Exhibit 10.4
WARRANT AGREEMENT
WHX CORPORATION
AND
EQUISERVE TRUST COMPANY, N.A.
AS WARRANT AGENT
DATED AS OF JULY 29, 2005
WARRANTS TO PURCHASE
SHARES OF COMMON STOCK
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS.........................................................1
Section 1.01. Definitions................................................1
Section 1.02. Rules of Construction......................................3
ARTICLE 2 APPOINTMENT OF WARRANT AGENT........................................4
ARTICLE 3 THE WARRANTS........................................................4
Section 3.01. Form and Dating; Legends...................................4
Section 3.02. Execution and Countersignature.............................4
Section 3.03. Registrar..................................................4
Section 3.04. Replacement Warrant Certificates...........................4
Section 3.05. Outstanding Warrants.......................................5
Section 3.06. Temporary Warrant Certificates.............................5
Section 3.07. Cancellation...............................................5
Section 3.08. CUSIP and CINS Numbers.....................................5
Section 3.09. Registration, Transfer and Exchange........................6
ARTICLE 4 TERMS OF WARRANTS; EXERCISE OF WARRANTS.............................7
Section 4.01. Terms of Warrants; Exercise of Warrants....................7
ARTICLE 5 COVENANTS OF THE COMPANY............................................8
Section 5.01. Maintenance of Office or Agency............................8
Section 5.02. Payment of Taxes...........................................8
Section 5.03. Reservation of Warrant Shares..............................8
Section 5.04. Stock Exchange Listings....................................9
ARTICLE 6 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE.......................................................................9
Section 6.01. Adjustment of Exercise Price and Number of
Warrant Shares Issuable....................................9
Section 6.02. Fractional Interests......................................10
Section 6.03. Notices to Holders........................................10
Section 6.04. No Rights as Stockholders.................................10
ARTICLE 7 WARRANT AGENT......................................................10
Section 7.01. Warrant Agent.............................................10
Section 7.02. Individual Rights of Warrant Agent........................13
Section 7.03. Compensation and Indemnification of Warrant Agent.........13
Section 7.04. Replacement of Warrant Agent..............................13
i
Section 7.05. Successor Warrant Agent by Merger.........................13
Section 7.06. Holder Lists..............................................14
ARTICLE 8 MISCELLANEOUS......................................................14
Section 8.01. Notices...................................................14
Section 8.02. Supplements and Amendments................................14
Section 8.03. Governing Law.............................................16
Section 8.04. No Adverse Interpretation of Other Agreements.............16
Section 8.05. Successors................................................16
Section 8.06. Counterparts; Multiple Originals..........................16
Section 8.07. Separability..............................................16
Section 8.08. Table of Contents and Headings............................16
Section 8.09. Benefits of this Agreement................................16
Section 8.10. Waiver of Jury Trial......................................16
EXHIBIT A Form of Face of Warrant Certificate
EXHIBIT B Form of Reverse of Warrant Certificate
EXHIBIT C DTC Legend
ii
WARRANT AGREEMENT dated as of July 29, 2005, between WHX CORPORATION, a
Delaware corporation (the "Company"), and EQUISERVE TRUST COMPANY, N.A., a
corporation organized under the laws of Delaware, as warrant agent (the "Warrant
Agent").
Pursuant to the terms and conditions of the order dated July 21, 2005 (the
"Confirmation Order") approving and confirming the First Amended Chapter 11 Plan
of Reorganization of WHX Corporation, dated June 8, 2005, as the same may be
amended, restated or supplemented from time to time (the "Plan") relating to the
reorganization of the Company under Chapter 11 of the Bankruptcy Reform Act of
1978, as codified in Title 11 of the United States Code, 11 U.S.C. Sections
101-1330 (the "Bankruptcy Code"), the Company will issue to the holders of the
Company's Series A Preferred Stock and Series B Preferred Stock an aggregate of
753,168 warrants (the "Warrants") entitling the Holders thereof to purchase
shares of common stock, par value $0.01 per share, of the Company (the "Common
Stock"), for a price of $11.20 per share (as adjusted from time to time
hereunder, the "Exercise Price");
WHEREAS, pursuant to the Plan and Confirmation Order, the Warrants are
being offered pursuant to, and in reliance upon the exemption afforded by
section 1145(a)(i) of the Bankruptcy Code from the registration requirements of
the Securities Act of 1933, as amended, and of any applicable state securities
or "blue sky" laws;
The Company wishes the Warrant Agent to act in connection with the
issuance, exchange, transfer and exercise of the Warrants.
The Company desires to enter into this Agreement to set forth the terms and
conditions of the Warrants and the rights and obligations of the Company, the
Warrant Agent and the registered holders of the certificates evidencing
Warrants.
THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth herein and in the Plan, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Warrant Agent, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01 DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Member" means a member of, or a participant in, the Depositary.
"Agreement" means this Warrant Agreement, as amended or supplemented from
time to time.
"Board of Directors" means the board of directors or comparable governing
body of the Company, or any committee thereof duly authorized to act on its
behalf.
1
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Warrant Agent is located are authorized or required by law to
close.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock or partnership or
membership interests, whether common or preferred.
"Certificated Warrant" means a Warrant in registered individual form.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning assigned to such term in the preamble of
this Agreement.
"Company" means the party named as such in the preamble of this Agreement,
or any successor obligor under this Agreement.
"Confirmation Order" has the meaning assigned to such term in the preamble
of this Agreement.
"Corporate Trust Office" means the office of the Warrant Agent at which the
corporate trust business of the Warrant Agent is principally administered, which
at the Issue Date is located at c/o Computershare Investor Services, 000 Xxxxxx
Xxxxxx, Xxxxxx, XX 00000.
