Company, in a written
statement to the Warrant Agent and with notice to the holders of Warrants (such
date of expiration being called the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York City time on the Expiration Date
shall become void and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised [, subject to Section 2.03(c),] by
delivery to the Warrant Agent of the Warrant Certificate evidencing such
Warrant, with the form of election to purchase Warrant
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Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed, and by paying in full, [in lawful money of the
United States of America,] [in the foreign currency or currency unit in which
the Warrant Securities are denominated] [by bank wire transfer] in immediately
available funds the Warrant Price for each Warrant exercised to the principal
corporate trust office of the Warrant Agent [or at _____]. The date on which
the duly completed and executed Warrant Certificate and payment in full of the
Warrant Price is received by the Warrant Agent shall be deemed to be the date
on which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of each
day on which a payment or wire transfer for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the number
of Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise and (iv) such other information as the Company or
the 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
denomination to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is
entitled, [in fully registered form, registered in such name or names] [in
bearer form,]as may be directed by such holder [; PROVIDED, HOWEVER, that the
Company shall deliver Warrant Securities in bearer form only outside the United
States of America(including the states and District of Columbia) and its
possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island, and Northern Mariana Islands) and only upon delivery from
the person entitled to physical delivery of such Warrant Securities of an
executed certification substantially in the form of Annex B hereto]. If fewer
than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute (attested and under seal as aforesaid), and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
a new Warrant Certificate evidencing the number of such Warrants remaining
unexercised, unless sufficient time does not exist before the Expiration Date
to exercise such Warrants in accordance with the provisions of this Agreement.
(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 issuance of the Warrant Securities and the Company
shall not be required to issue or deliver any Warrant Security until such tax
or other charge shall have been paid or it shall have been established to the
satisfaction of the Company that no such tax or other charge is due.
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ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS A HOLDER OF WARRANT 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 Securities, including without limitation the right to
receive the payment of principal of or premium, if any, or interest, if any, on
Warrant Securities or to enforce any of the covenants in the Indenture except
to the extent that in connection with any modification of the Indenture
pursuant to the provisions of Section _________ thereof a holder of any
unexpired Warrant shall be deemed to be the holder of the principal amount of
Warrant Securities issuable upon exercise of such Warrant.
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it and the Company 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
or holder in due course, the Company may (or, in the case of mutilation, shall)
execute, and in such event 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 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) any and all other rights or remedies notwithstanding any law
or statute existing or hereinafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrants
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evidenced by his Warrant Certificate in the manner provided in his Warrant
Certificate and in this Agreement.
[If Warrant Securities are exchangeable or convertible-- SECTION 3.04.
CONVERSION OR EXCHANGE. The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized [title of
security], the full number of shares of such [title of security] then issuable
upon exchange or conversion of all Warrant Securities.]
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--Upon] [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior to the Detachable Date a
Warrant Certificate may be exchanged or transferred only together with the
Offered Securities to which the Warrant Certificate was initially attached, and
only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Prior to the Detachable Date, each transfer
of the Offered Security [on the register maintained with respect to the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date, upon] surrender at the principal corporate trust
office of the Warrant Agent [or __________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [IF REGISTERED WARRANTS--or the transfer may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence a like number of Warrants as the Warrant Certificates so surrendered.
[IF REGISTERED AND BEARER WARRANTS (SUBJECT TO ANY LIMITATIONS IMPOSED WITH
RESPECT TO SUCH EXCHANGES)--After the Detachable Date, upon] [Upon] surrender
at the principal corporate trust office of the Warrant Agent [or __________],
Warrant Certificates in bearer form may be exchanged for Warrant Certificates
in registered form evidencing a like number of Warrants.] [IF REGISTERED
WARRANTS-- 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 principal corporate trust office [or_____] for exchange [or
registration of transfer], properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent.] The Company may
require payment of a service charge for any exchange [or registration of
transfer] of Warrant Certificates, and 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
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Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration or transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--
Subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS
WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ISSUED INDEPENDENT OF ANY OFFERED
SECURITIES--Each] Warrant Certificate shall be transferable by delivery and
shall be deemed negotiable and the bearer of each Warrant Certificate may be
treated by the Company, the Warrant Agent and all other persons dealing with
such bearer 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.] [IF REGISTERED WARRANTS-- Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company and the Warrant Agent [or
the registrar of the Offered Securities prior to the Detachable Date], may
treat such registered holder as the absolute owner thereof for any purpose and
as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [, registration of transfer] or exercise
of the Warrants evidenced thereby, if surrendered to the Company, shall 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 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.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints the
Warrant Agent 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 the Warrant Agent 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
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and authority to act on behalf of the Company as the Company may hereafter
grant to or confer upon it in writing. 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 agree
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel
fees)incurred 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 or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim of
such liability.
(b) AGENT FOR THE COMPANY. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any fiduciary
obligation or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered 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.
(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants and/or Warrant Securities and/or Offered Securities, 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, Offered Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in this Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under the Indenture or as trustee under any other indenture with the
Company.
(e) 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.
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(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall
transfer to the Company 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 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.
(h) 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 might 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
countersigned and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise, or, except as provided in Section 6.02 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 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 agree. 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 upon which such removal 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 resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall file a
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petition seeking relief under the Federal Bankruptcy 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 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 shall be appointed, or if an order of any
court shall be entered for relief against it under the provisions of the
Federal Bankruptcy 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
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 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
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; PROVIDED
that such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
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SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to the
Warrant Agent at its principal corporate trust office at
______________________, _________________________, Attention:
_________________________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Texas Industries,
Inc., 0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000, Attention: General
Counsel, or such other address as shall be specified in writing by the Warrant
Agent or the Company.
SECTION 6.04. NOTICES TO HOLDERS OF WARRANTS. Any notice to
holders of Warrants which by any provisions of this Agreement is required or
permitted to be given shall be given [IF REGISTERED WARRANTS--by first class
mail, postage prepaid, at such holder's address as appears on the books of the
Warrant Agent [or on the register of the Offered Securities prior to the
Detachable Date] [IF BEARER WARRANTS--by publication at least once in a daily
morning newspaper in New York City [, in London] and in ________].
