EXHIBIT 4.56
WARRANT AGREEMENT dated as of September 28, 2001 between ANC Rental
Corporation, a Delaware corporation (the "COMPANY"), and The Bank of New York,
a New York banking corporation, as Warrant Agent (the "WARRANT AGENT").
WHEREAS, on the date hereof the Company is issuing 1,441,957 Common
Stock Purchase Warrants, as hereinafter described (the "WARRANTS"), which in
the aggregate initially entitle the holders thereof to purchase 1,441,957
shares of Common Stock of the Company (the "COMMON STOCK") which constitute
2.5% of the Common Stock outstanding (on a Fully Diluted Basis) on the date
hereof (the Common Stock issuable on exercise of the Warrants being referred to
herein as the "WARRANT SHARES"), in connection with the Sixteenth Amendment,
dated the date hereof, to the Senior Loan Agreement dated as of June 30, 2000,
among the Company, Xxxxxx Brothers Inc. as arranger, Xxxxxx Commercial Paper
Inc. as syndication agent and Xxxxxx Commercial Paper Inc. (the "ADMINISTRATIVE
AGENT"). Capitalized terms used and not otherwise defined herein have the
meanings ascribed thereto in the Senior Loan 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, transfer, exchange and exercise of Warrants 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:
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.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or 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,
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, 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 or she
shall have ceased to hold such office.
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.
Warrant Certificates shall be dated the date of countersignature by
the Warrant Agent.
SECTION 4. Registration and Countersignature. Upon the issuance of the
Warrants to LB I Group, Inc., the Warrant Agent shall number and register such
Warrants in the names, denominations and exercisable for such number of shares
of Common Stock as directed in writing by LB I Group, Inc.
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 President, a Vice President, the Treasurer or the Chief Financial Officer
of the Company, initially countersign, issue and deliver Warrants collectively
for all Warrants outstanding 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 Warrants as otherwise provided in this
Agreement.
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. The Warrant Agent
shall from time to time, subject to the limitations of Section 6 hereof,
register the transfer of any outstanding Warrant Certificates upon the records
to be maintained by it for that purpose, upon surrender thereof duly endorsed
or accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly
executed by the registered holder or holders thereof or by a duly authorized
attorney. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee(s) and the surrendered Warrant Certificate
shall be cancelled by the Warrant Agent. Cancelled Warrant Certificates shall
thereafter be disposed of by the Warrant Agent in its customary manner.
The Warrant holders agree that they shall give five days prior written
notice of transfer to the Company and that prior to any proposed transfer of
the Warrants or of the Warrant Shares, if such transfer is not made pursuant to
an effective Registration Statement under the Securities Act of 1933, as
amended (the "ACT"), the Warrant holders shall deliver to the Company
(1) an opinion of counsel reasonably acceptable to the Warrant Agent and
the Company that the Warrant or Warrant Shares may be transferred without
registration under the Act;
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(2) customary representations and warranties, and covenants, regarding the
transferee and the investment that are reasonably satisfactory to the Company
signed by the proposed transferee;
(3) an agreement by such transferee to the impression of the restrictive
investment legend set forth below on the Warrant or the Warrant Shares; and
(4) an agreement by such transferee to be bound by the provisions of this
Agreement.
It is understood that the Warrants and the Warrant Shares may not be
transferred until they are released from escrow pursuant to the Agreement.
The Warrant holders agree that each certificate representing Warrant
Shares will bear a legend in substantially the following form:
"The securities evidenced or constituted hereby have been acquired for
investment and have not been registered under the Securities Act of
1933, as amended. Such securities may not be sold, transferred,
pledged or hypothecated unless the registration provisions of said Act
have been complied with or unless the Company has received an opinion
of counsel reasonably acceptable to the Warrant Agent and the Company
that such registration is not required."