"Daily Price" on any day means the last reported sale price for the Common
Stock on the principal exchange or quotation system on which the Common Stock is
listed or traded. If the Common Stock is not admitted for trading on any
securities exchange or the Nasdaq National or SmallCap Market, "Daily Price" on
any day shall mean the average of the last reported closing bid and asked prices
reported by the Nasdaq Stock Market, Inc., the electronic securities market
regulated by the National Association of Securities Dealers, Inc., as furnished
by any member in good standing of the National Association of Securities
Dealers, Inc., selected from time to time by the Company for that purpose or as
quoted by the National Quotation Bureau Incorporated. In the event that no such
quotation is available for such day, the "Daily Price" on any day shall be the
average of the quotations for the last five trading days for which a quotation
is available within the last 10 trading days prior to such day. In the event
that five such quotations are not available within such 10-trading day period,
the "Daily Price" shall be determined in good faith by the Board of Directors of
the Company.
"Depositary" means the depositary of each Global Warrant, which will
initially be DTC.
"DTC" means The Depository Trust Company, a New York corporation, and its
successors.
"DTC Legend" means the legend set forth in Exhibit C.
"Exercise Price" has the meaning assigned to such term in the preamble of
this Agreement.
"Expiration Date" has the meaning assigned to such term in Section 4.01(a).
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"Global Warrant" means a Warrant in registered global form.
"Holder" means the record owner of any Warrant.
2
"Issue Date" means the date on which the Warrants are originally issued
under this Agreement.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"Officer" means the chairman of the Board of Directors, the president, the
chief executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, of the Company.
"Officers' Certificate" means a certificate signed in the name of the
Company by the chairman of the Board of Directors, the president, the chief
executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer of the Company.
"Opinion of Counsel" means a written opinion signed by the Company's legal
counsel, in form and substance reasonably satisfactory to the Warrant Agent.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" has the meaning assigned to such term in the preamble of this
Agreement.
"Register" has the meaning assigned to such term in Section 3.09.
"Registrar" means a Person engaged to maintain the Register.
"Warrant Agent" means the party named as such in the preamble of this
Agreement or any successor warrant agent under this Agreement pursuant to
Article 7.
"Warrant Certificate" means a certificate evidencing a Warrant.
"Warrant Shares" means the shares of Common Stock issuable upon exercise of
the Warrants.
"Warrants" has the meaning assigned to such term in the preamble of this
Agreement.
Section 1.02 RULES OF CONSTRUCTION. Unless the context otherwise requires
or except as otherwise expressly provided,
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) ("herein," "hereof" and other words of similar import refer
to this Agreement as a whole and not to any particular Section, Article or other
subdivision;
(iii) all references to Sections, subsections, Articles or
Exhibits refer to Sections, subsections, Articles or Exhibits of or to this
Agreement unless otherwise indicated; and
(iv) references to agreements, instruments, statutes or
regulations, are to such agreements, instruments, statutes or regulations, as
amended from time to time (or to successor statutes and regulations).
3
ARTICLE 2
APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent to act as warrant agent for
the Company in accordance with the express terms and conditions (and no implied
terms or duties) set forth in this Agreement and the Warrant Agent hereby
accepts such appointment.
ARTICLE 3
THE WARRANTS
Section 3.01 FORM AND DATING; LEGENDS. The face of the Warrant Certificates
will be substantially in the form attached hereto as Exhibit A and the reverse
of the Warrant Certificates will be substantially in the form attached hereto as
Exhibit B. The Warrant Certificates may have notations, legends or endorsements
required by law, rules of or agreements with national securities exchanges to
which the Company is subject that do not alter the rights, duties or obligations
of the Warrant Agent. Each Warrant Certificate will be dated the date of its
countersignature. However, to the extent any provision of any Warrant
Certificate conflicts with the express provisions of this Agreement, the
provisions of this Agreement shall govern and be controlling.
Section 3.02 EXECUTION AND COUNTERSIGNATURE. (a) An Officer shall execute
the Warrant Certificates for the Company by facsimile or manual signature in the
name and on behalf of the Company. If an officer whose signature is on a Warrant
Certificate no longer holds that office at the time the Warrant Certificate is
countersigned, the Warrant will still be valid.
(b) A Warrant will not be valid for any purpose or exercisable until
the Warrant Agent manually (or via facsimile) countersigns the Warrant
Certificate, with the signature of the Warrant Agent being conclusive evidence
that the Warrant Certificate has been countersigned under this Agreement. At any
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Warrant Certificates executed by the Company to the
Warrant Agent for countersignature. The Warrant Agent will countersign and
deliver a number of Warrant Certificates for original issue in an aggregate
amount not to exceed the amount stated in the preamble hereof after receipt by
the Warrant Agent of an Officers' Certificate specifying:
(i) the amount of Warrant Certificates to be countersigned and
the date on which the Warrant Certificates are to be countersigned, (ii) whether
the Warrants are to be issued as one or more Global Warrants or Certificated
Warrants, and
(ii) other information the Company may determine to include or
the Warrant Agent may reasonably request.
Section 3.03 REGISTRAR. The Company may appoint one or more Registrars or
may itself act as Registrar. If the Company appoints a Registrar other than the
Warrant Agent, then the Company and the Registrar will enter into an appropriate
agreement implementing the provisions of this Agreement relating to the
obligations to be performed by the Registrar. The Company initially appoints the
Warrant Agent as Registrar.
Section 3.04 REPLACEMENT WARRANT CERTIFICATES. If a mutilated Warrant
Certificate is surrendered to the Warrant Agent or if a Holder delivers to the
Company a sworn affidavit that its Warrant Certificate has been lost, destroyed
or wrongfully taken, then the Company will issue and the Warrant Agent will
countersign a replacement Warrant Certificate. Every replacement Warrant
Certificate is an obligation of the Company and entitled to the benefits of this
4
Agreement. If required by the Warrant Agent or the Company, an indemnity must be
furnished that is sufficient in the judgment of both the Warrant Agent and the
Company to protect the Company and the Warrant Agent from any loss they may
suffer if a Warrant Certificate is replaced. The Company may charge the Holder
for the expenses of the Company and the Warrant Agent in replacing a Warrant
Certificate.