SECTION 6.05. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the substantive laws of the State of New York
without regard to any conflict of laws provisions.
SECTION 6.06. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus with an accompanying
prospectus supplement relating to the Warrant Securities, and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise, a copy of such prospectus and prospectus supplement.
SECTION 6.07. 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 and any applicable laws of other jurisdictions
(including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933) which may be
or become required 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 6.08. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement shall give to any person other than the Company,
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the Warrant Agent and the holders of the Warrant Certificates any right, remedy
or claim under or by reason of this Agreement.
SECTION 6.09. HEADINGS. The descriptive headings of the several
Articles or Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.11. 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 and the Company for inspection by the holder of any
Warrant Certificate. The Warrant Agent or the Company may require such holder
to submit his Warrant Certificate for inspection by it.
SECTION 6.12. PAYMENT OF STAMP AND OTHER DUTIES. The Company will
pay all stamp and other duties, if any, to which, under the laws of the United
States of America, the original issuance of the Warrant Certificates may be
subject.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by one of their respective authorized officers as of the day and year
first above written.
TEXAS INDUSTRIES, INC.
By ______________________________________
Name:
Title:
Title:
[NAME OF WARRANT AGENT]
By ______________________________________
Name:
Title:
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ANNEX A to Warrant Agreement
[FORM OF WARRANT CERTIFICATE]
[FACE OF WARRANT CERTIFICATE]
[FORM OF LEGEND IF SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE: Prior to ______, 19___ this Warrant Certificate cannot be
transferred or exchanged unless attached to a [Title of Offered Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
WARRANTS TO PURCHASE [DEBT SECURITIES]
Issued by TEXAS INDUSTRIES, INC.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ____, 19___
[No.]___________________________________________________________ Warrants
This certifies that [the bearer is the] [_____ or registered assigns
is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [registered owner] to purchase, at any time
[after 5:00 p.m. New York City time on _____________, 19__ and] at or before
5:00 p.m. New York City time on _____________, 19__ (or such later date as may
be selected by Texas Industries, Inc., a Delaware corporation (the "Company")
with notice to the holder hereof as provided in the Warrant Agreement (as
hereinafter defined)), [$____] principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of the Company, to be issued under the
Indenture (as hereinafter defined), on the following basis: during the period
from and including _____________, 19___, the exercise price of each Warrant
will be [_____% of the principal amount of the Warrant Securities] [$______]
plus [accrued amortization of the original issue discount] [accrued interest]
from the most recently preceding __________; during the period from
____________________, 19___, to and including ____________________, 19___, the
exercise price of each Warrant will be [___% of the principal amount of the
Warrant Securities] [$______] plus [accrued amortization of the original issue
discount] [accrued interest] from the most recently preceding __________ [, in
each case, the original issue discount will be amortized at a __% annual rate,
computed on an annual basis, using a 360-day year consisting of twelve 30-day
months) (the "Warrant Price"). [The original issue discount for each [$1,000]
principal amount of Warrant Securities is [$__________] The holder may exercise
the Warrants evidenced hereby by delivery to the Warrant Agent (as hereinafter
defined) of this Warrant Certificate, with the form of election to purchase on
the reverse hereof properly completed and duly executed and by paying in full,
[in lawful money of the United States of America] [in the foreign currency or
currency unit in which the Warrant Securities are denominated] by bank wire
transfer in immediately available funds the Warrant Price for each Warrant
exercised to the warrant agent, such delivery and payment to be made at the
principal corporate trust office of [name of Warrant Agent], or its successor
as warrant agent (the "Warrant Agent"), [or_____]
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currently at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein and the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities (in registered form in
denominations of [$_____] and any integral multiples thereof) (in bearer form
in the denomination of [$_____] [or both]). Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised, unless sufficient time does not exist to
exercise such Warrants in accordance with the provisions of the Warrant
Agreement before the Warrants become void.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, 19__ (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 principal corporate trust office of
the Warrant Agent specified on the reverse hereof [and at __________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of __________, 19__ (the "Indenture"),
between the Company and ___________, as Trustee (such Trustee and any successor
to such Trustee being hereinafter referred to as the "Trustee"), and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the principal
corporate trust office of the Trustee in New York City [and at
__________________________________________________________].
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Prior to _________, 19__, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] (the
"Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this] [IF OFFERED
SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--This] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the principal
corporate trust office of the Warrant Agent [or ______] by the registered owner
or his assigns, in person or by his attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Except as provided in the immediately preceding paragraph, after]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--After] countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate,
this Warrant Certificate may be exchanged at the principal corporate trust
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office of the Warrant Agent [or _________] for Warrant Certificates,
representing the same aggregate number of Warrants, [in registered form] [in
bearer form] [in either registered or bearer form].
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including without limitation
the right to receive payments of principal, of premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture, except to the extent that in connection with any modification of the
Indenture pursuant to the provisions of Section 11.02 thereof a holder of any
unexpired Warrant shall be deemed to be the holder of the principal amount of
Warrant Securities issuable upon exercise of such Warrant.
This Warrant Certificate shall be governed by, and construed in
accordance with the laws of the State of New York without regard to any
conflict of laws provisions.
The Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________, 19__.
TEXAS INDUSTRIES, INC.
By ______________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________________________________________
[Assistant] Secretary
By ______________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________________________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], As Warrant Agent
By _______________________________
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Name:
Title:
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(REVERSE OF WARRANT CERTIFICATE)
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay by bank
wire transfer in immediately available funds the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent], at its principal
corporate trust office at [insert address of Warrant Agent], Attention:
______________, [or ______________________________] which wire transfer must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth below. This
Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent together with such wire transfer. [If the undersigned is
requesting delivery of Warrant Securities in bearer form, the person entitled
to physical delivery of such Warrant Securities will be required to deliver a
certificate (copies of which may be obtained from the Warrant Agent [or
_____________]) certifying that such Warrant Securities are not being acquired
by or on behalf of a U.S. person or for resale to a U.S. person unless such
U.S. person is qualified under United States tax laws and regulations.]
