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QUAKER HOLDING CO.
__________ Units Consisting of
$_________ Aggregate Principal Amount of
___% Senior Discount Debentures due 2008 and Warrants to
Purchase _________ Shares of Common Stock
WARRANT AGREEMENT
Dated as of August ___, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY
Warrant Agent
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WARRANT AGREEMENT dated as of August ___, 1997 between Quaker Holding
Co., a Delaware corporation ("Quaker"), and State Street Bank and Trust
Company, as warrant agent (the "Warrant Agent").
WHEREAS, Quaker proposes to issue warrants (the "Warrants") to
initially purchase up to an aggregate of ________ shares of Common Stock, par
value $.01 per share (the "Quaker Common Stock"), of Quaker (the Quaker Common
Stock issuable on exercise of the Warrants being referred to herein as the
"Quaker Warrant Shares"), in connection with the offering (the "Offering") by
Quaker of _______ Units (the "Units"), each consisting of $1,000 principal
amount at maturity of Quaker's ___% Senior Discount Debentures due 2008 (the
"Debentures") and _____ Warrants, each Warrant initially representing the
right to purchase _____ Quaker Warrant Shares.
WHEREAS, the Units are being issued and sold in connection with the
execution of an Agreement and Plan of Merger, as amended (the "Merger
Agreement"), dated as of May 4, 1997, by and between Quaker and DecisionOne
Holdings Corp. ("Holdings") and the Merger Agreement provides, among other
things, for the merger of Quaker with and into Holdings (the "Merger").
WHEREAS, at the effective time of the Merger (the "Effective Time"),
each share of Quaker Common Stock will become one share of common stock of
Holdings, par value $.01 per share ("Holdings Common Stock"), each Warrant
will by its terms become exercisable to initially purchase ________ shares of
Holdings Common Stock (the "Holdings Warrant Shares") and Holdings will
succeed to the obligations of Quaker hereunder and with respect to the
indenture relating to the Debentures (the "Indenture"), the Debentures and the
Warrants.
WHEREAS, immediately subsequent to the Effective Time, Holdings will
authorize, execute and deliver an assumption agreement pursuant to which
Holdings will assume all of the obligations of Quaker under the Warrants and
the Warrant Agreement.
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with
the issuance of Warrant Certificates (as defined) and other matters as
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
As used herein, the "Company" shall refer to Quaker prior to the
Merger and to Holdings from and after the Effective Time. As used herein,
"Common Stock" shall refer to Quaker Common Stock prior to the Merger and to
Holdings Common Stock from and after the Effective Time. As used herein, the
term "Warrant Shares" shall refer to the Quaker Warrant Shares prior to the
Merger and the Holdings Warrant Shares from and after the Effective Time.
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only and shall be substantially in the
form set forth in Exhibit A attached hereto and shall, prior to the Separation
Date (as defined herein), bear the legend set forth in Exhibit B attached
hereto.
The Warrants initially will be issued in global form (the "Global
Warrants"), substantially in the form of Exhibit A attached hereto (including
the text referred to in footnotes 1 and 2 thereto). The Global Warrant shall
represent such of the outstanding Warrants as shall be specified therein and
shall provide that it shall represent the aggregate amount of outstanding
Warrants from time to time endorsed thereon and that the aggregate amount of
outstanding Warrants represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and exercises. Any endorsement
of the Global Warrant to reflect the amount of any increase or decrease in the
amount of outstanding Warrants represented thereby shall be made by the
Warrant Agent or the depositary with respect to the Global Warrants (the
"Depositary") in accordance with instructions given by the holder thereof. The
Company initially appoints The Depository Trust Company ("DTC") to act as
Depositary with respect to the Warrants in global form.
Each Global Warrant shall bear the following legend on the face
thereof:
"Unless and until it is exchanged in whole or in part for Warrants in
definitive form, this Warrant may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. The Depository
Trust Company shall act as the Depositary until a successor shall be
appointed by the Company. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), 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 such other name as
may be requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or such other entity as may be
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein."
Beneficial owners of interests in a Global Warrant may receive
Warrants in definitive form (the "Definitive Warrants"), substantially in the
form of Exhibit A attached hereto (but without the text referred to in
footnotes 1 and 2 thereto) in the name of such beneficial owners in accordance
with the procedures of the Warrant Agent and the Depositary. In connection
with the execution and delivery of such Definitive Warrants, the Warrant Agent
shall reflect on its books and records a decrease in the principal amount of
the relevant Global Warrant equal to the number of such Definitive Warrants
and the Company shall execute and the Warrant Agent shall countersign and
deliver one or more Definitive Warrants in an equal aggregate number.
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SECTION 3. Execution of Warrant Certificates. (a) Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board, Chief Executive Officer, its President or a Vice President and by its
Secretary or an Assistant Secretary. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, Chief Executive Officer, President, Vice
President, Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Warrant Certificates and for that purpose the Company may
adopt and use the facsimile signature of any person who shall have been
Chairman of the Board, Chief Executive Officer, President, Vice President,
Secretary or Assistant Secretary, notwithstanding the fact that at the time
the Warrant Certificates shall be countersigned and delivered or disposed of
he shall have ceased to hold such office. 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.
(b) 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 by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not
ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by any person who, at the actual date of the
execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the
execution of this Warrant Agreement any such person was not such officer.
(c) Warrant Certificates shall be dated the date of countersignature
by the Warrant Agent.
SECTION 4. Registration and Countersignature. (a) The Warrant Agent,
on behalf of the Company, shall number and register the Warrant Certificates
in a register as they are issued by the Company.
(b) Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the
Board, the Chief Executive Officer, the President, a Vice President, the
Treasurer or the Controller of the Company, initially countersign, issue and
deliver Warrant Certificates entitling the holders thereof to purchase not
more than the number of Warrant Shares referred to above in the first recital
hereof and shall countersign and deliver Warrant Certificates as otherwise
provided in this Agreement.
(c) The Company and the Warrant Agent may deem and treat the
registered holder(s) of the Warrant Certificates as the absolute owner(s)
thereof (notwithstanding any notation of ownership or other writing thereon
made by anyone) for all purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. (a) The Warrant
Certificates shall be issued in registered form only. The Company shall cause
to be kept at the office of the Warrant Agent a register in which, subject to
such reasonable regulations as it may prescribe, the
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Company shall provide for the registration of Warrant Certificates and
transfers or exchanges of Warrant Certificates as provided in this Agreement.
All Warrant Certificates issued upon any registration of transfer or exchange
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 registration of
transfer or exchange.