Subject to the terms of this Agreement, Warrant Certificates may be
exchanged at the option of the holder(s) thereof, when surrendered to the
Warrant Agent at its principal office, which is currently located at the
address listed in Section 17 hereof, for another Warrant Certificate or other
Warrant Certificates of like tenor and representing in the aggregate a like
number of Warrants. Any holder desiring to exchange a Warrant Certificate shall
deliver a written request to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form satisfactory to the Warrant
Agent, the Warrant Certificate or Certificates to be so exchanged. Warrant
Certificates surrendered for exchange shall be cancelled by the Warrant Agent.
Such cancelled Warrant Certificates shall then be disposed of by such Warrant
Agent in its customary manner.
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.
SECTION 6. Terms of Warrants.
The initial exercise price per share at which Warrant Shares shall be
purchasable upon the exercise of Warrants (the "EXERCISE PRICE") shall be $0.01
per share. The Warrants shall be initially exercisable in the aggregate for
that number of shares of Common Stock equal to 2.5% of the fully diluted Common
Stock outstanding on the date hereof (calculated after giving effect to the
exercise of such Warrants and all options, warrants and rights to acquire
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Common Stock and the conversion or exchange of all convertible or exchangeable
securities for the maximum number of shares of Common Stock obtainable whether
or not such options, warrants or rights are then exercisable or vested and
whether or not such convertible or exchangeable securities are then convertible
or exchangeable) (a "FULLY DILUTED BASIS").
Subject to the terms of this Agreement, each Warrant holder shall have
the right, which may be exercised immediately and until 5:00 p.m., New York
City time on September 30, 2011, to receive from the Company the number of
fully paid and 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 then in effect for such Warrant Shares. In the alternative, each Warrant
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
receives that number of Warrant Shares otherwise issuable (or payable) upon
exercise of its Warrants less that number of Warrant Shares having an aggregate
fair market value (as defined below) at the time of exercise equal to the
aggregate Exercise Price that would otherwise have been paid by the holder of
the Warrant Shares upon such exercise. Each Warrant not exercised prior to 5:00
p.m., New York City time, on September 30, 2011 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. For purposes of this paragraph of Section 6, "FAIR
MARKET VALUE" shall be (1) if the Common Stock is reported on an interdealer
quotation system, the last reported sales price per share, or if there is no
reported sales price, the average of the last bid and ask per share, of the
Common Stock on the trading day immediately prior to the exercise date, (2) if
the Common Stock is listed on a securities exchange, the average of the closing
prices of the Common Stock for the five consecutive trading days on the
principal securities exchange on which the Common Stock is so listed
immediately prior to the Escrow Release Date, or (3) if the Common Stock is not
so reported or listed, as reasonably determined by the Company's Board of
Directors as supported by an opinion of a nationally recognized investment
banking firm.
A Warrant may be exercised upon surrender to the Company at the
principal office of the Warrant Agent, which is currently located at the
address listed in Section 17 hereof, of the certificate or certificates
evidencing the Warrants to be exercised with the form of election to purchase
on the reverse thereof duly filled in and signed and such other documentation
as the Warrant Agent may reasonably request, 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 or by certified or official bank check payable to the order of
the Company in New York Clearing House Funds, or the equivalent thereof or (ii)
in the manner provided in this Section 6.
Subject to the provisions of Section 7 hereof, upon such surrender of
Warrants and payment of the Exercise Price, the Company shall issue and cause
to be delivered with all reasonable dispatch to and in such name or names as
the Warrant holder may designate, a
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certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants together with cash as provided in Section 12
hereof; provided, however, that if any consolidation, merger or lease or sale
of assets is proposed to be effected by the Company as described in subsection
(j) of Section 11 hereof, or a tender offer or an exchange offer for shares of
Common Stock of the Company shall be made, upon such surrender of Warrants and
payment of the Exercise Price as aforesaid, the Company shall, as soon as
reasonably practicable, but in any event not later than three business days
thereafter, issue and cause to be delivered the full number of Warrant Shares
issuable upon the exercise of such Warrants in the manner described in this
sentence 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.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of
the Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued, and the Warrant Agent is hereby irrevocably
authorized to countersign and to deliver the required new Warrant Certificate
or Certificates pursuant to the provisions of this Section 6 and of Section 4
hereof, and the Company, whenever required by the Warrant Agent, shall supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose. The Warrant Agent may assume that any Warrant
presented for exercise is permitted to be so exercised under applicable law and
shall have no liability for acting in reliance on such assumption.