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ________
Warrants, evidenced by this Warrant Certificate, to purchase [$____] principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Texas
Industries, Inc. and represents that he has tendered payment for such Warrant
Securities by bank wire transfer in immediately available funds to the order of
Texas Industries, Inc., in care of (insert name and address of Warrant Agent),
in the amount of [$_____] in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in [bearer form in
the authorized denominations] [fully registered form in the authorized
denominations, registered in such names and delivered], all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below or unless
sufficient time does not exist before the remaining Warrants become void.
Dated: ___________________________________
Name ________________________________
(Please Print)
___________________________________Address______________________________
(Insert Social Security or Other Identifying Number of Holder)
_____________________________________
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Signature ___________________________
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The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
________________________________________________________________________
________________________________________________________________________
_______________________________
By mail at
________________________________________________________________________
________________________________________________________________________
_______________________________
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[IF REGISTERED WARRANT]
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES TO TRANSFER
WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED __________ hereby sells assigns and transfers unto
Please insert social security or other identifying number.
_________________________________
___________________________________________________________________
(Please print name and address including zip code)
___________________________________________________________________
The Warrants represented by the within Warrant Certificate and does
hereby irrevocably constitute and appoint _________________________, Attorney,
to transfer said Warrant Certificate on the books of the Warrant Agent with
full power of substitution in the premises.
Dated: ______________________________________
Signature
(Signature must conform in all respects to the name of the 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, Chicago
or Pacific Stock Exchange.)
Signature Guaranteed:
__________________________________
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ANNEX B to Warrant Agreement
FORM OF CERTIFICATE FOR DELIVERY OF BEARER WARRANT SECURITIES
[DEBT SECURITIES]
Issued by TEXAS INDUSTRIES, INC.
To: Texas Industries, Inc.
This certificate is submitted in connection with the request of the
undersigned that you deliver [$_____] principal amount of [Title of Warrant
Securities] (the "Warrant Securities") in bearer form upon exercise of
Warrants.
The undersigned hereby certifies that as of the date hereof (the date
of delivery to the undersigned of the Warrant Securities), the Warrant
Securities which are to be delivered to the undersigned in bearer form are not
being acquired by or for the account or benefit of a United States person, or
for offer to resell or for resale to a United States person or any person who
is within the United States or, if any beneficial interest in the Warrant
Securities is being acquired by a United States person, such United States
person (i) is a foreign branch of a United States financial institution (as
defined in U.S. Treas. Reg. Section 1.165-12(c)(1)(v)) which has provided to
the person from which it purchased the obligation a certificate stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986 and the regulations thereunder (a "qualifying
foreign branch"), (ii) acquired such securities through a qualifying foreign
branch and is holding the obligation through such financial institution or
(iii) is a financial institution holding for purposes of resale during the
restricted period (as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7)), which financial institution has not acquired the
obligation for the purposes of resale directly or indirectly to a United States
person or to a person within the United States. In addition, the undersigned
hereby certifies that the above- referenced Warrant Securities are not being
acquired by or for the account or benefit of a "U.S. person", as the term is
defined in Regulation S under the United States Securities Act of 1933, as
amended. If the undersigned is a clearing organization, the undersigned
represents that this certificate is based on statements provided to it by its
member organizations. If the undersigned is a dealer, the undersigned agrees
to obtain a similar certificate from each person entitled to delivery of any of
the Warrant Securities in bearer form purchased from it. Notwithstanding the
foregoing, if the undersigned has actual knowledge that the information
contained in such certificate is false, the undersigned will not deliver a
Warrant Security in bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned. The
undersigned will be deemed to have actual knowledge that the beneficial owner
is a United States person for this purpose if the undersigned has a United
States address for the beneficial owner of the Security.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia) and its possessions,
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Islands, and Northern Mariana Islands; "United States person" means an
individual who is a citizen or resident of the United States, a corporation,
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partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source; and a "clearing organization" means an entity which is in the
business of holding obligations for member organizations and transferring
obligations among such members by credit or debit to the account of a member
without the necessity of physical delivery of the obligation.
The undersigned understands that this certificate may be required in
connection with United States tax laws and regulations. The undersigned
irrevocably authorizes you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate.
_______________________________________ (Signature)
Dated:
_______________________________________ (Please print name)
Address:
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TEXAS INDUSTRIES, INC.
AND
[NAME OF WARRANT AGENT], WARRANT AGENT
WARRANT AGREEMENT [COMMON STOCK]
DATED AS OF___________
25
WARRANT AGREEMENT dated as of_________, 19___ , between TEXAS
INDUSTRIES, INC., a Delaware corporation (the "Company"), and
_________________________________________, as warrant agent (the "Warrant
Agent", which term includes any successor warrant agent hereinafter referred
to).
[WHEREAS the Company proposes to sell] [title of Securities being
offered (the "Offered Securities") with] [WHEREAS the Company proposes to
issue] Warrant certificates evidencing one or more warrants (the "Warrants";
individually a "Warrant") representing the right to purchase shares of the
Common Stock of the Company (the "Warrant Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being called the "Warrant Certificates"; and
WHEREAS the Company desires that the Warrant Agent act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [Warrants shall be initially
issued in connection with the issuance of the Offered Securities] [but shall be
separately transferable on and after _______, 19___ (the "Detachable Date")]
[and shall not be separately transferable] [and each] [Each] Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced by a
Warrant Certificate shall represent the right, subject to the provisions
contained herein and therein, to purchase up to _________ shares of the Warrant
Securities.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Warrant Certificates, whenever issued, shall be in [bearer] [or] [registered]
form [or both] substantially in the form set forth in Annex A hereto, shall be
dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange on which the Warrants
may be listed, or to conform to common usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, one of its Vice Presidents (whether or not designated by a
number or word or words added before
26
or after the title Vice President), its Treasurer or an Assistant Treasurer
under its corporate seal and attested by its Secretary or one of its Assistant
Secretaries. 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 evidenced thereby
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 shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date of the execution
of such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was not
such officer.