A holder may transfer its Warrants only by written
application to the Warrant Agent stating the name of the proposed transferee
and otherwise complying with the terms of this Agreement. No such transfer
shall be effected until, and such transferee shall succeed to the rights of a
holder only upon, final acceptance and registration of the transfer by the
Warrant Agent in the register. Prior to the registration of any transfer of
Warrants by a holder as provided herein, the Company, the Warrant Agent, and
any agent of the Company may treat the person in whose name the Warrants are
registered as the owner thereof for all purposes and as the person entitled to
exercise the rights represented thereby, any notice to the contrary
notwithstanding. Furthermore, any holder of a Global Warrant shall, by
acceptance of such Global Warrant, agree that transfers of beneficial
interests in such Global Warrant may be effected only through a book-entry
system maintained by the holder of such Global Warrant (or its agent), and
that ownership of a beneficial interest in the Warrants represented thereby
shall be required to be reflected in a book-entry. When Warrant Certificates
are presented to the Warrant Agent with a request to register the transfer or
to exchange them for an equal amount of Warrants of other authorized
denominations, the Warrant Agent shall register such transfer or make such
exchange as requested if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall execute
Warrant Certificates at the Warrant Agent's request. No service charge shall
be made for any registration of transfer or exchange of Warrants, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer of Warrants.
(b) The Global Warrants initially shall (i) be registered in the name
of the Depositary for such Global Warrants or the nominee of such Depositary,
(ii) be delivered to the Warrant Agent as custodian for such Depositary and
(iii) bear legends as set forth in Section 2 hereof. Members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Agreement with respect to the Global Warrants, as the case may be, held
on their behalf by the Depositary or the Warrant Agent as its custodian, 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 of such Global
Warrant for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Warrant Agent or any agent of the
Company or the Warrant Agent, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or 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 Warrants.
(c) Transfers of a Global Warrant shall be limited to transfers of
such Global Warrant in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in the
Global Warrants may be transferred in accordance with the rules and procedures
of the Depositary. Certificated Warrants shall be issued and transferred to
all beneficial owners in exchange for their beneficial interests in the Global
Warrant if the Depositary notifies
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the Company that it is unwilling or unable to continue as Depositary for any
such Global Warrant and a successor depositary is not appointed by the Company
within 120 days of such notice.
(d) In connection with the transfer of the entire Global Warrant to
the beneficial owners thereof pursuant to paragraph (c) above, the Global
Warrant shall be surrendered to the Warrant Agent for cancellation, and the
Company shall execute, and the Warrant Agent shall countersign and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Global Warrant, Definitive Warrants of authorized
denominations representing, in the aggregate, the number of Warrants
theretofore represented by the Global Warrant.
(e) The registered holder of a Global Warrant may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a holder is
entitled to take under this Agreement or the Warrants.
(f) The Warrant Agent shall retain copies of all letters, notices and
other written communications received pursuant to this Section 5. The Company
shall have the right to inspect and make copies of all such letters, notices
or other written communications at any reasonable time upon the giving of
reasonable written notice to the Warrant Agent.
(g) Any Warrant Certificate surrendered for registration of transfer,
exchange or exercise of the Warrants represented thereby shall, if surrendered
to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by the Warrant Agent and shall not be reissued by the
Company and, except as provided in this Section 5 in case of an exchange,
Section 6 hereof in case of the exercise of less than all the Warrants
represented thereby or Section 8 hereof in case of a mutilated Warrant
Certificate, no Warrant Certificate shall be issued hereunder in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of such cancelled Warrant Certificates as the Company may direct.
(h) The Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of this Section 5 and of Section 4 hereof, the
new Warrant Certificates required pursuant to the provisions of this Section
5.
(i) Notwithstanding the provisions of Section 5(a), until Separated
(as defined herein) each Warrant Certificate will be held by the Trustee, as
custodian for the registered holders of each Debenture or Debenture in global
form, and will be registered in the name of the registered holder of such
Debenture initially in the amount specified to the Warrant Agent by the
Company. Such holder may, at any time, on or after the Separation Date (as
defined herein), at its option, by notice to the Trustee elect to separate
and/or separately transfer the Debentures and the Warrants represented by such
Debenture or Debenture in global form containing a Warrant Endorsement (as
defined in the Indenture), in whole or in part, for a definitive Warrant
Certificate or Warrant Certificates or a beneficial interest in a Global
Warrant evidencing the underlying Warrants and for a Debenture or Debentures
or a beneficial interest in a global Debenture of a like aggregate
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principal amount at maturity of authorized denominations and not containing a
Warrant Endorsement in accordance with the Indenture (such surrender and
exchange being referred to herein as a "Separation" and the related Warrants
being referred to as "Separated"); provided that no delay or failure on the
part of the Trustee or the Warrant Agent to exchange such Warrant Certificate
and Debenture or Debentures shall affect the Separation of the Debentures and
the Warrants or their separate transferability. Prior to Separation, record
ownership of the Warrants will be evidenced by the certificates for Debentures
or a global Debenture registered in the names of the holders of the Debentures
or global Debenture, which certificates or global Debenture will bear thereon
a Warrant Endorsement substantially in the form set forth in the Indenture,
and the right to receive or exercise Warrants will be transferable only in
connection with the transfer of such Debentures or a beneficial interest in a
global Debenture.
All Debentures and global Debentures containing a Warrant
Endorsement presented for Separation shall be duly endorsed by the registered
holder or holders thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney, and in the case of transfer, which
signature shall be medallion guaranteed by an institution which is a member of
a Securities Transfer Association recognized signature guarantee program. Upon
notice from the Trustee of a Separation, the Warrant Agent shall, with respect
to Definitive Warrants, deliver (or cause to be delivered) the Warrant
Certificate or Warrant Certificates executed by the Company and countersigned
by the Warrant Agent in the name of such registered holder or holders or such
transferee or transferees or shall, with respect to Global Warrants, deliver
(or cause to be delivered) a Global Warrant (CUSIP __________) executed by the
Company and countersigned by the Warrant Agent in the name of the Depositary
or its nominee for such aggregate number of Warrants (or, with respect to a
Global Warrant, increasing the number of Warrants represented thereby in such
amount) as shall equal _____ Warrants for each $1,000 principal amount at
maturity of Debentures so exchanged for Separation, bearing numbers or other
distinguishing symbols not contemporaneously outstanding, to the person or
persons entitled thereto. Upon registration of transfer or exchange of a
Warrant Certificate, the Warrant Agent shall countersign and deliver by
certified mail a new Warrant Certificate to the persons entitled thereto.