Section 3.05 OUTSTANDING WARRANTS. (a) Warrants outstanding at any time are
all Warrants represented by Warrant Certificates that have been countersigned by
the Warrant Agent except for:
(i) Warrant Certificates cancelled by the Warrant Agent or
delivered for cancellation;
(ii) Warrants exercised by the Holder thereof; and
(iii) any Warrant Certificate that has been replaced pursuant to
Section 3.04.
(b) A Warrant shall not cease to be outstanding because the Company or
one of its Affiliates holds the Warrant, provided that in determining whether
the Holders of the requisite number of the outstanding Warrants have given or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, Warrants owned by the Company or any subsidiary of the
Company will be disregarded and deemed not to be outstanding.
Section 3.06. TEMPORARY WARRANT CERTIFICATES. Until definitive Warrant
Certificates are ready for delivery, the Company may prepare and the Warrant
Agent will countersign temporary Warrant Certificates. Temporary Warrant
Certificates will be substantially in the form of definitive Warrant
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officer executing the temporary
Warrant Certificates, as evidenced by the execution of the temporary Warrant
Certificates. If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates will be exchangeable for definitive Warrant Certificates without
charge to the Holder upon surrender of the temporary Warrant Certificates. Upon
surrender for cancellation of any temporary Warrant Certificates, the Company
will execute and the Warrant Agent will countersign and deliver in exchange
therefor a like amount of definitive Warrant Certificates.
Section 3.07. CANCELLATION. The Company at any time may deliver to the
Warrant Agent for cancellation any Warrant Certificates previously countersigned
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Warrant Agent for cancellation any Warrant
Certificates previously countersigned hereunder which the Company has not
issued. Any Registrar will forward to the Warrant Agent any Warrant Certificates
surrendered to it for transfer, exchange or exercise. The Warrant Agent (and no
one else) will cancel all Warrant Certificates surrendered for transfer,
exchange, exercise or cancellation and dispose of them in accordance with its
normal procedures or the written instructions of the Company. The Company may
not issue new Warrants to replace Warrants evidenced by Warrant Certificates
that have been exercised or delivered to the Warrant Agent for cancellation. The
Registrar shall provide the Company with a list of all Warrant Certificates that
have been cancelled.
Section 3.08. CUSIP AND CINS NUMBERS. The Company in issuing the Warrants
may use "CUSIP" and "CINS" numbers, and the Warrant Agent will use CUSIP numbers
or CINS numbers in notices as a convenience to Holders, the notice to state that
no representation is made as to the correctness of such numbers either as
printed on the Warrant Certificates or as contained in any notice to any Holder.
The Company will promptly notify the Warrant Agent of any change in the CUSIP or
CINS numbers.
5
Section 3.09. REGISTRATION, TRANSFER AND EXCHANGE. (a) The Warrants will be
issued in registered form only, and the Company shall cause the Warrant Agent to
maintain a register (the "Register") of the Warrants, for registering the record
ownership of the Warrants and transfers and exchanges of the Warrants.
(b) Each Global Warrant will be registered in the name of the
Depositary or its nominee and, so long as DTC is serving as the Depositary
thereof, will bear the DTC Legend. A Global Warrant may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. Except as provided in this Section 3.09(b) and in
Section 3.04, a Global Warrant may not be exchanged for another Warrant,
provided, however, that beneficial interests in a Global Warrant may be
transferred by Agent Members in accordance with the applicable rules and
procedures of the Depositary. Agent Members will have no rights under this
Agreement with respect to any Global Warrant held on their behalf by the
Depositary, and the Depositary may be treated by the Company, the Warrant Agent
and any agent of the Company or the Warrant Agent as the absolute owner and
Holder of such Global Warrant for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and otherwise
authorize any Person (including any Agent Member and any Person that holds a
beneficial interest in a Global Warrant through an Agent Member) to take any
action that a Holder is entitled to take under the Warrants, and nothing herein
will impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
security.
(c) Each Global Warrant will be exchanged by the Company for
Certificated Warrants if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Warrant and a
successor Depositary is not appointed by the Company within 90 days after the
date of such notice or (ii) the Company in its sole discretion determines that
the Global Warrants should be exchanged for Certificated Warrants and delivers a
notice to such effect to the Warrant Agent. Upon the occurrence of either of
such events, the Warrant Agent will promptly exchange all beneficial interest in
the Global Warrant for one or more Certificated Warrants registered in the name
of the owner of each beneficial interest, as identified to the Warrant Agent by
the Depositary, and thereupon the Global Warrant will be deemed canceled.
(d) Except as otherwise provided in Section 3.09(b), a Holder may
transfer a Warrant to another Person or exchange a Warrant Certificate for
another Warrant Certificate of the same amount by presenting to the Warrant
Agent a written request therefor stating the name of the proposed transferee or
requesting such an exchange, accompanied by any document required by this
Agreement. The Warrant Agent will promptly register any transfer or exchange
that meets the requirements of this Section 3.09(d) by noting the same in the
Register. No transfer or exchange will be effective as to the Company, the
Warrant Agent and their respective agents until it is registered in the
Register. Prior to the registration of any transfer, the Company, the Warrant
Agent and their respective agents will treat the Person in whose name the
Warrant is registered as the owner and Holder thereof for all purposes, and will
not be affected by notice to the contrary. From time to time the Company will
execute and the Warrant Agent will countersign additional Warrant Certificates
as necessary to permit the registration of a transfer or exchange in accordance
with this Section 3.09(d). All Warrants issued upon transfer or exchange shall
be the duly authorized, executed and delivered Warrants of the Company entitled
to the benefits of this Agreement. No service charge will be imposed in
connection with any transfer or exchange of any Warrant, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than a transfer tax
or other similar governmental charge payable upon exchange pursuant to Section
3.09(c)).