[IF BEARER WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [IF OFFERED SECURITIES WITH WARRANTS
WHICH ARE NOT IMMEDIATELY DETACHABLE--prior to the Detachable Date, the
registered owner of the Offered Security to which such Warrant Certificate was
initially attached (or the bearer if the Offered Securities is in bearer form)
and after such Detachable Date] the bearer of such Warrant Certificate.]
[IF REGISTERED WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. IF OFFERED SECURITIES WITH WARRANTS WHICH ARE
NOT IMMEDIATELY DETACHABLE--or, prior to the Detachable Date, upon the register
of the Offered Securities.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up-to-date.
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant
Certificates evidencing the right to purchase up to __________ shares of
Warrant Securities (except as provided in Section 2.03(c), 3.02 and 4.01) may
be executed by the Company and delivered to the Warrant Agent upon the
execution of this Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company and upon order of the Company, countersign Warrant Certificates
evidencing Warrants representing the right to purchase up to __________ shares
of Warrant Securities and shall deliver such Warrant Certificates to or upon
the order of the Company.
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Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates [IF REGISTERED WARRANTS--or in connection with their
transfer] as hereinafter provided, or as provided in Section 2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. During the period from and including
___________, 19__, to and including ____________, 19__, the exercise price of
each Warrant will be [$_____] per share of the Warrant Securities. Such
purchase price of Warrant Securities is referred to in this Agreement as the
"Warrant Price".
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised
in whole at any time, as specified herein, on or after [the date thereof]
[__________, 19__ and at or before 5:00 p.m. New York City time on ________,
19__ or such later date as may be selected by the Company, in a written
statement to the Warrant Agent and with notice to the holders of Warrants (such
date of expiration being called the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York City time on the Expiration Date (an
"Expired Unexercised Warrant") shall become void and all rights of the holder
of the Warrant Certificate evidencing such Warrant under this Agreement shall
cease. [IF NYSE LISTED, INSERT--; provided however, Expired Unexercised
Warrants shall have a residual value of one share of Common Stock of the
Company per 100 Expired Unexercised Warrants.]
SECTION 2.03. EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised [, subject to Section 2.03(c),] by
delivery to the Warrant Agent of the Warrant Certificate evidencing such
Warrant, with the form of election to purchase Warrant Securities set forth on
the reverse side of the Warrant Certificate properly completed and duly
executed, and by paying in full, [in lawful money of the United States of
America,] [in the foreign currency or currency unit in which the Warrant
Securities are denominated] by bank wire transfer in immediately available
funds the Warrant Price for each Warrant exercised to the principal corporate
trust office of the Warrant Agent [or at _____]. The date on which the duly
completed and executed Warrant Certificate and payment in full of the Warrant
Price is received by the Warrant Agent shall be deemed to be the date on which
the Warrant is exercised. The Warrant Agent shall deposit all funds received
by it in payment of the Warrant Price in an account of the Company maintained
with it and shall advise the Company by telephone at the end of each day on
which a payment or wire transfer for the exercise of Warrants is received of
the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder
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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) As soon as practicable after the exercise of any
Warrant, the Company shall issue, to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute
(attested and under seal as aforesaid), and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised, unless sufficient
time does not exist before the Expiration Date to exercise such Warrants in
accordance with the provisions of this Agreement.
(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 issuance of the Warrant Securities and the Company
shall not be required to issue or deliver any Warrant Security until such tax
or other charge shall have been paid or it shall have been established to the
satisfaction of the Company that no such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS A HOLDER OF WARRANT 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 Securities, including, without limitation, the right to
receive any payment of dividends on Warrant Securities.
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it and the Company 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
or holder in due course, the Company may (or, in the case of mutilation, shall)
execute, and in such event 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)
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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 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) any and all
other rights or remedies notwithstanding any law or statute existing or
hereinafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company or suitable to enforce or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. RESERVATION OF SHARES. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized Common Stock, for the purpose of effecting the exercise of the
Warrants, the full number of shares of Common Stock then issuable upon the
exercise of all outstanding Warrants.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--Upon] [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior to the Detachable Date a
Warrant Certificate may be exchanged or transferred only together with the
Offered Securities to which the Warrant Certificate was initially attached, and
only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Prior to the Detachable Date, each transfer
of the Offered Security [on the register maintained with respect to the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date, upon] surrender at the principal corporate trust
office of the Warrant Agent [or __________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [IF REGISTERED WARRANTS--or the transfer may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence a like number of Warrants as the Warrant Certificates so surrendered.
[IF REGISTERED AND BEARER WARRANTS (SUBJECT TO ANY LIMITATIONS IMPOSED WITH
RESPECT TO SUCH EXCHANGES)--After the Detachable Date, upon] [Upon] surrender
at the principal corporate trust office of the Warrant Agent [or
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__________], Warrant Certificates in bearer form may be exchanged for Warrant
Certificates in registered form evidencing a like number of Warrants.] [IF
REGISTERED WARRANTS--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 principal corporate trust office [or_____] for
exchange [or registration of transfer], properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
The Company may require payment of a service charge for any exchange [or
registration of transfer] of Warrant Certificates, and may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such exchange [or registration of
transfer]. Whenever any Warrant Certificates are so surrendered for exchange
[or registration of transfer] an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration or transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--
subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS
WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ISSUED INDEPENDENT OF ANY OFFERED
SECURITIES--Each] Warrant Certificate shall be transferable by delivery and
shall be deemed negotiable and the bearer of each Warrant Certificate may be
treated by the Company, the Warrant Agent and all other persons dealing with
such bearer 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.] [IF REGISTERED WARRANTS--Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company, and the Warrant Agent
[or the registrar of the Offered Securities prior to the Detachable Date], may
treat such registered holder as the absolute owner thereof for any purpose and
as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [, registration of transfer] or exercise
of the Warrants evidenced thereby, if surrendered to the Company, shall be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be
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31
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 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.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints the
Warrant Agent 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 the Warrant Agent 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 in writing. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred 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 or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim of
such liability.