(j) No service charge shall be made for registration of transfer or
exchange upon surrender of any Warrant Certificate at the office of the
Warrant Agent maintained for that purpose. The Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration, transfer or exchange of Warrant
Certificates.
SECTION 6. Separation of Warrants; Terms of Warrants; Exercise of
Warrants. (a) The Debentures and Warrants will not be separately transferable
until the close of business on the earliest to occur of (i) ________________,
1998, (ii) such earlier date as Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation may determine and (iii) in the event of a Change of Control (as
defined in the Indenture) (the earliest of such dates, the "Separation Date"),
at which time such Warrants shall become separately transferable. Subject to
the terms of this Agreement, each Warrant holder shall have the right, which
may be exercised during the period commencing at the opening of business on
_______, 1997 and until 5:00 p.m., New York City time on ________, 2007 (the
"Exercise Period"), to receive from the Company the number of fully paid and
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nonassessable Warrant Shares which the holder may at the time be entitled to
receive on exercise of such Warrants and payment of the exercise price (the
"Exercise Price") then in effect for such Warrant Shares; provided that
holders shall be able to exercise their Warrants only if a registration
statement relating to the Warrant Shares is then in effect, or the exercise of
such Warrants is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and such securities are
qualified for sale or exempt from qualification under the applicable
securities laws of the states in which the various holders of the Warrants or
other persons to whom it is proposed that the Warrant Shares be issued on
exercise of the Warrants reside. Each holder may exercise its right, during
the Exercise Period, to receive Warrant Shares on a net basis, such that,
without the exchange of any funds, the holder tenders Debentures having an
aggregate principal amount at maturity, plus accrued and unpaid interest, if
any thereon, to the date of exercise (or, if such exercise takes place prior
to ___________, 2002, an Accreted Value (as defined in the Indenture) on the
date of exercise) equal to the Exercise Price of the Warrants being exercised
by such holder. Each Warrant not exercised prior to 5:00 p.m., New York City
time, on __________, 2007 (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. No adjustments as to dividends will be made upon
exercise of the Warrants.
(b) In order to exercise all or any of the Warrants represented by a
Warrant Certificate, (i) in the case of Definitive Warrants, the holder
thereof must surrender for exercise the Warrant Certificate to the Warrant
Agent at its New York corporate trust office set forth in Section 19 hereof,
(ii) in the case of a book-entry interest in a Global Warrant, the exercising
Agent Member whose name appears on a securities position listing of the
Depositary as the holder of such book-entry interest must comply with the
Depositary's procedures relating to the exercise of such book-entry interest
in such Global Warrant and (iii) in the case of both Global Warrants and
Definitive Warrants, the holder thereof or the Agent Member, as applicable,
must deliver to the Warrant Agent 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 upon payment to the
Warrant Agent for the account of the Company of the Exercise Price, which is
set forth in the form of Warrant Certificate attached hereto as Exhibit A, as
adjusted as herein provided, for the number of Warrant Shares in respect of
which such Warrants are then exercised. Payment of the aggregate Exercise
Price shall be made (i) in cash, by wire transfer or by certified or official
bank check payable to the order of the Company or (ii) on a net basis in the
manner provided in Section 6(a) hereof.
(c) Subject to the provisions of Section 7 hereof, upon compliance
with clause (b) above, the Warrant Agent shall deliver or cause to be
delivered with all reasonable dispatch, to or upon the written order of the
holder and in such name or names as the Warrant holder or Agent Member may
designate, a certificate or certificates for the number of whole Warrant
Shares issuable upon the exercise of such Warrants or other securities or
property to which such holder is entitled hereunder, together with cash as
provided in Section 12 hereof; provided that if any consolidation, merger or
lease or sale of assets is proposed to be effected by the Company as described
in Section 11(m) hereof, or a tender offer or an exchange offer for shares of
Common Stock shall be made, upon such surrender of Warrants and payment of the
Exercise Price as
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aforesaid, the Warrant Agent shall, as soon as possible, but in any event not
later than two business days thereafter, deliver or cause to be delivered the
full number of Warrant Shares issuable upon the exercise of such Warrants in
the manner described in this sentence or other securities or property to which
such holder is entitled hereunder, together with cash as provided in Section
12 hereof. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to
have become a holder of record of such Warrant Shares as of the date of the
surrender of such Warrants and payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part. If less than all the
Warrants represented by a Definitive Warrant are exercised, such Definitive
Warrant shall be surrendered and a new Definitive Warrant of the same tenor
and 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 Definitive Warrant, registered in such name or names as
may be directed in writing by the holder, and shall deliver the new Definitive
Warrant to the Person or Persons entitled to receive the same. The Warrant
Agent shall make such notations on Schedule A to each Global Warrant as are
required to reflect any change in the number of Warrants represented by such
Global Warrant resulting from any exercise in accordance with the terms
hereof.
(e) 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 the Warrant Agent for the purchase of the Warrant Shares through the
exercise of such Warrants.
(f) 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 its 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 request.
SECTION 7. Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in
the issue of any Warrant Certificates or any certificates for Warrant Shares
in a name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
SECTION 8. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue and the Warrant Agent may countersign, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
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stolen or destroyed, a new Warrant Certificate of like tenor and representing
an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and indemnity, if requested, also
satisfactory to them. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 9. Reservation of Warrant Shares. (a) The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon
the exercise of all outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at
all times to reserve such number of authorized shares as shall be required for
such purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent the stock
certificates required to honor outstanding Warrants upon exercise thereof in
accordance with the terms of this Agreement. The Company will supply such
Transfer Agent with duly executed certificates for such purposes and will
provide or otherwise make available any cash which may be payable as provided
in Section 12 hereof. The Company will furnish such Transfer Agent a copy of
all notices of adjustments, and certificates related thereto, transmitted to
each holder pursuant to Section 14 hereof.
(c) Before taking any action which would cause an adjustment pursuant
to Section 11 hereof to reduce the Exercise Price below the then par value (if
any) of the Warrant Shares, the Company will take any corporate action which
may, in the opinion of its counsel (which may be counsel employed by the
Company), 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.
(d) The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free
of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issuance thereof.
SECTION 10. Obtaining Stock Exchange Listings. The Company will from
time to time take all action which may be necessary so that the Warrant
Shares, immediately upon their issuance upon the exercise of Warrants, will be
listed on the principal securities exchanges and markets within the United
States of America, if any, on which other shares of Common Stock are then
listed, if any.