All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled by the Warrant Agent. Such canceled Warrant Certificates shall then
be disposed of by the Warrant Agent in its customary manner. 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.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the holders with
reasonable prior written notice 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, however, 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
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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 shall issue and the Warrant Agent shall 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, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and indemnity, if requested, also
reasonably satisfactory to the Company and the Warrant Agent; provided that if
the owner of the same is Xxxxxx Brothers Inc. or any affiliate thereof or an
institutional lender or investor, its own agreement of indemnity shall be
deemed to be satisfactory. Applicants for such new Warrant Certificates must
pay such reasonable charges as the Company may prescribe.
SECTION 9. Reservation of Warrant Shares. 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. The Warrant Agent shall have no duty to
verify availability of such shares set aside by the Company.
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 Common 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 Common
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 13 hereof.
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 commercially reasonable
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.
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The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon payment of the Exercise Price therefor and
issue, be fully paid, nonassessable, free of preemptive rights and free from
all taxes, liens, charges and security interests with respect to the issue
thereof.
SECTION 10. Obtaining Stock Exchange Listings. The Company will from
time to time take all commercially reasonable actions 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.
SECTION 11. Adjustment of Number of Warrant Shares.
The number of Warrant Shares issuable upon the exercise of each
Warrant is subject to adjustment from time to time upon the occurrence
following the date hereof 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.
(a) Adjustment for Change in Capital Stock.
If the Company:
(1) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(2) combines its outstanding shares of Common Stock into a smaller
number of shares;
(3) makes a distribution on its Common Stock in shares of its capital
stock other than Common Stock; or
(4) issues by reclassification of its Common Stock any shares of its
capital stock,
then the number of shares of Common Stock issuable upon exercise of each
Warrant immediately prior to such action shall be proportionately adjusted so
that the holder of any Warrant thereafter exercised shall 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.
Such adjustment shall be made successively whenever any event listed
above shall occur and shall become effective immediately after the effective
date of any such event.
(b) Adjustment for Issues of Common Stock or Derivative Securities.
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If the Company issues any shares of Common Stock, any options,
warrants or rights to acquire Common Stock or any securities convertible or
exchangeable into Common Stock (whether or not such options, warrants or rights
are then exercisable or vested and whether or not such convertible or
exchangeable securities are then convertible or exchangeable), the number of
shares of Common Stock issuable upon exercise of each Warrant immediately prior
to such issuance shall be adjusted so that the holder of any Warrant thereafter
exercised shall receive the number of shares of Common Stock that immediately
after such issuance represents that percentage of the shares of Common Stock
outstanding on a Fully Diluted Basis that he would have owned immediately prior
to such issuance if such Warrant had then been exercised.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after (i) the record date in
the case of a dividend, distribution or other issuance of any such securities
to all holders of Common Stock or (ii) the issuance of such securities in any
other case.
If all of the Common Stock deliverable upon exercise, conversion or
exchange of any such options, warrants or rights or convertible or exchangeable
securities have not been issued when such securities are no longer outstanding,
then the number of shares of Common Stock issuable upon exercise of each
Warrant shall promptly be readjusted to what it would have been 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 exercise, conversion or
exchange of such securities.
(c) Adjustment for Distributions Other Than Common Stock.