6
(e) If a Warrant Certificate representing a Certificated Warrant is
transferred or exchanged for another Warrant Certificate representing a
Certificated Warrant, the Warrant Agent will (i) cancel the Warrant Certificate
being transferred or exchanged, (ii) deliver one or more new Warrant
Certificates representing the number of Warrants being transferred or exchanged
to the transferee (in the case of a transfer) or the Holder of the canceled
Warrant Certificate (in the case of an exchange), registered in the name of such
transferee or Holder, as applicable, and (iii) if such transfer or exchange
involves less than the entire number of Warrants represented by the canceled
Warrant Certificate, deliver to the Holder thereof one or more Warrant
Certificates representing an aggregate number of Warrants equal to the
untransferred or unexchanged number of the canceled Warrants, registered in the
name of the Holder thereof.
ARTICLE 4
TERMS OF WARRANTS; EXERCISE OF WARRANTS
Section 4.01 TERMS OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant not exercised prior to 5:00 p.m., New York City time,
on February 28, 2008 (the "Expiration Date") shall become void and all rights
thereunder and all rights in respect thereof under this Agreement shall cease as
of such time.
(b) Subject to the terms of this Agreement, each Warrant shall be
exercisable, in full and not in part, at the election of the Holder thereof,
during the period commencing at the opening of business on the Issue Date and
until 5:00 p.m., New York City time on the Expiration Date, and shall entitle
the Holder thereof to receive from the Company one (1) fully paid and
nonassessable share of Common Stock upon exercise of such Warrant and payment of
the Exercise Price then in effect in cash, by wire transfer or by certified or
official check payable to the order of the Company.
(c) In order to exercise all or any of the Warrants, the Holder
thereof must deliver to the Warrant Agent at the Corporate Trust Office (i) the
Warrant Certificates evidencing such Warrants, (ii) the form of election to
purchase on the reverse thereof duly filled in and signed, which signature shall
be medallion guaranteed by an institution which is a member of a Securities
Transfer Association recognized signature guarantee program, and (iii) payment
to the Warrant Agent for the account of the Company of the then-current Exercise
Price, in the manner set forth in Section 4.01(b) for the number of Warrant
Shares in respect of which the Warrants are being exercised.
(d) No fractional Warrant Shares are to be issued upon any exercise of
a Warrant, but rather cash in lieu of fractional shares shall be delivered to
the Holder as provided in Section 6.02.
(e) If fewer than all the Warrants represented by a Warrant
Certificate are exercised, such Warrant Certificate shall be surrendered and a
new Warrant Certificate for the number of Warrants which were not exercised
shall be executed by the Company and delivered to the Warrant Agent, and the
Warrant Agent shall countersign the new Warrant Certificate, registered in such
name or names as may be directed in writing by the Holder, and shall deliver the
new Warrant Certificate to the Person or Persons entitled to receive the same.
(f) All Warrant Certificates surrendered upon exercise of Warrants
shall be cancelled by the Warrant Agent. Such cancelled Warrant Certificates
shall then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies received by
7
the Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
(g) The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at the Corporate Trust Office. The Company shall
supply the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may reasonably request.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.01. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain an
office or agency where Warrants may be surrendered for registration of transfer
or exchange or for presentation for exercise. The Company hereby initially
designates the Corporate Trust Office of the Warrant Agent as such office of the
Company. The Company will give prompt written notice to the Warrant Agent of any
change in the location of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Warrant Agent with the address thereof, such surrenders and presentations may be
made or served to the Warrant Agent.
The Company may also from time to time designate one or more other offices
or agencies where Warrant Certificates may be surrendered or presented for any
of such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Warrant Agent of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 5.02. PAYMENT OF TAXES. The Company will pay all documentary, stamp
or similar issue or transfer taxes and other governmental charges, if any, in
respect of the issuance or delivery of Warrant Shares upon the exercise of
Warrants; provided, that neither the Company nor the Warrant Agent shall be
required to pay any taxes or charges which may be payable in respect of any
transfer involved in the issue of any Warrants or any Warrant Shares in a name
other than that of the Holder of a Warrant surrendered upon exercise, and the
Company shall not be required to issue or deliver such Warrant Shares unless or
until the Person or Persons requesting the issuance thereof shall have paid to
the Company the amount of such taxes or charges or shall have established to the
satisfaction of the Company that such taxes or charges have been paid.
Section 5.03. RESERVATION OF WARRANT SHARES.
(a) The Company will at all times reserve and keep available for
issuance and delivery, free and clear of all preemptive rights, such number of
shares of its authorized but unissued Common Stock or other securities of the
Company from time to time issuable upon exercise of the Warrants as will be
sufficient to permit the exercise in full of all outstanding Warrants.
(b) Before taking any action which would cause an adjustment pursuant
to Section 6.01 hereof to reduce the Exercise Price below the then par value (if
any) of its Common Stock, the Company will take any corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
(c) The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, and
free of preemptive rights with respect to the issuance thereof.
8
Section 5.04. STOCK EXCHANGE LISTINGS. The Company will from time to time
use commercially reasonable efforts to take all action which may be necessary so
that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, are listed on the principal securities exchanges, automated quotation
systems or other markets within the United States of America, if any, on which
other shares of Common Stock are then listed.
ARTICLE 6
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE
Section 6.01. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Article 6.
(a) Stock Dividends, Subdivisions and Combinations.
Except as otherwise provided in Section 6.01(b), if the Company (i) pays a
dividend or makes a distribution on its Common Stock in shares of its Common
Stock, (ii) subdivides its outstanding shares of Common Stock into a greater
number of shares, or (iii) combines its outstanding shares of Common Stock into
a smaller number of shares, then (A) the number of shares of Common Stock for
which a Warrant is exercisable immediately after the occurrence of any such
event shall be adjusted to equal the number of shares of Common Stock that a
record holder of the same number of shares of Common Stock for which a Warrant
is exercisable immediately prior to the occurrence of such event would own or be
entitled to receive after the happening of such event and (B) the Exercise Price
shall be adjusted to equal (I) the Exercise Price in effect prior to such
adjustment multiplied by the number of shares of Common Stock for which a
Warrant is exercisable prior to the adjustment, divided by (II) the number of
shares for which a Warrant is exercisable immediately after such adjustment.