(b) AGENT FOR THE COMPANY. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any fiduciary
obligation or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered 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.
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(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants and/or Warrant Securities and/or Offered Securities, 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, Offered Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder.
(e) 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.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall
transfer to the Company 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 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.
(h) 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 might 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
countersigned and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise, or, except as provided in Section 6.02 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 shall become effective;
PROVIDED that such date shall not be less than three months
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33
after the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of the Company and
specifying such removal and the date upon which such removal 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 resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall file a petition seeking relief under the
Federal Bankruptcy 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 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
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable Federal or
state bankruptcy or similar law, of 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 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 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
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
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34
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; PROVIDED
that such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to the
Warrant Agent at its principal corporate trust office at
______________________, _________________________, Attention:
_________________________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Texas Industries,
Inc., 0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000 Attention: General
Counsel or such other address as shall be specified in writing by the Warrant
Agent or the Company.
SECTION 6.04. NOTICES TO HOLDERS OF WARRANTS. Any notice to
holders of Warrants which by any provisions of this Agreement is required or
permitted to be given shall be given [IF REGISTERED WARRANTS--by first class
mail, postage prepaid, at such holder's address as appears on the books of the
Warrant Agent [or on the register of the Offered Securities prior to the
Detachable Date] [IF BEARER WARRANTS--by publication at least once in a daily
morning newspaper in New York City [, in London] and in ________].
SECTION 6.05. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the substantive laws of the State of New York
without regard to any conflict of laws provisions.
SECTION 6.06. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus with an accompanying
prospectus supplement relating to the Warrant Securities, and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise, a copy of such prospectus and prospectus supplement.
SECTION 6.07. OBTAINING OF GOVERNMENTAL APPROVALS. The Company
will from time to time take all action which may be necessary to obtain and
keep
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35
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
state laws and any applicable laws of other jurisdictions (including without
limitation a registration statement in respect of the Warrants and Warrant
Securities under the Securities Act of 1933) which may be or become required 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 6.08. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.09. HEADINGS. The descriptive headings of the several
Articles or Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.11. 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 and the Company for inspection by the holder of any
Warrant Certificate. The Warrant Agent or the Company may require such holder
to submit his Warrant Certificate for inspection by it.
SECTION 6.12. PAYMENT OF STAMP AND OTHER DUTIES. The Company will
pay all stamp and other duties, if any, to which, under the laws of the United
States of America, the original issuance of the Warrant Certificates may be
subject.
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36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by one of their respective authorized officers as of the day and year
first above written.
TEXAS INDUSTRIES, INC.
By _________________________________
Name:
Title:
[NAME OF WARRANT AGENT]
By _________________________________
Name:
Title:
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37
ANNEX A to Warrant Agreement
[FORM OF WARRANT CERTIFICATE]
[FACE OF WARRANT CERTIFICATE]
[FORM OF LEGEND IF SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE: PRIOR TO ______, 19___ THIS WARRANT CERTIFICATE CANNOT BE
TRANSFERRED OR EXCHANGED UNLESS ATTACHED TO A [TITLE OF OFFERED SECURITIES].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
WARRANTS TO PURCHASE COMMON STOCK
Issued by
TEXAS INDUSTRIES, INC.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ____, 19___
[No.] _____________________________ Warrants
This certifies that [the bearer is the] [_____ or registered assigns
is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [registered owner] to purchase, at any time
[after 5:00 p.m. New York City time on _____________, 19__ and] at or before
5:00 p.m. New York City time on _____________, 19__ (or such later date as may
be selected by Texas Industries, Inc., a Delaware corporation (the "Company")
with notice to the holder hereof as provided in the Warrant Agreement (as
hereinafter defined)), _______ shares of the Common Stock (the "Warrant
Securities") of the Company, on the following basis: during the period from
and including _____________, 19___, the exercise price of each Warrant will be
[$______] per share of Common Stock; during the period from
____________________, 19___, to and including ____________________, 19___, the
exercise price of each Warrant will be [$______] (the "Warrant Price"). The
holder may exercise the Warrants evidenced hereby by delivery to the Warrant
Agent (as hereinafter defined) of this Warrant Certificate, with the form of
election to purchase on the reverse hereof properly completed and duly executed
and by paying in full, [in lawful money of the United States of America] [in
the foreign currency or currency unit in which the Warrant Securities are
denominated] by bank wire transfer in immediately available funds the Warrant
Price for each Warrant exercised to the warrant agent, such delivery and
payment to be made at the principal corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent"), [or_____]
currently at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein and the Warrant Agreement.
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38
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised, unless sufficient time does not exist to
exercise such Warrants in accordance with the provisions of the Warrant
Agreement before the Warrants become void.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, 19__ (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 principal corporate trust office of
the Warrant Agent specified on the reverse hereof [and at __________].
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--prior to _________, 19__, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] (the
"Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this] [IF OFFERED
SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--This] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the principal
corporate trust office of the Warrant Agent [or ______] by the registered owner
or his assigns, in person or by his attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Except as provided in the immediately preceding paragraph, after]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--After] countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate,
this Warrant Certificate may be exchanged at the principal corporate trust
office of the Warrant Agent [or _________] for Warrant Certificates,
representing the same aggregate number of Warrants, [in registered form] [in
bearer form] [in either registered or bearer form].
[IF NYSE LISTED, INSERT--; Warrants not exercised by 5 p.m. on the
date specified above ("Expired Unexercised Warrants") shall have a residual
value of one share of Common Stock of the Company per 100 Expired Unexercised
Warrants.]
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including without limitation
the right to receive any dividend payments on the Warrant Securities.