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SECTION 11. 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 Section 11. For purposes of
this Section 11, "Common Stock" means shares now or hereafter authorized of
any class of common stock of the Company and any other stock of the Company,
however designated, that has the right (subject to any prior rights of any
class or series of preferred stock) to participate in any distribution of the
assets or earnings of the Company without limit as to per share amount.
Notwithstanding anything to the contrary contained herein, the
Exercise Price and the number of Warrant Shares issuable upon the exercise of
each Warrant shall not be subject to adjustment under this Article 11 in
connection with the Merger. Instead, at the Effective Time, each Warrant shall
be and shall become the right initially to purchase _______ shares of Holdings
Common Stock at an initial Exercise Price of $_______ per share and, from and
after the Effective Time, such number of shares of Holdings Common Stock and
such Exercise Price shall be subject to adjustment pursuant to this Section
11.
(a) Adjustment for Change in Capital Stock. 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, (iii) combines its outstanding shares of Common Stock into a
smaller number of shares, (iv) makes a distribution on its Common Stock in
shares of its capital stock other than Common Stock or (v) issues by
reclassification of its Common Stock any shares of its capital stock; then the
Exercise Price in effect immediately prior to such action shall be
proportionately adjusted so that the holder of any Warrant thereafter
exercised may receive the aggregate number and kind of shares of capital stock
of the Company which he would have owned immediately following such action if
such Warrant had been exercised immediately prior to such action.
The adjustment 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, combination or reclassification.
If, after an adjustment, a holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of the Company, the Company
shall determine the allocation of the adjusted Exercise Price between the
classes of capital stock. After such allocation, the exercise privilege and
the Exercise Price of each class of capital stock shall thereafter be subject
to adjustment on terms comparable to those applicable to Common Stock in this
Section 11. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) Adjustment for Rights Issue. If the Company distributes any
rights, options or warrants to all holders of its Common Stock entitling them
for a period expiring within 45 days after the record date mentioned below to
purchase shares of Common Stock at a price per share
10
less than the Fair Value (as defined herein) per share on that record date,
the Exercise Price shall be adjusted in accordance with the formula:
O + N x P
-----
E' = E x M
---------------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding
on the record date.
N = the number of additional shares of Common Stock
offered.
P = the offering price per share of the additional
shares.
M = the Fair Value per share of Common Stock on the
record date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after
the record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or
warrants shall have been exercised, the Exercise Price shall be immediately
readjusted to what it would have been if "N" in the above formula had been the
number of shares actually issued.
(c) Adjustment for Other Distributions. If the Company distributes to
all holders of its Common Stock any of its assets or debt securities or any
rights or warrants to purchase debt securities, assets or other securities of
the Company, the Exercise Price shall be adjusted in accordance with the
formula:
M - F
E' = E x -----------
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Fair Value per share of Common Stock on the
record date mentioned below.
11
F = the fair market value on the record date of the
assets, securities, rights or warrants to be
distributed in respect of one share of Common Stock
as determined in good faith by the Board of
Directors of the Company (the "Board of Directors."
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the
distribution.
This Section 11(c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown
on the books of the Company prepared in accordance with generally accepted
accounting principles. Also, this Section 11(c) does not apply to rights,
options or warrants referred to in Section 11(b) hereof.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock for a
consideration per share less than the Fair Value per share on the date the
Company fixes the offering price of such additional shares, the Exercise Price
shall be adjusted in accordance with the formula:
P
-
E' = E x O + M
-----------
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the Fair Value per share on the date of issuance of such
additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
12
This subsection (d) does not apply to:
(1) any of the transactions described in
subsections (b) and (c) of this Section 11,
(2) the exercise of Warrants, or the conversion or
exchange of other securities convertible or exchangeable for Common
Stock,
(3) Common Stock issued to the Company's employees
under bona fide employee benefit plans adopted by the Board of
Directors and approved by the holders of Common Stock when required
by law, if such Common Stock would otherwise be covered by this
subsection (d) (but only to the extent that the aggregate number of
shares excluded hereby and issued after the date of this Warrant
Agreement shall not exceed 5% of the Common Stock outstanding at the
time of the adoption of each such plan, exclusive of antidilution
adjustments thereunder),
(4) Common Stock upon the exercise of rights or
warrants issued to the holders of Common Stock,
(5) Common Stock issued to shareholders of any
person which merges into the Company in proportion to their stock
holdings of such person immediately prior to such merger, upon such
merger, or
(6) the issuance of shares of Common Stock pursuant
to rights, options or warrants which were originally issued in a
Non-Affiliate Sale (as defined below) together with one or more other
securities as part of a unit at a price per unit.
(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible into or
exchangeable for Common Stock (other than securities issued in transactions
described in subsections (b) and (c) of this Section 11) for a consideration
per share of Common Stock initially deliverable upon conversion or exchange of
such securities less than the Fair Value per share on the date of issuance of
such securities, the Exercise Price shall be adjusted in accordance with this
formula:
13
P
-
O + M
E' = E x -----------
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the Fair Value per share on the date of issuance of such
securities.
D = the maximum number of shares deliverable upon conversion
or in exchange for such securities at the initial conversion
or exchange rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or
exchange of such securities have not been issued when such securities are no
longer outstanding, then the Exercise Price shall promptly be readjusted to
the Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities
issued to shareholders of any person which merges into the Company, or with a
subsidiary of the Company, in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger.
14
(f) Consideration Received.
For purposes of any computation respecting consideration
received pursuant to subsections (d), and (e) of this Section 11, the
following shall apply:
(1) in the case of the issuance of shares of Common Stock
for cash, the consideration shall be the amount of such cash,
provided that in no case shall any deduction be made for any
commissions, discounts or other expenses incurred by the Company for
any underwriting of the issue or otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair market
value thereof as determined in good faith by the Board of Directors
(irrespective of the accounting treatment thereof), whose
determination shall be conclusive, and described in a Board
resolution which shall be filed with the Warrant Agent;
(3) in the case of the issuance of securities convertible
into or exchangeable for shares, the aggregate consideration received
therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional
minimum consideration, if any, to be received by the Company upon the
conversion or exchange thereof (the consideration in each case to be
determined in the same manner as provided in clauses (1) and (2) of
this subsection); and
(4) in the case of the issuance of shares of Common Stock
pursuant to rights, options or warrants which rights, options or
warrants were originally issued together with one or more other
securities as part of a unit at a price per unit, the consideration
shall be deemed to be the fair value of such rights, options or
warrants at the time of issuance thereof as determined in good faith
by the Board of Directors whose determination shall be conclusive and
described in a Board resolution which shall be filed with the Warrant
Agent plus the additional minimum consideration, if any, to be
received by the Company upon the exercise, conversion or exchange
thereof (as determined in the same manner as provided in clauses
(1) and (2) of this subsection).