The adjustment under this Section 6.01(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision or
combination.
(b) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 6.01 shall be
made to the nearest cent or to the nearest 1/1,000th of a share, as the case may
be.
(c) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 6.03.
(d) Reorganization, Reclassification, Merger, Consolidation or Sale.
After the date hereof, if the Company reorganizes or reclassifies its
Capital Stock, consolidates or merges with or into, or transfers or leases all
or substantially all its assets to, any Person, upon consummation of such
transaction each Warrant shall automatically become exercisable solely for the
kind and amount of securities, cash or other assets which the Holder would have
owned immediately after the reorganization, reclassification, consolidation,
merger, transfer or lease if the Holder had exercised the Warrant immediately
before the effective date of the transaction. Concurrently with the consummation
9
of such transaction, the corporation formed by or surviving any such
consolidation or merger if other than the Company, or the Person to which such
sale or conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section 6.01(d). The successor company shall mail to Holders a notice describing
the supplemental Warrant Agreement. This Section 6.01(d) shall not apply to a
transaction to which Section 6.01(a) applies.
(e) Form of Warrant Certificates.
Irrespective of any adjustments in the Exercise Price or the number or kind
of shares purchasable upon the exercise of the Warrants, Warrant Certificates
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrant Certificates initially
issuable pursuant to this Agreement.
Section 6.02. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional Warrant Shares or scrip representing fractional shares on the
exercise of Warrants. If more than one Warrant shall be exercised in full at the
same time by the same Holder, the number of full Warrant Shares which shall be
issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Warrants so
presented. If any fraction of a Warrant Share would, except for the provisions
of this Section 6.02, be issuable on the exercise of any Warrants (or specified
portion thereof), the Company shall pay an amount in cash equal to the Daily
Price per Warrant Share, as determined on the Business Day immediately preceding
the date the Warrant is presented for exercise, multiplied by such fraction,
computed to the nearest whole U.S. cent.
Section 6.03. NOTICES TO HOLDERS. Upon any adjustment pursuant to Section
6.01, the Company shall promptly thereafter (i) cause to be filed with the
Warrant Agent an Officer's Certificate setting forth the Exercise Price after
such adjustment and setting forth in reasonable detail the method of calculation
and the facts upon which such calculations are based and setting forth the
number of Warrant Shares (or portion thereof) or the kind and amount of
securities, cash or other assets to which a Holder is entitled after such
adjustment upon exercise of a Warrant and payment of the adjusted Exercise
Price, which certificate shall be conclusive evidence of the correctness of the
matters set forth therein, and (ii) cause to be given to each of the Holders, at
the address of such Holder appearing in the Register, written notice of such
adjustments by first-class mail, postage prepaid. Where appropriate, such notice
may be given in advance and included as a part of the notice required to be
mailed under the other provisions of this Article 6. The Warrant Agent will not
be deemed to have knowledge of any adjustment required by this Article 6 without
receiving such Officer's Certificate.
Section 6.04. NO RIGHTS AS STOCKHOLDERS. Nothing contained in this
Agreement or the Warrant Certificates shall be construed as conferring upon the
holders of any Warrant the right to vote or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or the election of
directors of the Company or any other matter, or any rights whatsoever,
including the right to receive dividends, as stockholders of the Company.
ARTICLE 7
WARRANT AGENT
Section 7.01. WARRANT AGENT. The Warrant Agent undertakes the express
duties and obligations (and no implied duties or obligations) imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the Holders, by their acceptance of the Warrants, shall be bound:
10
(a) The Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith (as each is determined by a final
non-appealable order of a court of competent jurisdiction). Notwithstanding
anything in this Agreement to the contrary, in no event shall the Warrant Agent
be liable for special, punitive, incidental, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Warrant Agent has been advised of the likelihood of such loss or damage
and regardless of the form of the action. Any liability of the Warrant Agent
under this Agreement shall be limited to the aggregate amount of annual fees
paid by the Company to the Warrant Agent.
(b) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
(c) The Warrant Agent will not be under any responsibility or
liability in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the Warrant
Agent) or in respect of the validity or execution of any Warrant Certificate
(except the due countersignature thereof by the Warrant Agent); nor will it be
responsible or liable for any breach by the Company of any covenant or condition
contained in this Agreement or in any Warrant Certificate; nor will it be
responsible or liable for any adjustment required under the provisions of
Article 6 hereof or responsible for the manner, method or amount of any
adjustment or the ascertaining of the existence of facts that would require any
adjustment (except with respect to the exercise of Warrants evidenced by Warrant
Certificates after actual written notice of any adjustment); nor will it be
responsible or liable for any amendment or supplement made to this Agreement
that is in violation of Section 8.02(b) or 8.02(c); nor will it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of stock or other securities to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether
any Warrant Shares or other securities will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(d) The Company will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing by the Warrant Agent of the
provisions of this Agreement.
(e) The Warrant Agent will not be under any duty or responsibility to
insure compliance with any applicable federal or state securities laws in
connection with the issuance, transfer or exchange of Warrant Certificates.
(f) In the absence of gross negligence, willful misconduct or bad
faith on the part of the Warrant Agent (as each is determined by a final
non-appealable order of a court of competent jurisdiction), the Warrant Agent
shall not be liable and will be fully protected in acting upon any written
notice, resolution, certificate, statement, instrument, opinion, report,
instruction, direction, request or other communication which the Warrant Agent
believes to be genuine and to have been signed or delivered by the proper
Person, and shall have no duty to inquire into or investigate the validity,
accuracy or content thereof. The Warrant Agent shall not take any instructions
or directions except those given in accordance with this Agreement. Whenever in
the performance of its duties under this Agreement the Warrant Agent deems it
necessary or desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
may be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Warrant Agent; and such Officer's Certificate will
11
be full authorization to the Warrant Agent for any action taken, suffered or
omitted by it under the provisions of this Agreement in reliance upon such
Officer's Certificate.