This Warrant Certificate shall be governed by, and construed in
accordance with the laws of the State of New York without regard to any
conflict of laws provisions.
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The Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________, 19__.
TEXAS INDUSTRIES, INC.
By _________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], As Warrant Agent
By _________________________________
Name:
Title:
15
40
(REVERSE OF WARRANT CERTIFICATE)
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay by bank
wire transfer in immediately available funds the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent], at its principal
corporate trust office at [insert address of Warrant Agent], Attention:
______________, [or ______________________________] which wire transfer must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth below. This
Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent together with such wire transfer. [If the undersigned is
requesting delivery of Warrant Securities in bearer form, the person entitled
to physical delivery of such Warrant Securities will be required to deliver a
certificate (copies of which may be obtained from the Warrant Agent [or
_____________]) certifying that such Warrant Securities are not being acquired
by or on behalf of a U.S. person or for resale to a U.S. person unless such
U.S. person is qualified under United States tax laws and regulations.]
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ________
Warrants, evidenced by this Warrant Certificate, to purchase ______________
shares of the Common Stock (the "Warrant Securities") of Texas Industries, Inc.
and represents that he has tendered payment for such Warrant Securities by bank
wire transfer in immediately available funds to the order of Texas Industries,
Inc., in care of (insert name and address of Warrant Agent)], in the amount of
[$_____] in accordance with the terms hereof. The undersigned requests that
said number of shares of Warrant Securities be registered form in the
authorized denominations, registered in such names and delivered], all as
specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below or unless
sufficient time does not exist before the remaining Warrants become void.
Dated:
____________________________________
Name
___________________________(Please Print)
_____________________________________
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41
Address _________________________
(Insert Social Security or Other Identifying Number of Holder)
_________________________________
Signature _______________________
17
42
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
By mail at
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
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[IF REGISTERED WARRANT]
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES TO TRANSFER
WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED __________ hereby sells assigns and transfers unto
Please insert social security or other identifying number.
_________________________________
__________________________________________________________________
(Please print name and address including zip code)
________________________________________________________________________
The Warrants represented by the within Warrant Certificate and does
hereby irrevocably constitute and appoint _________________________, Attorney,
to transfer said Warrant Certificate on the books of the Warrant Agent with
full power of substitution in the premises.
Dated:
______________________________________
Signature
(Signature must conform in all respects to the name of the 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, Chicago or
Pacific Stock Exchange.)
Signature Guaranteed:
_________________________________
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44
TEXAS INDUSTRIES, INC.
AND
[NAME OF WARRANT AGENT], WARRANT AGENT
___________________
WARRANT AGREEMENT [PREFERRED STOCK]
DATED AS OF ___________
45
WARRANT AGREEMENT dated as of ____________________________, 19___,
between TEXAS INDUSTRIES, INC., a Delaware corporation (the "Company") and
___________________________________________________, as warrant agent (the
"Warrant Agent"), which term includes any successor warrant agent hereunder.
[WHEREAS, the Company proposes to sell] [title of Securities being
offered (the "Offered Securities") with] [WHEREAS the Company proposes to
issue] Warrant certificates evidencing one or more warrants (the "Warrants";
individually a "Warrant") representing the right to purchase up to __________
shares of the [title] Preferred Stock of the Company (the "Warrant
Securities"), having the terms of which shall be set forth in the Certificate
of Designation relating thereto, such warrant certificates and other warrant
certificates issued pursuant to this Agreement being called the "Warrant
Certificates";] and
WHEREAS the Company desires that the Warrant Agent act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [Warrants shall be initially
issued in connection with the issuance of the Offered Securities] [but shall be
separately transferable on and after _______, 19___ (the "Detachable Date")]
[and shall not be separately transferable] [and each] [Each] Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced by a
Warrant Certificate shall represent the right, subject to the provisions
contained herein and therein, to purchase up to _________ shares of the Warrant
Securities.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Warrant Certificates, whenever issued, shall be in [bearer] [or] [registered]
form [or both] substantially in the form set forth in Annex A hereto, shall be
dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange on which the Warrants
may be listed, or to conform to common usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer,
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one of its Vice Presidents (whether or not designated by a number or word or
words added before or after the title Vice President), its Treasurer or an
Assistant Treasurer under its corporate seal and attested by its Secretary or
one of its Assistant Secretaries. 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 evidenced thereby
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 shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date of the execution
of such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was not
such officer.
[IF BEARER WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [IF OFFERED DEBT SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--prior to the Detachable Date,
the registered owner of the Offered Security to which such Warrant Certificate
was initially attached (or the bearer if the Offered Securities is in bearer
form) and after such Detachable Date] the bearer of such Warrant Certificate.]
[IF REGISTERED WARRANTS--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. IF OFFERED SECURITIES WITH WARRANTS WHICH ARE
NOT IMMEDIATELY DETACHABLE--or, prior to the Detachable Date, upon the register
of the Offered Securities.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up-to-date.
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant
Certificates evidencing the right to purchase ___________ shares of Warrant
Securities (except as provided in Section 2.03(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company and
upon order of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to __________ shares of Warrant
Securities and shall
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deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates [IF REGISTERED WARRANTS--or in connection with their
transfer] as hereinafter provided, or as provided in Section 2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. During the period from and including
___________, 19__, to and including ____________, 19__, the exercise price of
each Warrant will be [$_____]. Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price".
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[__________, 19__ and at or before 5:00 p.m. New York City time on ________,
19__ or such later date as may be selected by the Company, in a written
statement to the Warrant Agent and with notice to the holders of Warrants (such
date of expiration being called the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York City time on the Expiration Date (an
"Expired Unexercised Warrant") shall become void and all rights of the holder
of the Warrant Certificate evidencing such Warrant under this Agreement shall
cease[.] [IF NYSE LISTED, INSERT--; provided however, Expired Unexercised
Warrants shall have a residual value of one share of Common Stock of the
Company per 100 Expired Unexercised Warrants.]