If the Company distributes to all holders of its Common Stock any of
its assets (including cash) or debt securities or any rights, options or
warrants to purchase debt securities, assets or other securities of the
Company, the number of shares of Common Stock issuable upon exercise of each
Warrant shall be adjusted in accordance with the formula:
N' = N x M
-----
M - F
where:
N' = the adjusted number of shares of Common Stock issuable upon exercise of
each Warrant.
N = the current number of shares of Common Stock issuable upon exercise of
each Warrant.
M = the current market price per share of Common Stock on the record date
mentioned below.
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F = the fair market value on the record date of the assets, securities,
rights or warrants distributable to one share of Common Stock after
taking into account, in the case of any rights, options or warrants,
the consideration required to be paid upon exercise thereof. The Board
of Directors shall reasonably determine the fair market value in good
faith.
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 subsection (c) does not apply to regular quarterly cash dividends
including increases thereof, or rights, options or warrants referred to in
subsection (b) of this Section 11. If any adjustment is made pursuant to this
subsection (c) as a result of the issuance of rights, options or warrants and
at the end of the period during which any such rights, options or warrants are
exercisable, not all such rights, options or warrants shall have been
exercised, the Warrant shall be immediately readjusted as if "F" in the above
formula was the fair market value described in the definition of "F" on the
record date of the indebtedness or assets actually distributed upon exercise of
such rights, options or warrants divided by the number of shares of Common
Stock outstanding on the record date. Notwithstanding anything to the contrary
contained in this subsection (c), if "M-F" in the above formula is less than
$1.00, the Company may elect to, and if "M-F" is a negative number, the Company
shall, in lieu of the adjustment otherwise required by this subsection (c),
distribute to the holders of the Warrants, upon exercise thereof, the evidences
of indebtedness, assets, rights, options or warrants (or the proceeds thereof)
which would have been distributed to such holders had such Warrants been
exercised immediately prior to the record date for such distribution.
(d) Current Market Price.
In subsection (c) of this Section 11, the current market price per
share of Common Stock on any date is the average of the Quoted Prices of the
Common Stock for 20 consecutive trading days commencing 30 trading days before
the date in question. The "QUOTED PRICE" of the Common Stock is the last
reported sales price of the Common Stock as reported by the Nasdaq National
Market, or if the Common Stock is listed on a securities exchange, the last
reported sales price of the Common Stock on such exchange which shall be for
consolidated trading if applicable to such exchange, or if neither so reported
or listed, the last reported bid price of the Common Stock. In the absence of
one or more such quotations, the Board of Directors of the Company shall
determine the current market price on the basis of such quotations as it
reasonably considers appropriate.
(e) When De Minimis Adjustment May Be Deferred.
No adjustment in the number of shares of Common Stock issuable upon
exercise of each Warrant need be made unless the adjustment would require an
increase or decrease of at least 1% in such number. Any adjustments that are
not made shall be carried forward and taken into account in any subsequent
adjustment.
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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.
(f) When No Adjustment Required.
No adjustment need be made for a transaction referred to in subsection
(c) of this Section 11 if Warrant holders are to participate, without requiring
the Warrants to be exercised, in the transaction on a basis and with notice
that the Board of Directors of the Company reasonably 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 a change in the par value or no par
value of the Common Stock.
To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the amount of cash into which such Warrants are
exercisable. Interest will not accrue on the cash.
(g) Notice of Adjustment.
Whenever the number of shares of Common Stock issuable upon exercise
of each Warrant is adjusted, the Company shall provide the notices required by
Section 13 hereof.
(h) Voluntary Reduction.
The Company from time to time may increase the number of shares of
Common Stock issuable upon exercise of each Warrant by any amount for any
period of time (including, without limitation, permanently) if such period is
at least 5 days.
Whenever the number of shares of Common Stock issuable upon exercise
of each Warrant is increased, the Company shall mail to Warrant holders a
notice of the increase. The Company shall mail the notice at least 15 days
before the date the increased Exercise Price takes effect. The notice shall
state the increased number of shares of Common Stock issuable upon exercise of
each Warrant and the period it will be in effect.