(g) Fair Value. In Sections 11(d) and (e) hereof, the "Fair Value"
per security at any date of determination shall be (1) in connection with a
sale by the Company to a party that is not an Affiliate of the Company in an
arm's-length transaction (a "Non-Affiliate Sale"), the price per security at
which such security is sold and (2) in connection with any sale by the Company
to an Affiliate of the Company, (a) the last price per security at which such
security was sold in a Non-Affiliate Sale within the three-month period
preceding such date of determination or (b) if clause (a) is not applicable,
the fair market value of such security determined in good faith by (i) a
majority of the Board of Directors, including a majority of the Disinterested
Directors, and approved in a Board resolution delivered to the Warrant Agent
or (ii) a nationally recognized investment banking, appraisal or valuation
firm, which is not an Affiliate of the Company, in each case, taking into
account, among all other factors deemed relevant by the Board of Directors or
15
such investment banking, appraisal or valuation firm, the trading price and
volume of such security on any national securities exchange or automated
quotation system on which such security is traded. Notwithstanding the
foregoing, any sale to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (or
any successor thereto) pursuant to an underwritten public offering registered
under the Securities Act shall be deemed to be and treated as a Non-Affiliate
Sale.
In Sections 11(b) and (c) hereof, the "Fair Value" per security at
any date of determination shall be (a) the last price per security at which
such security was sold by the Company in a Non-Affiliate Sale within the
three-month period preceding such date of determination or (b) if clause (a)
is not applicable, the fair market value of such security determined in good
faith by (i) a majority of the Board of Directors, including a majority of the
Disinterested Directors, and approved in a Board resolution delivered to the
Warrant Agent or (ii) a nationally recognized investment banking, appraisal or
valuation firm, which is not an Affiliate of the Company, in each case, taking
into account, among all other factors deemed relevant by the Board of
Directors or such investment banking, appraisal or valuation firm, the trading
price and volume of such security on any national securities exchange or
automated quotation system on which such security is traded.
For purposes of this Section 11(g), "Disinterested Director" means,
in connection with any issuance of securities that gives rise to a
determination of the Fair Value thereof, each member of the Board of Directors
who is not an officer, employee, director or other Affiliate of the party to
whom the Company is proposing to issue the securities giving rise to such
determination.
For purposes of this Section 11(g), "Affiliate" of any specified
Person means (A) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person and (B) any director, officer or employee of such specified person. For
purposes of this definition "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with") as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
(i) 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 11 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be.
(j) When No Adjustment Required. No adjustment need be made for a
transaction referred to Section 11(a), (b), (c), (d), (e) or (f) hereof, if
Warrant holders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. No adjustment need be made for (i) rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or interest,
(ii) a change in the par value or no par value of the Common Stock or (iii)
the issuance by the Company of the DLJMB Warrants (as
16
defined in the registration (No. 333-28539) on Form S-1 relating to the Units
filed with the Securities and Exchange Commission (the "Commission") on June
3, 1997). To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
(k) Notice of Adjustment. Whenever the Exercise Price is adjusted,
the Company shall provide the notices required by Section 13 hereof.
(l) Voluntary Reduction. The Company from time to time may reduce the
Exercise Price by any amount for any period of time, if the period is at least
20 days and if the reduction is irrevocable during the period; provided that
in no event may the Exercise Price be less than the par value of a share of
Common Stock. Whenever the Exercise Price is reduced, the Company shall mail
to Warrant holders a notice of the reduction. The Company shall mail the
notice at least 15 days before the date the reduced Exercise Price takes
effect. The notice shall state the reduced Exercise Price and the period in
which it will be in effect. A reduction of the Exercise Price does not change
or adjust the Exercise Price otherwise in effect for purposes of Sections
11(a), (b), (c), (d), (e) and (f) hereof.
(m) Notice of Certain Transactions. If (i) the Company takes any
action that would require an adjustment in the Exercise Price pursuant to
Section 11(a), (b), (c), (d), (e) or (f) hereof and if the Company does not
arrange for Warrant holders to participate pursuant to Section 11(i) hereof,
(ii) the Company takes any action that would require a supplemental Warrant
Agreement pursuant to Section 11(n) hereof or (iii) there is a liquidation or
dissolution of the Company, then the Company shall mail to Warrant holders a
notice stating the proposed record date for a dividend or distribution or the
proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The
Company shall mail the notice at least 15 days before such date. Failure to
mail the notice or any defect in it shall not affect the validity of the
transaction.
(n) Reorganization of Company. Immediately after the Effective Time,
if the Company consolidates or merges with or into, or transfers or leases all
or substantially all its assets to, any person, upon consummation of such
transaction the Warrants shall automatically become exercisable for the kind
and amount of securities, cash or other assets which the holder of a Warrant
would have owned immediately after the consolidation, merger, transfer or
lease if the holder had exercised the Warrant immediately before the effective
date of the transaction. Concurrently with the consummation 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 11(n). The successor Company shall mail to Warrant holders a notice
describing the supplemental Warrant Agreement. If the issuer of securities
deliverable upon exercise of Warrants under the supplemental Warrant Agreement
is an affiliate of the formed, surviving, transferee or lessee corporation,
that issuer shall join in the supplemental Warrant Agreement. If this Section
11(n) applies, Sections 11(a), (b), (c), (d), (e) and (f) hereof do not apply.
17
(o) Company Determination Final. Any determination that the Company
or the Board of Directors must make pursuant to Section 11(a), (c), (d), (e),
(f), (g), (h) or (i) hereof is conclusive.
(p) Warrant Agent's Disclaimer. The Warrant Agent has no duty to
determine when an adjustment under this Section 11 should be made, how it
should be made or what it should be. The Warrant Agent has no duty to
determine whether any provisions of a supplemental Warrant Agreement under
Section 11(n) hereof are correct. The Warrant Agent makes no representation as
to the validity or value of any securities or assets issued upon exercise of
Warrants. The Warrant Agent shall not be responsible for the Company's failure
to comply with this Section 11.
(q) When Issuance or Payment May Be Deferred. In any case in which
this Section 11 shall require that an adjustment in the Exercise Price be made
effective as of a record date for a specified event, the Company may elect to
defer until the occurrence of such event (i) issuing to the holder of any
Warrant exercised after such record date the Warrant Shares and other capital
stock of the Company, if any, issuable upon such exercise over and above the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the Exercise Price and (ii) paying to such
holder any amount in cash in lieu of a fractional share pursuant to Section 12
hereof; provided that the Company shall deliver to such holder a due xxxx or
other appropriate instrument evidencing such holder's right to receive such
additional Warrant Shares, other capital stock and cash upon the occurrence of
the event requiring such adjustment.