SECTION 2.03. EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised [, subject to Section 2.03(c),] by
delivery to the Warrant Agent of the Warrant Certificate evidencing such
Warrant, with the form of election to purchase Warrant Securities set forth on
the reverse side of the Warrant Certificate properly completed and duly
executed, and by paying in full, [in lawful money of the United States of
America,] [in the foreign currency or currency unit in which the Warrant
Securities are denominated] by bank wire transfer in immediately available
funds the Warrant Price for each Warrant exercised to the principal corporate
trust office of the Warrant Agent [or at _____]. The date on which the duly
completed and executed Warrant Certificate and payment in full of the Warrant
Price is received by the Warrant Agent shall be deemed to be the date on which
the Warrant is exercised. The Warrant Agent shall deposit all funds received by
it in payment of the Warrant Price in an account of the Company maintained with
it and shall advise the Company by telephone at the end of each day on which a
payment or wire transfer for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder
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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) As soon as practicable after the exercise of any
Warrant, the Company shall issue, to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute
(attested and under seal as aforesaid), and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised, unless sufficient
time does not exist before the Expiration Date to exercise such Warrants in
accordance with the provisions of this Agreement.
(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 issuance of the Warrant Securities and the Company
shall not be required to issue or deliver any Warrant Security until such tax
or other charge shall have been paid or it shall have been established to the
satisfaction of the Company that no such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS A HOLDER OF WARRANT 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 Securities, including without limitation the right to receive
any dividend or payment on Warrant Securities.
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it and the Company 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
or holder in due course, the Company may (or, in the case of mutilation, shall)
execute, and in such event 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)
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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 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) any and all
other rights or remedies notwithstanding any law or statute existing or
hereinafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. RESERVATION OF SHARES. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized [title] Preferred Stock, the full number of shares of [title]
Preferred Stock then issuable upon the exercises of all outstanding Warrants,
and the Company shall at all times reserve and keep available, out of its
authorized capital stock, for the purpose of effecting any conversion of the
Warrant Securities, the full number of shares of such capital stock issuable
upon conversion of all Warrant Securities.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--Upon] [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Prior to the Detachable Date, a
Warrant Certificate may be exchanged or transferred only together with the
Offered Securities to which the Warrant Certificate was initially attached, and
only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Prior to the Detachable Date, each transfer
of the Offered Security [on the register maintained with respect to the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date, upon] surrender at the principal corporate trust
office of the Warrant Agent [or __________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [IF REGISTERED WARRANTS--or the transfer may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence a like number of Warrants as the Warrant Certificates so
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surrendered. [IF REGISTERED AND BEARER WARRANTS (SUBJECT TO ANY LIMITATIONS
IMPOSED WITH RESPECT TO SUCH EXCHANGES)--After the Detachable Date, upon]
[Upon] surrender at the principal corporate trust office of the Warrant Agent
[or __________], Warrant Certificates in bearer form may be exchanged for
Warrant Certificates in registered form evidencing a like number of Warrants.]
[IF REGISTERED WARRANTS-- 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 principal corporate trust office [or _____] for
exchange [or registration of transfer], properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
The Company may require payment of a service charge for any exchange [or
registration of transfer] of Warrant Certificates, and may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such exchange [or registration of
transfer]. Whenever any Warrant Certificates are so surrendered for exchange
[or registration of transfer] an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration or transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--
Subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS
WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ISSUED INDEPENDENT OF ANY OFFERED
SECURITIES--Each] Warrant Certificate shall be transferable by delivery and
shall be deemed negotiable and the bearer of each Warrant Certificate may be
treated by the Company, the Warrant Agent and all other persons dealing with
such bearer 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.] [IF REGISTERED WARRANTS--Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company and the Warrant Agent [or
the registrar of the Offered Securities prior to the Detachable Date], may
treat such registered holder as the absolute owner thereof for any purpose and
as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to contrary notwithstanding.]
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SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [, registration of transfer] or exercise
of the Warrants evidenced thereby, if surrendered to the Company, shall 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 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.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints the
Warrant Agent 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 the Warrant Agent 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 in writing. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred 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 or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim of
such liability.
(b) AGENT FOR THE COMPANY. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any fiduciary
obligation or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or
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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, Warrants and/or Warrant Securities and/or Offered Securities, 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, Offered Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder.
(e) 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.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall
transfer to the Company 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 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.
(h) 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 might 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
countersigned and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise, or, except as provided in Section 6.02 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.
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(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
PROVIDED that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date upon which such removal 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 resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall file a petition seeking relief under the
Federal Bankruptcy 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 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
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable Federal or
state bankruptcy or similar law, of 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 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 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
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
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qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; PROVIDED
that such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to the
Warrant Agent at its principal corporate trust office at
______________________, _________________________, Attention:
_________________________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Texas Industries,
Inc., 0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000, Attention: General
Counsel, or such other address as shall be specified in writing by the Warrant
Agent or the Company.
SECTION 6.04. NOTICES TO HOLDERS OF WARRANTS. Any notice to
holders of Warrants which by any provisions of this Agreement is required or
permitted to be given shall be given [IF REGISTERED WARRANTS--by first class
mail, postage prepaid, at such holder's address as appears on the books of the
Warrant Agent [or on the register of the Offered Securities prior to the
Detachable Date] [IF BEARER WARRANTS--by publication at least once in a daily
morning newspaper in New York City [, in London] and in ________].
SECTION 6.05. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the substantive laws of the State of New York
without regard to any conflict of laws provisions.
SECTION 6.06. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus with an accompanying
prospectus supplement relating to the Warrant Securities, and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise, a copy of such prospectus and prospectus supplement.
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SECTION 6.07. 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 and any applicable laws of other jurisdictions
(including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933) which may be
or become required 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 6.08. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.09. HEADINGS. The descriptive headings of the several
Articles or Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.11. 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 and the Company for inspection by the holder of any
Warrant Certificate. The Warrant Agent or the Company may require such holder
to submit his Warrant Certificate for inspection by it.