A voluntary increase of the number of shares of Common Stock issuable
upon exercise of each Warrant does not change or adjust the number of shares of
Common Stock issuable upon exercise of each Warrant for purposes of subsections
(a), (b) or (c) of this Section 11.
(i) Notice of Certain Transactions.
If:
(1) the Company takes any action that would require an adjustment in
the number of shares of Common Stock issuable upon exercise of each Warrant
pursuant to
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subsections (a), (b) or (c) of this Section 11 and if the Company does not
arrange for Warrant holders to participate pursuant to subsection (f) of
this Section 11;
(2) the Company takes any action that would require a supplemental
Warrant Agreement pursuant to subsection (j) of this Section 11; or
(3) there is a liquidation or dissolution of the Company,
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.
(j) Reorganization of Company.
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 such holder had exercised the Warrant immediately before the
effective date of the transaction; provided that (i) if the holders of Common
Stock were entitled to exercise a right of election as to the kind or amount of
securities, cash or other assets receivable upon such consolidation or merger,
then the kind and amount of securities, cash or other assets for which each
Warrant shall become exercisable shall be deemed to be the kind and amount so
receivable per share by a plurality of the holders of Common Stock in such
consolidation or merger or (ii) if a tender or exchange offer shall have been
made to and accepted by the holders of Common Stock under circumstances in
which, upon completion of such tender or exchange offer, the maker thereof,
together with members of any group (within the meaning of Rule 13d-5(b)(1)
under the Exchange Act) of which such maker is a part, and together with any
affiliate or associate of such maker (within the meaning of Rule 12b-2 under
the Exchange Act) and any members of any such group of which any such affiliate
or associate is a part, own beneficially (within the meaning of Rule 13d-3
under the Exchange Act) more than 50% of the outstanding shares of Common
Stock, the holder of a Warrant shall be entitled to receive the highest amount
of cash, securities or other property to which such holder would actually have
been entitled as a shareholder if such Warrant holder had exercised the Warrant
prior to the expiration of such tender or exchange offer, accepted such offer
and all of the Common Stock held by such holder had been purchased pursuant to
such tender or exchange offer, subject to adjustments (from and after the
consummation of such tender or exchange offer) as nearly equivalent as possible
to the adjustments provided for in this Section 11. Concurrently with the
consummation of any such transaction, the corporation or other entity 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
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adjustments provided for in this Section. 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 subsection (j) applies, subsections (a), (b) or (c) of this
Section 11 do not apply.
(k) 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 subsection (j) of this Section 11 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.
(l) When Issuance or Payment May Be Deferred.
In any case in which this Section 11 shall require that an adjustment
in the number of shares of Common Stock issuable upon exercise of each Warrant
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 number of shares of Common
Stock issuable upon exercise of each Warrant and (ii) paying to such holder any
amount in cash in lieu of a fractional share pursuant to Section 12 hereof;
provided, however, 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.
(m) Adjustment in Exercise Price.
Upon each event that provides for an adjustment of the number of
shares of Common Stock issuable upon exercise of each Warrant pursuant to this
Section 11, each Warrant outstanding prior to the making of the adjustment
shall thereafter shall have an adjusted Exercise Price (calculated to the
nearest ten millionth) obtained from the following formula:
E' = E x N
-
N'
where:
12
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Exercise Price prior to adjustment.
Following any adjustment to the Exercise Price pursuant to this
Section 11, the amount payable, when adjusted and together with any
consideration allocated to the issuance of the Warrants, shall never be less
than the par value per Warrant Share at the time of such adjustment. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(n) Form of Warrants.
Irrespective of any adjustments in the number or kind of shares
issuable upon the exercise of the Warrants or the Exercise Price, Warrants
theretofore or thereafter issued may continue to express the same number and
kind of shares and Exercise Price as are stated in the Warrants initially
issuable pursuant to this Agreement.