(r) Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to this Section 11, each Warrant outstanding prior to
the making of the adjustment in the Exercise Price shall thereafter evidence
the right to receive upon payment of the adjusted Exercise Price that number
of shares of Common Stock (calculated to the nearest hundredth) obtained from
the following formula:
N' = N x E
---
E'
where:
N' = the adjusted number of Warrant Shares issuable
upon exercise of a Warrant by payment of the
adjusted Exercise Price.
N = the number or Warrant Shares previously issuable
upon exercise of a Warrant by payment of the
Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
18
(s) Form of Warrants. Irrespective of any adjustments in the Exercise
Price or the number or kind of shares purchasable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
SECTION 12. Fractional Interests. The Company shall not be required
to issue fractional Warrant Shares on the exercise of Warrants. If more than
one Warrant shall be presented for exercise 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
12, be issuable on the exercise of any Warrants (or specified portion
thereof), the Company shall pay an amount in cash equal to the Fair Value per
Warrant Share, as determined on the day immediately preceding the date the
Warrant is presented for exercise, multiplied by such fraction, computed to
the nearest whole U.S. cent.
SECTION 13. Notices to Warrant Holders. (a) Upon any adjustment of
the Exercise Price pursuant to Section 11 hereof, the Company shall promptly
thereafter (i) cause to be filed with the Warrant Agent a certificate of a
firm of independent public accountants of recognized standing selected by the
Board of Directors of the Company (who may be the regular auditors of the
Company) 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) issuable after such adjustment in the Exercise Price, 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 registered holders of
Warrants at the address appearing on the Warrant register for each such
registered holder 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 Section 13.
(b) In case:
(i) the Company shall authorize the issuance to all holders
of shares of Common Stock of rights, options or warrants to subscribe
for or purchase shares of Common Stock or of any other subscription
rights or warrants;
(ii) the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets (other than cash dividends or cash distributions payable out
of consolidated earnings or earned surplus or dividends payable in
shares of Common Stock or distributions referred to in Section 11(a)
hereof);
(iii) of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or of any
reclassification or change of Common Stock issuable upon exercise of
the Warrants (other than a change in par value, or from par value to
no par value, or from no par value to par
19
value, or as a result of a subdivision or combination), or a tender
offer or exchange offer for shares of Common Stock;
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(v) the Company proposes to take any action (other than
actions of the character described in Section 11(a) hereof) which
would require an adjustment of the Exercise Price pursuant to Section
11 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall
cause to be given to each of the registered holders of Warrants at his address
appearing on the Warrant register, at least 20 days (or 10 days in any case
specified in clauses (i) or (ii) above) prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating
(x) the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to
be determined, (y) the initial expiration date set forth in any tender offer
or exchange offer for shares of Common Stock, or (z) the date on which any
such consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure to give the
notice required by this Section 13 or any defect therein shall not affect the
legality or validity of any distribution, right, option, warrant,
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up, or the vote upon any action.
(c) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders of Warrants 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 as stockholders of the Company.
SECTION 14. Merger, Consolidation or Change of Name of Warrant Agent.
(a) Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent
under the provisions of Section 16 hereof. In case at the time such successor
to the Warrant Agent shall succeed to the agency created by this Agreement,
and in case at that time any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent; and in case at that
time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the
successor to the Warrant
20
Agent; and in all such cases such Warrant Certificates shall have the full
force and effect provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent whose name has been changed
may adopt the countersignature under its prior name, and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name, 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 15. Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) 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 Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken
in reliance on any Warrant Certificate, certificate of shares, notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution
of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including
judgments, costs and counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of its negligence
or bad faith.
21
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as it may consider proper,
whether with or without any such security or indemnity. All rights of action
under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant Certificates 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 registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, 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 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 legal
entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own negligence or
bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments,
or with respect to the nature or extent of any such adjustments, when made, or
with respect to the method employed in making the same. The Warrant Agent
shall not be accountable with respect to the validity or value or the kind or
amount of any Warrant Shares or of any securities or property which may at any
time be issued or delivered upon the exercise of any Warrant or with respect
to whether any such Warrant Shares or other securities will when issued be
validly issued and fully paid and nonassessable, and makes no representation
with respect thereto.
SECTION 16. Change of Warrant Agent. If the Warrant Agent shall
become incapable of acting as Warrant Agent, the Company shall appoint a
successor to such Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in writing
of such incapacity by the Warrant Agent or by the registered holder of a
Warrant Certificate, then the registered holder of any Warrant may apply to
any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to such Warrant Agent,
either by the Company or by such a court, the duties of the Warrant Agent
shall be carried out by the Company. The holders of a majority of the
unexercised Warrants shall be entitled at any time to remove the Warrant Agent
and appoint a successor to such
22
Warrant Agent. Such successor to the Warrant Agent need not be approved by the
Company or the former Warrant Agent. After appointment the successor to the
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; provided that the former Warrant Agent shall deliver and
transfer to the successor to the Warrant Agent any property at the time held
by it hereunder and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Failure to give any notice provided for in
this Section 16, however, or any defect therein, shall not affect the legality
or validity of the appointment of a successor to the Warrant Agent.
SECTION 17. Registration. Holders shall be able to exercise their
Warrants only if a registration statement relating to the Warrant Shares is
then in effect, or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act, and such securities are
qualified for sale or exempt from qualification under the applicable
securities laws of the states in which the various holders of the Warrants or
other persons to whom it is proposed that the Warrant Shares be issued on
exercise of the Warrants reside.
(a) (i) The Company shall prepare and cause to be filed with the
Commission pursuant to Rule 415 under the Securities Act a shelf registration
statement on the appropriate form relating to the offer and sale by the
Company of the Warrant Shares to the holders of Warrants upon exercise of the
Warrants and resales of the Warrant Shares by the holders thereof.
(ii) In addition, the Company shall prepare and cause to be
filed with the Commission pursuant to Rule 415 under the Securities Act a
shelf registration statement on the appropriate form relating to the resale of
Warrant Shares upon the exercise of the Warrants by any broker or dealer
registered under the Securities Exchange Act of 1934, as amended (together
with the registration statement contemplated by clause (i) above, the
"Registration Statements").