SECTION 6.12. PAYMENT OF STAMP AND OTHER DUTIES. The Company will
pay all stamp and other duties, if any, to which, under the laws of the United
States of America, the original issuance of the Warrant Certificates may be
subject.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by one of their respective authorized officers as of the day and year
first above written.
TEXAS INDUSTRIES, INC.
By ___________________________________
Name:
Title:
[NAME OF WARRANT AGENT]
By ___________________________________
Name:
Title:
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ANNEX A to Warrant Agreement
[FORM OF WARRANT CERTIFICATE]
[FACE OF WARRANT CERTIFICATE]
[FORM OF LEGEND IF SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE: PRIOR TO ______, 19___ THIS WARRANT CERTIFICATE CANNOT BE
TRANSFERRED OR EXCHANGED UNLESS ATTACHED TO A [TITLE OF OFFERED SECURITIES].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
WARRANTS TO PURCHASE [TITLE] PREFERRED STOCK
Issued by
TEXAS INDUSTRIES, INC.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ____, 19___
No. ________
This certifies that [the bearer is the] [_____ or registered assigns
is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [registered owner] to purchase, at any
time [after 5:00 p.m. New York City time on _____________, 19__ and] at or
before 5:00 p.m. New York City time on _____________, 19__ (or such later date
as may be selected by Texas Industries, Inc., a Delaware corporation (the
"Company") with notice to the holder hereof as provided in the Warrant
Agreement (as hereinafter defined)), __________ shares of the [title] Preferred
Stock (the "Warrant Securities") of Company, on the following basis: during
the period from and including _____________, 19___, the exercise price of each
Warrant will be [$______] per share; [during the period from
____________________, 19___, to and including ____________________, 19___, the
exercise price of each Warrant will be [$______] per share (the "Warrant
Price"). The holder may exercise the Warrants evidenced hereby by delivery to
the Warrant Agent (as hereinafter defined) of this Warrant Certificate, with
the form of election to purchase on the reverse hereof properly completed and
duly executed and by paying in full, [in lawful money of the United States of
America] [in the foreign currency or currency unit in which the Warrant
Securities are denominated] by bank wire transfer in immediately available
funds the Warrant Price for each Warrant exercised to the warrant agent, such
delivery and payment to be made at the principal corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "Warrant
Agent"), [or _____] currently at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth herein and the
Warrant Agreement.
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Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised, unless sufficient time does not exist to
exercise such Warrants in accordance with the provisions of the Warrant
Agreement before the Warrants become void.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, 19__ (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 principal corporate trust office of
the Warrant Agent specified on the reverse hereof [and at __________].
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Prior to _________, 19__, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] (the
"Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this] [IF OFFERED
SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--This] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the principal
corporate trust office of the Warrant Agent [or ______] by the registered owner
or his assigns, in person or by his attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Except as provided in the immediately preceding paragraph, after]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ISSUED INDEPENDENT OF ANY OFFERED SECURITIES--After] countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate,
this Warrant Certificate may be exchanged at the principal corporate trust
office of the Warrant Agent [or _________] for Warrant Certificates,
representing the same aggregate number of Warrants, [in registered form] [in
bearer form] [in either registered or bearer form].
[IF NYSE LISTED, INSERT--; Warrants not exercised by 5 p.m. on the
date specified above ("Expired Unexercised Warrants") shall have a residual
value of one share of Common Stock of the Company per 100 Expired Unexercised
Warrants.]
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including without limitation
the right to receive payments of any dividends on the Warrant Securities.
This Warrant Certificate shall be governed by, and construed in
accordance with the laws of the State of New York without regard to any
conflict of laws provisions.
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The Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________, 19__.
TEXAS INDUSTRIES, INC.
By ___________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________ [Assistant] Secretary
[NAME OF WARRANT AGENT], As Warrant Agent
By ___________________________________
Name:
Title:
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(REVERSE OF WARRANT CERTIFICATE)
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay by bank
wire transfer in immediately available funds the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent], at its principal
corporate trust office at [insert address of Warrant Agent], Attention:
______________, [or ______________________________] which wire transfer must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth below. This
Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent together with such wire transfer. [If the undersigned is
requesting delivery of Warrant Securities in bearer form, the person entitled
to physical delivery of such Warrant Securities will be required to deliver a
certificate (copies of which may be obtained from the Warrant Agent [or
_____________]) certifying that such Warrant Securities are not being acquired
by or on behalf of a U.S. person or for resale to a U.S. person unless such
U.S. person is qualified under United States tax laws and regulations.]
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ________
Warrants, evidenced by this Warrant Certificate, to purchase _______ shares of
[title] Preferred Stock (the "Warrant Securities") of Texas Industries, Inc.
and represents that he has tendered payment for such Warrant Securities by bank
wire transfer in immediately available funds to the order of Texas Industries,
Inc., in care of (insert name and address of Warrant Agent)], in the amount of
[$_____] in accordance with the terms hereof. The undersigned requests that
said number of shares of Warrant Securities be registered in such names and
delivered, all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below or unless
sufficient time does not exist before the remaining Warrants become void.
Dated:
________________________________ Name
_____________________________________ (Please Print)
________________________________ Address
___________________________________ (Insert Social Security or Other
Identifying
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Number of Holder) ___________________________________________
Signature __________________________________
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The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By mail at
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
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[IF REGISTERED WARRANT]
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES TO TRANSFER
WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED __________ hereby sells assigns and transfers unto
Please insert social security or other identifying number.
_________________________________
_________________________________ __________________________________
(Please print name and address including zip code)
________________________________________________________________________________
The Warrants represented by the within Warrant Certificate and does
hereby irrevocably constitute and appoint _________________________, Attorney,
to transfer said Warrant Certificate on the books of the Warrant Agent with
full power of substitution in the premises.
Dated:
______________________________________ Signature (Signature must
conform in all respects to the name of the 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, Chicago or Pacific Stock Exchange.)
Signature Guaranteed:
______________________________________
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