(o) Other Dilutive Events.
In case any event shall occur affecting the Company, as to which the
provisions of this Section 11 are not strictly applicable, but would impact the
holders of Warrants adversely as compared to holders of Common Stock, and the
failure to make any adjustment would not fairly protect the purchase rights
represented by the Warrants as decided by a majority vote of the Company's
outside Directors in accordance with the essential intent and principles of
this Section then, in each such case, the Company shall appoint a firm of
independent public accountants, investment banking or other appraisal firm of
recognized national standing which shall give their opinion upon the
adjustment, if any, on a basis consistent with the essential intent and
principles established in this Section 11, necessary to preserve, without
dilution, the purchase rights represented by the Warrants.
(p) Adjustment for Previously Issued Management Options.
If the exercise price of any of the 7,352,500 options issued to
directors, officers and employees of the Company or its subsidiaries and
outstanding as of the date hereof is greater than the Quoted Price of the
Common Stock on the trading day immediately preceding the date any of the
Warrants are exercised (any such options being referred to as the
"Out-of-the-money Options"), then the number of shares of Common Stock issuable
upon exercise of each Warrant so exercised shall be readjusted immediately
prior to such exercise to what it would have been
13
had the calculation of the number of shares of Common Stock for which the
Warrants were initially exercisable pursuant to the first paragraph of Section
6 not given effect to the exercise of such Out-of-the-money Options.
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 market value on the
day immediately preceding the date the Warrant is presented for exercise,
multiplied by such fraction.
Warrants may be issued in fractional interests. Holders of fractional
interests in Warrants will be entitled to purchase a number of Warrant Shares
equal to the product obtained by multiplying the number of Warrant Shares
issuable with respect to a full Warrant multiplied by the fractional interest
owned by such holder in the Warrant.
SECTION 13. Notices to Warrant Holders. Upon any adjustment of the
number of shares or Exercise Price pursuant to Section 11, the Company shall
within five days, (i) cause to be filed with the Warrant Agent a certificate
executed by the Chief Financial Officer of the Company setting forth the number
of shares of common stock issuable upon exercise of each Warrant after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such calculations are based, and (ii) cause to be given to
each of the registered holders of the Warrant Certificates at his address
appearing on the Warrant register written notice of such adjustments by
first-class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 13. The Warrant Agent shall be fully protected
in relying on any such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of such adjustment unless and until it
shall have received such certificate.
In case:
(a) 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; or
(b) the Company shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other than
regular cash dividends or dividends payable in shares of Common Stock); or
(c) of any consolidation or merger to which the Company is a party and
for which approval of any shareholders 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
14
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 value, or as a result of a subdivision or combination), or a tender offer
or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company proposes to take any action (other than actions of the
character described in Section 11(a) hereof) which would require an adjustment
to the number or type of securities issuable upon exercise of the Warrants
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 the Warrant Certificates at
his address appearing on the Warrant register, at least 5 calendar days prior
to the applicable record date hereinafter specified, or as promptly as
practicable under the circumstances in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (i)
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, or (ii) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, (iii) 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 or (iv) the date on which such
action is to occur, and the nature of such action. 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.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the
right to vote or to consent or to receive notice as shareholders in respect of
the meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 14. Merger, Consolidation or Change of Name of Warrant Agent.
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. 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
15
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 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.
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 (and no implied duties or obligations
shall be read into this Agreement against the Warrant Agent) 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 of its own
selection (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
(whether in its original or facsimile form) 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 such compensation
for all services rendered by the Warrant Agent in the administration and
execution of this Agreement as the Company and the Warrant Agent shall agree in
writing, to reimburse the Warrant Agent for all reasonable expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement (including reasonable
16
fees and expenses of its counsel) and to indemnify the Warrant Agent (and any
predecessor Warrant Agent) and save it harmless against any and all claims
(whether asserted by the Company, a holder or any other person), damages,
losses, expenses (including taxes other than taxes based on the income of the
Warrant Agent), liabilities, including judgments, costs and counsel fees and
expenses, for anything done or omitted by the Warrant Agent in the execution of
this Agreement except as a result of its gross negligence or willful
misconduct. The provisions of this Section 15(e) shall survive the expiration
of the Warrants and the termination of this Agreement.