(g) In the event the Warrant Agent, in its sole discretion, believes
any ambiguity or uncertainty exists hereunder or in any notice, instruction,
direction, request or other communication, paper or document received by the
Warrant Agent hereunder, or is uncertain of any action to take hereunder, the
Warrant Agent shall refrain from taking any action, and shall be fully protected
and shall not be liable in any way to the Company or any Holder or other Person
for refraining from taking such action, unless the Warrant Agent receives an
Officer's Certificate which eliminates such ambiguity or uncertainty to the
satisfaction of Warrant Agent.
(h) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, accountants, agents or other experts, and the Warrant
Agent will not be answerable or accountable for any act, default, neglect or
unintentional misconduct of any such attorneys or agents or for any loss to the
Company or the holders of Warrants resulting from any such act, default, neglect
or unintentional misconduct, absent gross negligence, willful misconduct or bad
faith (as each is determined by a final non-appealable order of a court of
competent jurisdiction) in the selection and continued employment thereof.
(i) All rights of action under this Agreement or under any of the
Warrant Certificates may be enforced by the Warrant Agent without the possession
of any of the Warrants or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding instituted
by the Warrant Agent shall be brought in its name as Warrant Agent and any
recovery of judgment shall be for the ratable benefit of the Holders, as their
respective rights or interests may appear.
(j) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Company or an employee of the Warrant Agent), and the advice of
such counsel or any Opinion of Counsel will be full and complete authorization
and protection to the Warrant Agent in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel.
(k) The Warrant Agent shall not incur any liability for not performing
any act, duty, obligation or responsibility by reason of any occurrence beyond
the control of the Warrant Agent (including without limitation any act or
provision of any present or future law or regulation or governmental authority,
any act of God, war, civil disorder or failure of any means of communication).
(l) The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any Warrant Certificate
countersigned by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
issuance or exercise of Warrants. The Warrant Agent shall have no duty,
liability or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in any Warrant
Certificate or in case of the receipt of any written demand from a Holder 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 8.01 hereof,
to make any demand upon the Company.
(m) The Warrant Agent shall act hereunder as agent solely for the
Company and not for the Holders, and its duties shall be determined solely by
the provisions hereof.
(n) The rights and obligations contained in this Section 7.01 shall
survive the termination of this Agreement and the resignation or removal of the
Warrant Agent.
12
Section 7.02. INDIVIDUAL RIGHTS OF WARRANT AGENT. The Warrant Agent, and
any stockholder, director, officer or employee of the Warrant Agent, may buy,
sell or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or any Affiliate
thereof or otherwise act as fully and freely as though it were not Warrant Agent
under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other Person.
Section 7.03. COMPENSATION AND INDEMNIFICATION OF WARRANT AGENT. The
Company will promptly pay to the Warrant Agent reasonable fees and expenses to
be agreed upon by the Company and the Warrant Agent and its reasonable expenses
and its reasonable counsel fees and expenses and other disbursements incurred in
the preparation, delivery, administration, execution and amendment of this
Agreement and the exercise and performance of its duties hereunder. The Company
will indemnify the Warrant Agent for, and hold it harmless against, any loss,
liability, suit, action, proceeding, damage, judgment, claim, settlement, cost
or expense, incurred without gross negligence, willful misconduct or bad faith
(as each is determined by a final non-appealable order of a court of competent
jurisdiction) on the part of the Warrant Agent, for any action taken, suffered
or omitted by the Warrant Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability arising therefrom, directly or indirectly. No
provision of this Agreement will require the Warrant Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance of its
duties hereunder, or in the exercise of its rights or powers, unless it receives
indemnity satisfactory to it against any loss, liability or expense. The rights
and obligations contained in this Section 7.03 shall survive the termination of
this Agreement and the resignation or removal of the Warrant Agent.
Section 7.04. REPLACEMENT OF WARRANT AGENT. (a) The Warrant Agent may
resign at any time by 30 days' prior written notice to the Company or may be
removed at any time by the Company upon 30 days' prior written notice. A
resignation or removal of the Warrant Agent and appointment of a successor
Warrant Agent will become effective only upon the successor Warrant Agent's
acceptance of appointment as provided in Section 7.04(b).
(b) Upon delivery by the successor Warrant Agent of a written
acceptance of its appointment to the retiring Warrant Agent and to the Company,
(i) the retiring Warrant Agent will transfer all property held by it as Warrant
Agent to the successor Warrant Agent, (ii) the resignation or removal of the
retiring Warrant Agent will become effective, and (iii) the successor Warrant
Agent will have all the rights, powers and duties of the Warrant Agent under
this Agreement. Upon request of any successor Warrant Agent, the Company will
execute any and all instruments for fully vesting in and confirming to the
successor Warrant Agent all such rights, powers and duties. The Company will
give notice of any resignation and any removal of the Warrant Agent and each
appointment of a successor Warrant Agent to all Holders, and include in the
notice the name of the successor Warrant Agent and the address of its Corporate
Trust Office.
Section 7.05. SUCCESSOR WARRANT AGENT BY MERGER. (a) If the Warrant Agent
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving
or transferee Person without any further act will be the successor Warrant Agent
with the same effect as if the successor Warrant Agent had been named as the
Warrant Agent in this Agreement.
(b) If, at the time such successor to the Warrant Agent shall succeed
to the agency created by this Agreement, any of the Warrant Certificates have
been countersigned but not delivered, the successor Warrant Agent may adopt the
countersignature of the original Warrant Agent; and if any of the Warrant
Certificates shall not have been countersigned, the successor Warrant Agent may
13
countersign such Warrant Certificates, and in all such cases such Warrant
Certificates shall have the full force and effect provided in the Warrant
Certificates and in this Agreement.