(b) The Company shall use its reasonable best efforts to cause such
Registration Statements to be declared effective by the Commission by the
earlier of (i) the later of the Separation Date and 120 days from the date of
this Agreement and (ii) 45 days after the occurrence of a Change of Control.
(c) The Company shall use its best efforts to keep the Registration
Statements continuously effective under the Securities Act in order to permit
the prospectus included therein to be lawfully delivered by the Company to the
holders exercising the Warrants until the Expiration Date or such shorter
period that will terminate when all the Warrants have been exercised; provided
that, except as provided below with respect to any Black Out Period (as
defined herein), the Company shall be deemed not to have used its reasonable
best efforts to keep the Registration Statements effective during the
requisite period if it voluntarily takes any action that would result in it
not being able to offer and sell the Warrant Shares upon exercise of the
Warrants during that period, unless such action is required by applicable law.
Notwithstanding the foregoing, the Company shall not be required to amend or
supplement the Registration Statements, any related prospectus or any document
incorporated therein by reference, for a period (a "Black Out Period") not to
exceed, for so long as this Agreement is in effect, an aggregate of 45 days in
any calendar year, in the event that (i) an event occurs and is continuing as
a result of which the Registration
23
Statements, any related prospectus or any document incorporated therein by
reference as then amended or supplemented would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (ii)(A)
the Company determines in its good faith judgment that the disclosure of such
event at such time would have a material adverse effect on the business,
operations or prospects of the Company or (B) the disclosure otherwise relates
to a material business transaction which has not yet been publicly disclosed;
provided that no Black Out Period may be in effect during the three months
prior to the Expiration Date.
(d) The Company shall cause the Registration Statements and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Registration Statements, amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) The Company shall give prompt written notice to the holders of
the Warrants and the Warrant Agent of (i) the effectiveness of the
Registration Statements or any post-effective amendment thereto, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statements or the initiation or threatening of any
proceedings for that purpose, (iii) the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) the
happening of any event that requires the Company to make changes in the
Registration Statements or the prospectus in order to make the statements
therein not misleading and (v) the commencement and termination of any Black
Out Period.
(f) The Company shall use its reasonable best efforts to prevent the
issuance or obtain the withdrawal of any order suspending the effectiveness of
the Registration Statements at the earliest possible time.
(g) Upon the occurrence of any event contemplated by Section
17(e)(iv) or (v) hereof (subject to the last sentence of Section 17(c) hereof)
the Company shall promptly prepare a post-effective amendment to the
Registration Statements or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to holders of the
Warrants, the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and will contain the current information required by the Securities
Act.
(h) Not later than the effective date of the Registration Statements,
the Company will provide a CUSIP number for the Warrant Shares and provide the
Warrant Agent with printed certificates for the Warrant Shares in a form
eligible for deposit with the Depository Trust Company.
24
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registration Statements.
(j) The Company shall register or qualify or cooperate with the
holders in connection with the registration or qualification of the Warrant
Shares for offer and sale by the Company upon exercise of the Warrants under
the securities or blue sky laws of such states of the United States as any
holder reasonably requests and do any and all other acts or things necessary
or advisable to enable such offer and sale in such jurisdictions; provided
that the Company shall not be required to (i) qualify to do business in any
jurisdiction in which it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction in which it is not then so subject.
(k) The Company shall bear all expenses incurred by it in connection
with the performance of its obligations under this Section 17.
(l) The Company acknowledges and agrees that any remedy at law for
breach of any provision of this Section 17 will be inadequate and that, in
addition to any other remedies that the holder may have, the holders shall be
entitled to the remedy of specific performance to ensure the Company performs
its obligations under this Section 17. The election of any one or more
remedies by the holders hereunder shall not constitute a waiver of the right
to pursue other available remedies.
(m) No person is entitled to include any securities of the Company
held by such person in, or to have such securities registered under, the
Registration Statements.
SECTION 18. Reports.
(a) Whether or not required by the rules and regulations of the
Securities and Exchange Commission (the "Commission"), so long as any Warrants
are outstanding, the Company shall furnish to the holders of Warrants (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of all
such information and reports with the Commission for public availability
(unless the Commission shall not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.
(b) The Company shall provide the Warrant Agent with a sufficient
number of copies of all such reports that the Warrant Agent may be required to
deliver to the holders of the Warrants under this Section 18.
25
SECTION 19. Notices to Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent
or by the registered holder of any Warrant to or on the Company shall be
sufficiently given or made when and if deposited in the mail, first class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent) as follows:
DecisionOne Holdings Corp.
00 Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or
by the registered holder(s) of any Warrant to the Warrant Agent shall be
sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as
follows:
State Street Bank and Trust Company
--------------------
--------------------
--------------------
SECTION 20. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not in any way
adversely affect the interests of the holders of Warrants. Any amendment or
supplement to this Agreement that has a material adverse effect on the
interests of the holders of Warrants shall require the written consent of the
holders of a majority of the then outstanding Warrants (excluding Warrants
held by the Company or any of its affiliates). The consent of each holder of
Warrants affected shall be required for any amendment pursuant to which the
Exercise Price would be increased or the number of Warrant Shares purchasable
upon exercise of Warrants would be decreased (other than pursuant to
adjustments provided in this Agreement.
SECTION 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
26
SECTION 22. Termination. This Agreement shall terminate at 5:00 p.m.,
New York City time on _____________, 2007. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date if all Warrants have been
exercised. The provisions of Section 15 shall survive such termination.
SECTION 23. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the internal laws of said State.
SECTION 24. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the registered holders of Warrants any legal or
equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of Warrants.
SECTION 25. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[Signature Page Follows]
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
QUAKER HOLDING CO.
By:
----------------------------------
Name:
Title:
[Seal]
Attest:
----------------------
Secretary
STATE STREET BANK AND TRUST COMPANY,
as Warrant Agent
By
----------------------------------
Name:
Title:
[Seal]
Attest:
----------------------
Secretary
28
EXHIBIT A
FORM OF WARRANT
[Face of Warrant Certificate]
[Unless and until it is exchanged in whole or in part for Warrants in
definitive form, this Warrant may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company shall act as the Depositary until a
successor shall be appointed by the Company. Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), 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 such other name as may be requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.](1)
EXERCISABLE ON OR AFTER ________, 1997.
No. _____ __________Warrants
Warrant Certificate
QUAKER HOLDING CO.
This Warrant Certificate certifies that ______________, or registered
assigns, is the registered holder of Warrants expiring ________, 2007 (the
"Warrants") to purchase Common Stock. Each Warrant entitles the holder upon
exercise to receive from the Company commencing ________, 1997 until 5:00 p.m.