(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 Warrant
Certificates shall furnish the Warrant Agent with security and indemnity
reasonably satisfactory to it 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 gross
negligence or willful misconduct.
(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.
17
(j) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Warrant Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform any
of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority prohibiting or otherwise
restraining performance of such obligation; provided that the Company must use
its reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written instructions from
the Company may, at the option of the Warrant Agent, set forth in writing any
action proposed to be taken or omitted by the Warrant Agent under this
Agreement and the date on and/or after which such action shall be taken or such
omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a
proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the
date any officer of the Company actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an omission),
the Warrant Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(l) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(m) In addition to the foregoing, the Warrant Agent shall be protected
and shall incur no liability for, or in respect of, any action taken or omitted
by it in connection with its administration of this Agreement if such acts or
omissions are in reliance upon (i) the proper execution of the certification
concerning beneficial ownership appended to the form of assignment and the form
of the election attached hereto unless the Warrant Agent shall have actual
knowledge that, as executed, such certification is untrue, or (ii) the
non-execution of such certification including, without limitation, any refusal
to honor any otherwise permissible assignment or election by reason of such
non-execution.
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 Certificate 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
18
majority of the unexercised Warrants shall be entitled at any time to remove
the Warrant Agent and appoint a successor to such 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; but the former
Warrant Agent upon payment of all fees and expenses due it and its agents and
counsel 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. 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 Certificate 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:
ANC Rental Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx
Attention: Chief Financial Officer
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 Certificate 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:
The Bank of New York
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
SECTION 18. 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 Warrant Certificates 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 materially adversely affect the interests of the holders of
Warrant Certificates. Notwithstanding anything in this Agreement to the
contrary, the prior written consent of the
19
Warrant Agent must be obtained in connection with any supplement or amendment
which alters the rights or duties of the Warrant Agent. The Company and the
Warrant Agent may amend any provision herein with the consent of the holders of
Warrants exercisable for a majority of the Warrant Shares issuable on exercise
of all outstanding Warrants; provided that for purposes of the foregoing only,
the Administrative Agent shall be deemed to be the holder of any Warrants that
have not been released from escrow.
SECTION 19. 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.
SECTION 20. Termination. This Agreement will terminate on any earlier
date if all Warrants have been exercised or expired without exercise. The
provisions of Section 15 hereof shall survive such termination.
SECTION 21. 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 22. 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 the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 23. 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.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ANC RENTAL CORPORATION
By
----------------------------------------
Title:
THE BANK OF NEW YORK
By
----------------------------------------
Title:
21
EXHIBIT A
[Form of Warrant Certificate]
[Face]
THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS THE REGISTRATION PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE WARRANT AGENT AND THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON SEPTEMBER 30, 2011.
No. Warrants
----- -------
Warrant Certificate
ANC RENTAL CORPORATION
This Warrant Certificate certifies that ____________________, or
registered assigns, is the registered holder of __________ Warrants expiring
September 30, 2011 (the "WARRANTS") to purchase shares of Common Stock, $.01
par value (the "COMMON STOCK"), of ANC Rental Corporation, a Delaware
corporation (the "COMPANY"). Each Warrant entitles the holder upon exercise to
receive from the Company on or before 5:00 p.m. New York City Time on September
30, 2011, that number of fully paid and nonassessable shares of Common Stock
(each, a "WARRANT SHARE") as set forth below at the exercise price (the
"EXERCISE PRICE") as determined pursuant to the Warrant Agreement referenced
below 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.
Each Warrant is initially exercisable for one share of Common Stock.