Section 7.06. HOLDER LISTS. The Warrant Agent shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders. If the Warrant Agent is not the Registrar,
the Company shall promptly furnish to the Warrant Agent at such times as the
Warrant Agent may request in writing, a list in such form and as of such date as
the Warrant Agent may reasonably require of the names and addresses of the
Holders.
ARTICLE 8
MISCELLANEOUS.
Section 8.01 NOTICES. (a) Any notice or communication to the Company will
be deemed given if in writing (i) when delivered in person, or (ii) five days
after mailing when mailed by registered or certified mail, or (iii) when sent by
facsimile transmission, with transmission confirmed. Any notice to the Warrant
Agent will be effective only upon receipt. In each case the notice or
communication should be addressed as follows:
if to the Company:
WHX Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: 000-000-0000
if to the Warrant Agent:
Computershare Investor Services
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
The Company or the Warrant Agent by notice to the other may designate
additional or different addresses for subsequent notices or communications. If
the Warrant Agent shall receive any written notice or demand addressed to the
Company by any Holder pursuant to the provisions of the Warrant Certificate, the
Warrant Agent shall promptly forward such notice or demand to the Company.
(b) Except as otherwise expressly provided with respect to published
notices, any notice or communication to a Holder will be deemed given when
mailed to the Holder at its address as it appears on the Register by first class
mail or, as to any Global Warrant registered in the name of DTC or its nominee,
as agreed by the Company, the Warrant Agent and DTC. Copies of any notice or
communication to a Holder, if given by the Company, will be mailed to the
Warrant Agent at the same time. Defect in mailing a notice or communication to
any particular Holder will not affect its sufficiency with respect to other
Holders.
Section 8.02. SUPPLEMENTS AND AMENDMENTS. (a) The Company and the Warrant
Agent may amend or supplement this Agreement or the Warrant Certificates without
notice to or the consent of any Holder
14
(i) to cure any ambiguity, defect or inconsistency in the
Agreement or the Warrant Certificates;
(ii) to evidence and provide for the acceptance of an appointment
hereunder by a successor Warrant Agent; or
(iii) to make any other change that does not adversely affect the
rights of any Holder.
(b) Except as otherwise provided in subsections (a) above or (c)
below, the Company and the Warrant Agent may amend this Agreement and the
Warrant Certificates with the written consent of the Holders of a majority of
the outstanding Warrants, and the Holders of a majority of the outstanding
Warrants by written notice to the Warrant Agent may waive future compliance by
the Company with any provision of this Agreement or the Warrant Certificates.
(c) Notwithstanding the provisions of subsection (b) above, without
the consent of each Holder affected, an amendment, supplement or waiver may not
(i) increase the Exercise Price except for adjustments provided
for in Article 6;
(ii) decrease the number of Warrant Shares or other securities or
property issuable upon exercise of the Warrants except, in each case, for
adjustments provided for in Article 6; or
(iii) designate an earlier Expiration Date.
(d) It is not necessary for Holders to approve the particular form of
any proposed amendment, supplement or waiver, but is sufficient if their consent
approves the substance thereof.
(e) An amendment, supplement or waiver under this Section 8.02 will
become effective on receipt by the Warrant Agent of written consents from the
Holders of the requisite percentage of the outstanding Warrants. After an
amendment, supplement or waiver under this Section 8.02 becomes effective, the
Company will send to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to send such
notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such amendment, supplement or waiver.
(f) After an amendment, supplement or waiver becomes effective, it
will bind every Holder unless such amendment, supplement or waiver is of the
type described in Section 8.02(c). If the amendment, supplement or waiver is of
the type described in Section 8.02(c), then the amendment, supplement or waiver
will bind each Holder that has consented to it and every subsequent Holder of a
Warrant with respect to which consent was granted.
(g) If an amendment, supplement or waiver changes the terms of a
Warrant, the Warrant Agent may require the Holder to deliver the Warrant
Certificate representing such Warrant to the Warrant Agent so that the Warrant
Agent may place an appropriate notation of the new terms on the Warrant
Certificate and return it to the Holder, or exchange it for a new Warrant
Certificate that reflects the new terms. The Warrant Agent may also place an
appropriate notation on any Warrant Certificate thereafter countersigned.
However, the effectiveness of the amendment, supplement or waiver is not
affected by any failure to annotate or exchange Warrant Certificates as provided
in this Section 8.02(g).
15
(h) The Warrant Agent is entitled to receive, and will be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Section 8.02 is
authorized or permitted by this Agreement. If the Warrant Agent has received
such an Opinion of Counsel, the Warrant Agent shall sign the amendment,
supplement or waiver so long as the same does not adversely affect the rights of
the Warrant Agent.
Section 8.03. GOVERNING LAW. This Agreement, the Warrant Certificates and
the Warrants shall be governed by, and construed in accordance with, and all
disputes arising out of or relating to this Agreement, the Warrant Certificates
and the Warrants will be determined in accordance with, the internal laws of the
State of New York, without giving effect to the conflicts of laws principles
thereof.
Section 8.04. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Agreement
may not be used to interpret any other agreement of the Company, and no such
other agreement may be used to interpret this Agreement.
Section 8.05. SUCCESSORS. This Agreement will inure to the benefit of and
bind the Company, the Warrant Agent and their respective successors and the
Holders and their respective transferees.
Section 8.06. COUNTERPARTS; MULTIPLE ORIGINALS. The parties may sign one or
more counterparts of this Agreement all of which together shall constitute a
single agreement. The parties may sign any number of copies of this Agreement.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
Section 8.07. SEPARABILITY. In case any provision in this Agreement or in
the Warrant Certificates is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 8.08. TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
headings of the Articles, Sections and subsections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part of
this Agreement and in no way modify or restrict any of the terms and provisions
of this Agreement.