New York City Time on _________, 2007, the number of fully paid and
nonassessable Warrant Shares as set forth in the Warrant Agreement, subject to
adjustment as set forth in Section 11 of the Warrant Agreement, at the initial
exercise price (the "Exercise Price") of $______ payable in lawful money of
the United States of America upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent,
but only subject to the conditions set forth herein and in the Warrant
Agreement referred to on the reverse hereof. Notwithstanding the foregoing,
Warrants may be exercised without the exchange of funds pursuant to the net
exercise provisions of Section 6 of the Warrant Agreement. 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
--------
(1) This paragraph should be included only if the Warrant is issued in
global form.
A-1
Warrant Agreement. No Warrant may be exercised after 5:00 p.m., New York City
Time on __________, 2007, and to the extent not exercised by such time such
Warrants shall become void. 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. This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement. This Warrant Certificate shall be governed and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, Quaker Holding Co. has caused this Warrant
Certificate to be signed by its [Chief Executive Officer] and by its
[Secretary] and may cause its corporate seal to be affixed hereunto or
imprinted hereon.
Dated: August , 1997
----
QUAKER HOLDING CO.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Countersigned:
STATE STREET BANK AND TRUST COMPANY
as Warrant Agent
By:
-----------------------------
Name:
Title:
A-2
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring __________, 2007 entitling the holder on
exercise to receive shares of Common Stock, and are issued or to be issued
pursuant to a Warrant Agreement dated as of August ___, 1997 (the "Warrant
Agreement"), duly executed and delivered by the Company to State Street Bank
and Trust Company, 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. A copy
of the Warrant Agreement may be obtained by the holder hereof upon written
request to the Company.
Warrants may be exercised at any time on or after _________, 1997 and
on or before _________, 2007; provided that holders shall be able to exercise
their Warrants only if a registration statement relating to the Warrant Shares
is then in effect, or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various holders of the Warrants or other persons to whom it is proposed that
the Warrant Shares be issued on exercise of the Warrants reside. In order to
exercise all or any of the Warrants represented by this Warrant Certificate,
(i) in the case of Definitive Warrants, the holder must surrender for exercise
this Warrant Certificate to the Warrant Agent at its New York corporate trust
office set forth in Section 19 of the Warrant Agreement, (ii) in the case of a
book-entry interest in a Global Warrant, the exercising Agent Member whose
name appears on a securities position listing of the Depositary as the holder
of such book-entry interest must comply with the Depositary's procedures
relating to the exercise of such book-entry interest in such Global Warrant
and (iii) in the case of both Global Warrants and Definitive Warrants, the
holder thereof or the Agent Member, as applicable, must deliver to the Warrant
Agent the form of election to purchase on the reverse hereof 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 upon payment to the Warrant Agent for the account of
the Company of the Exercise Price, as adjusted as provided in the Warrant
Agreement, for the number of Warrant Shares in respect of which such Warrants
are then exercised. No adjustment shall be made for any dividends on any
Common Stock issuable upon exercise of this Warrant.
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. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. 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.
The Company has agreed under the terms of the Warrant Agreement to
file and use its reasonable best efforts to make effective no later than the
earlier of (i) the later of the Separation
A-3
Date and 120 days from the date of the Warrant Agreement and (ii) 45 days
after the occurrence of a Change of Control and (subject to Black Out Periods)
to maintain effective until expiration or exercise of all Warrants shelf
registration statements (the "Registration Statements") on appropriate forms
under the Securities Act covering the issuance and resale of Warrant Shares
upon exercise of the Warrants.
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, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
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) thereof 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.
A-4
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 the
Company in the amount of $______ in accordance with the terms hereof unless
the holder is exercising Warrants pursuant to the net exercise provisions of
Section 6 of the Warrant Agreement in which case the holder shall tender
Debentures having an aggregate principal amount at maturity, plus accrued and
unpaid interest, if any thereon, to the date of exercise (or, if such exercise
takes place prior to ___________, 2002, an Accreted Value (as defined in the
Indenture) on the date of exercise equal to the Exercise Price of the Warrants
being exercised by such holder. The undersigned requests that a certificate
for such shares be registered in the name of _______________________________,
whose address is _______________________________ and that such shares be
delivered to ________________ whose address is ______________________________.
If said number of shares is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
______________, whose address is _________________________, and that such
Warrant Certificate be delivered to _________________, whose address is
__________________.
Date: ,
-------------- ----
--------------------------
(Signature)
--------------------------
(Signature Guaranteed)
A-5
SCHEDULE A(2)
SCHEDULE OF WARRANTS
EVIDENCED BY THIS GLOBAL WARRANT
The initial number of Warrants evidenced by this Global
Warrant shall be _________. The following decreases/increases in the number of
Warrants evidenced by this Warrant have been made:
Decrease in Increase in Total Number of
Number of Number of Warrants Evidenced
Warrants Warrants by this Global Notation Made
Date of Evidenced by Evidenced by Warrant Following by or on
Decrease/ this Global this Global such Decrease/ Behalf of
Increase Warrant Warrant Increase Warrant Agent
-------- ------- ------- -------- -------------
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
________ ___________ ____________ __________________ ______________
-------------------------
(2) To be included only on Global Warrants.
A-6
EXHIBIT B
FORM OF TRANSFER LEGEND
Each Certificate evidencing Warrants originally issued as part of a
Unit of Debentures and Warrants issued by the Company (and each Certificate
evidencing Warrants issued on registration of transfer thereof or in exchange
or substitution therefor prior to the close of business on the Separation Date
(as defined)) shall bear a legend, which may be affixed by stamp or sticker,
in substantially the following form:
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE NOT TRANSFERABLE
SEPARATELY FROM THE DEBENTURES ORIGINALLY SOLD AS A UNIT WITH THE
WARRANTS UNTIL THE EARLIEST TO OCCUR OF (I) __________, 1997, (II)
SUCH EARLIER DATE AS XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION MAY DETERMINE AND (III) IN THE EVENT OF A CHANGE IN
CONTROL (AS DEFINED IN THE INDENTURE RELATING TO THE DEBENTURES), THE
DATE THE COMPANY MAILS A NOTICE THEREOF. PRIOR TO SUCH DATE, THE
WARRANTS EVIDENCED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
INTEGRAL MULTIPLES OF _____ WARRANTS AND ONLY WITH THE SIMULTANEOUS
TRANSFER TO THE TRANSFEREE OF $1,000 PRINCIPAL AMOUNT OF DEBENTURES
FOR EACH _____ WARRANTS SO TRANSFERRED.
B-1