The number of Warrant Shares issuable upon exercise of the Warrants are subject
to adjustment upon the occurrence after September 28, 2001 of certain events
set forth in the Warrant Agreement.
A-1
The initial Exercise Price per share of Common Stock for any Warrant
shall be equal to $0.01 per share. The Exercise Price is subject to adjustment
upon the occurrence of certain events set forth in the Warrant Agreement.
No warrant may be exercised after 5:00 p.m. New York City Time on
September 30, 2011 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.
ANC RENTAL CORPORATION
By
---------------------------------------
[Name]
President
By
---------------------------------------
[Name]
Secretary
Countersigned:
Dated:
---------------------------------,
as Warrant Agent
By
-------------------------------
Authorized Signatory
A-2
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring September 30, 2011 entitling the holder
on exercise to receive shares of Common Stock, par value $0.01 per share, of
the Company (the "COMMON STOCK"), and are issued or to be issued pursuant to a
Warrant Agreement dated as of September 28, 2001 (as amended from time to time,
the "WARRANT AGREEMENT"), duly executed and delivered by the Company to The
Bank of New York, a New York banking corporation, 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 before 5:00 p.m. New York
City time on September 30, 2011. The holder of Warrants evidenced by this
Warrant Certificate may exercise them by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed and
executed, together with payment of the Exercise Price as specified in the
Warrant Agreement at the office of the Warrant Agent. In the event that upon
any exercise of Warrants evidenced hereby the number of Warrants exercised
shall be less than the total number of Warrants evidenced hereby, there shall
be issued to the holder hereof or his assignee a new Warrant Certificate
evidencing the number of Warrants not 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 number of Warrant Shares set forth on the face hereof may, subject
to certain conditions, 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 holders of the Warrants are entitled to certain registration
rights with respect to the Common Stock purchasable upon exercise thereof. Said
registration rights are set forth in full in a Registration Rights Agreement
dated as of September 28, 2001, among the Company and certain investors named
therein, as amended from time to time. A copy of the Registration Rights
Agreement may be obtained by the holder hereof upon written request to the
Company or the Warrant Agent.
Warrant Certificates, when surrendered at the principal corporate
trust 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
A-3
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.
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 ANC Rental
Corporation 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. 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
Signature:
Date:
Signature Guaranteed:
A-4
ANC RENTAL CORPORATION
and
THE BANK OF NEW YORK
-------------------------------
WARRANT AGREEMENT
Dated as of September 28, 2001
WARRANT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. Appointment of Warrant Agent...........................................................1
SECTION 2. Warrant Certificates...................................................................1
SECTION 3. Execution of Warrant Certificates......................................................1
SECTION 4. Registration and Countersignature......................................................2
SECTION 5. Registration of Transfers and Exchanges................................................2
SECTION 6. Terms and Release of Warrants..........................................................3
SECTION 7. Payment of Taxes.......................................................................5
SECTION 8. Mutilated or Missing Warrant Certificates..............................................6
SECTION 9. Reservation of Warrant Shares..........................................................6
SECTION 10. Obtaining Stock Exchange Listings......................................................7
SECTION 11. Adjustment of Number of Warrant Shares.................................................7
SECTION 12. Fractional Interests..................................................................14
SECTION 13. Notices to Warrant Holders............................................................14
SECTION 14. Merger, Consolidation or Change of Name of Warrant Agent..............................15
SECTION 15. Warrant Agent.........................................................................16
SECTION 16. Change of Warrant Agent...............................................................18
SECTION 17. Notices to Company and Warrant Agent..................................................19
SECTION 18. Supplements and Amendments............................................................19
SECTION 19. Successors............................................................................20
SECTION 20. Termination...........................................................................20
SECTION 21. Governing Law.........................................................................20
i
SECTION 22. Benefits of This Agreement............................................................20
SECTION 23. Counterparts..........................................................................20
Exhibit A Form of Warrant Certificate
ii