Section 8.09. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Warrant Agent and
the Holders any legal or equitable right, remedy or claim under this Agreement.
Section 8.10. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE COMPANY AND THE WARRANT AGENT HEREBY, AND THE HOLDERS BY
THEIR ACCEPTANCE OF THE WARRANTS THEREBY, IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE WARRANT
CERTIFICATES OR THE WARRANTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
WHX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
EQUISERVE TRUST COMPANY, N.A.,
as Warrant Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
17
EXHIBIT A
[Form of Face of Warrant Certificate]
WHX CORPORATION
WARRANT CERTIFICATE
EVIDENCING WARRANTS TO PURCHASE SHARES OF COMMON STOCK
(CUSIP NO. 929248 12 8)
No. ______ Warrants
This Warrant Certificate certifies that [__________], or its registered
assigns, is the registered holder of warrants (the "Warrants") to purchase
Common Stock, par value $0.01 per share (the "Common Stock"), of WHX
Corporation, a Delaware corporation. The Warrants represented by this Warrant
Certificate entitle the registered holder upon exercise at any time from 9:00
a.m. on the Issue Date until 5:00 p.m. New York City Time on February 28, 2008
(the "Expiration Date"), to receive from the Company an aggregate of such number
of fully paid and nonassessable shares of Common Stock set forth above (the
"Warrant Shares") at an initial exercise price (the "Exercise Price") of $ 11.20
per share payable upon surrender of this Warrant Certificate at the office or
agency of the Warrant Agent, subject to the conditions set forth herein and in
the Warrant Agreement referred to on the reverse hereof. The Exercise Price and
number of Warrant Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Warrant
Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed below manually or by facsimile by its duly authorized officer.
Dated: , 200_
WHX CORPORATION
By: ________________________________
Name:
Title:
Countersigned:
EQUISERVE TRUST COMPANY, N.A.,
as Warrant Agent
By: _________________________________
Name:
Title:
A-1
EXHIBIT B
[Form of Reverse of Warrant Certificate]
WHX CORPORATION
[REVERSE OF WARRANT CERTIFICATE]
1. Warrant Agreement.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued or to be issued pursuant to a Warrant
Agreement dated as of July 29, 2005 (the "Warrant Agreement"), between the
Company and EquiServe Trust Company, N.A., as warrant agent (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated by reference in and made
a part of this instrument and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Warrant Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Warrants. To the
extent permitted by law, in the event of an inconsistency or conflict between
the terms of this Warrant Certificate and the Warrant Agreement, the terms of
the Warrant Agreement will prevail. Capitalized terms used in this Warrant
Certificate that are defined in the Warrant Agreement shall have the meanings
provided in the Warrant Agreement for purposes of this Warrant Certificate,
unless otherwise defined in this Warrant Certificate.
2. Exercise.
Warrants may be exercised at any time on or after 9:00 a.m. on the Issue
Date and on or before 5:00 p.m. New York City time on the Expiration Date. In
order to exercise all or any of the Warrants represented by this Warrant
Certificate, the holder must deliver to the Warrant Agent, at its Corporate
Trust Office set forth in the Warrant Agreement, this Warrant Certificate and
the form of election to purchase below duly completed, which signature shall be
medallion guaranteed by an institution which is a member of a Securities
Transfer Association recognized signature guarantee program, and upon payment to
the Warrant Agent for the account of the Company of the Exercise Price in the
manner set forth in the Warrant Agreement for the number of Warrant Shares in
respect of which such Warrants are then exercised.
No Warrant may be exercised after 5:00 p.m., New York City time on the
Expiration Date, and to the extent not exercised by such time the Warrants shall
become void.
3. Adjustments.
The Warrant Agreement provides that, upon the occurrence of certain events,
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. The Warrant Agreement also provides that the number of
shares of Common Stock issuable upon the exercise of each Warrant shall be
adjusted in certain events.
4. No Fractional Shares.
No fractions of a share of Common Stock will be issued upon the exercise of
any Warrant, but the Company will pay the cash value thereof determined as
provided in the Warrant Agreement.
5. Registered Form; Transfer and Exchange.
The Warrants are in registered form. Warrant Certificates, when surrendered
at the office of the Warrant Agent by the registered holder thereof in person or
by legal representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge (except as specified in the
Warrant Agreement), for another Warrant Certificate or Warrant Certificates of
like tenor evidencing in the aggregate a like number of Warrants.
B-1
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) hereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
6. Countersignature.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
7. Governing Law.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
8. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).
A copy of the Warrant Agreement may be obtained by the holder hereof upon
written request to the Company.
B-2
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _______ shares of Common
Stock and herewith tenders payment for such shares to the order of WHX
CORPORATION, in the amount of $________ in accordance with the terms hereof.
------------------------------------------
Signature
Date:
------------------------------------------
Signature Guaranteed
Date:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Association Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Warrant
Agent in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
B-3
SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL WARRANTS
The following exchanges of a part of this Global Warrant have been made:
NUMBER OF WARRANTS IN
AMOUNT OF DECREASE AMOUNT OF INCREASE IN THIS GLOBAL WARRANT
IN NUMBER OF WARRANTS NUMBER OF WARRANTS IN FOLLOWING SUCH DECREASE
DATE OF EXCHANGE IN THIS GLOBAL WARRANT THIS GLOBAL WARRANT OR INCREASE
----------------------------------------------------------------------------------------------------------
B-4
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
(Please print in block letters or typewrite name and address, including zip
code, of assignee)
the within Warrant Certificate and all rights thereunder, hereby irrevocably
constituting and appointing as attorney to transfer the Warrants represented by
this Warrant Certificate on the books of the Company with full power of
substitution in the premises.
Date:
Seller
By: _____________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee: ______________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Association Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
B-5
EXHIBIT C
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE WARRANT AGREEMENT.
C-1
