EXHIBIT 3
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WARRANT AGREEMENT
BETWEEN
EXIDE TECHNOLOGIES
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
AS WARRANT AGENT
MAY 5, 2004
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TABLE OF CONTENTS
Page
SECTION 1. Appointment of Warrant Agent 2
SECTION 2. Issuances 2
SECTION 3. Form of Warrant Certificates 2
SECTION 4. Execution of Warrant Certificates 3
SECTION 5. Registration and Countersignature 3
SECTION 6. Registration of Transfers and Exchanges 4
SECTION 7. Duration and Exercise of Warrants 7
SECTION 8. Cancellation of Warrants 9
SECTION 9. Mutilated or Missing Warrant Certificates 9
SECTION 10. Reservation of Shares 10
SECTION 11. Stock Exchange Listings 11
SECTION 12. Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants 11
SECTION 13. Fractional Shares 21
SECTION 14. Notices to Warrantholders 21
SECTION 15. Merger, Consolidation or Change of Name of Warrant Agent 22
SECTION 16. Warrant Agent 23
SECTION 17. Change of Warrant Agent 25
SECTION 18. Holder Not Deemed a Stockholder 26
SECTION 19. Notices to Company and Warrant Agent 26
SECTION 20. Payment of Taxes and Charges 27
SECTION 21. Supplements and Amendments 27
SECTION 22. Successors 28
SECTION 23. Termination 28
SECTION 24. Governing Law Venue and Jurisdiction 28
SECTION 25. Benefits of this Agreement 28
SECTION 26. Counterparts 28
SECTION 27. Headings 28
SECTION 28. Meaning of Terms Used in Agreement 28
SECTION 29. Severability 29
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WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is dated as of May 5, 2004,
between EXIDE TECHNOLOGIES, a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, a New York banking corporation (in its capacity
as warrant agent hereunder, the "Warrant Agent").
PRELIMINARY STATEMENTS
WHEREAS, on April 15, 2002 (the "Petition Date"), Exide Technologies
("Old Exide") filed a voluntary petition for reorganization under Chapter 11 of
Title 11 of the United States Code (the "Bankruptcy Code") in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), which
case is being jointly administered for procedural purposes before the Bankruptcy
Court with the cases of certain wholly-owned U.S. subsidiaries of Old Exide
under case number 02-11125 (collectively, the "Chapter 11 Cases").
WHEREAS, pursuant to the Joint Plan of Reorganization of the Official
Committee of Unsecured Creditors and the Debtors (together with the Technical
Amendment (as defined below), the "Plan"), which has been confirmed by the
Bankruptcy Court in the Chapter 11 Cases, the Company will issue warrants (the
"Warrants") entitling the holders to purchase initially an aggregate of up to
6,250,000 shares of common stock, par value $0.01 per share (the "Common Stock")
of the Company (as may be adjusted from time to time pursuant to this Agreement,
the "Shares"). To the extent the reserved shares of Common Stock and Warrants
under the Plan are insufficient to provide for a Pro Rata (as defined in the
Plan) distribution to any Holder (as defined in the Plan) of a Disputed Claim
(as defined in the Plan) as it becomes an Allowed Claim (as defined in the
Plan), the Company may issue additional shares of Common Stock and Warrants as
provided for in the Technical Amendment to the Plan and Plan Supplement filed
with the Bankruptcy Court on April 22, 2004 (the "Technical Amendment").
WHEREAS, the Warrant Agent, at the request of the Company, has agreed
to act as the agent of the Company in connection with the issuance,
registration, transfer, exchange and exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and 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 hereinafter set forth in this Agreement; and the Warrant Agent
hereby accepts such appointment, upon the terms and conditions hereinafter set
forth.
SECTION 2. Issuances. (a) Subject to the provisions of this Agreement,
in accordance with the terms of the Plan, on (and from time to time after) the
Effective Date (as such term is defined in the Plan, and hereinafter referred to
as the "Initial Distribution Date"), Warrants to purchase the Shares will be
issued by the Company in the amounts and to the recipients specified in the
Plan. On or after the Initial Distribution Date, the Company will deliver, or
cause to be delivered, one or more Global Warrant Certificates (as defined
below) evidencing the Warrants in accordance with the terms of the Plan.
(b) At all times, assuming that no adjustments to the number of
Shares of outstanding Common Stock issued as of the Effective Date of the Plan
have occurred other than additional distributions of Common Stock to Creditors
(as defined in the Plan) pursuant to the Plan and no adjustments to the Warrants
have occurred under Section 12 herein, the aggregate number of shares of Common
Stock issued or issuable upon exercise of all Warrants distributed to Creditors
pursuant to the Plan (the "Underlying Common Stock") shall represent 20% of the
sum of (i) the Underlying Common Stock plus (ii) any outstanding Shares of
Common Stock as of the Effective Date of the Plan plus (iii) any additional
distributions of Common Stock to Creditors pursuant to the Plan.
SECTION 3. Form of Warrant Certificates. Subject to Section 6 of this
Agreement, the Warrants shall be issued (1) in the form of one or more warrant
certificates in definitive form (the "Definitive Warrant Certificates") in
substantially the form set forth in Exhibit A-1 hereto, the forms of election to
exercise and of assignment to be printed on the reverse thereof, and (2) in the
form of one or more global certificates (the "Global Warrant Certificates"), the
forms of election to exercise and of assignment to be printed on the reverse
thereof, in substantially the form set forth in Exhibit A-2 hereto, in each case
together with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrant Certificates, as evidenced by their execution of the Warrant
Certificates.
The Global Warrant Certificates shall be deposited on or after the
Initial Distribution Date with, or with the Warrant Agent as custodian for, The
Depository Trust Company (the "Depositary") and registered in the name of Cede &
Co., as the Depositary's nominee. Each Global Warrant Certificate shall
represent such number of the outstanding Warrants as specified therein, and each
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, in accordance with the terms of this Agreement.
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Upon request, a Holder (as defined below) may receive from the
Depositary and the Warrant Agent Warrants in definitive form (the "Definitive
Warrant Certificates" and, together with the Global Warrant Certificates, the
"Warrant Certificates"), substantially in the form of Exhibit A-1 as set forth
in Section 6 below.
SECTION 4. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board of
Directors, its Chief Executive Officer, its President, a Vice President or its
Treasurer (each, an "Officer"). Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of any such Officer 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
Officer.
If any Officer 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 Officer 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 Agreement any such person was not such Officer.
SECTION 5. Registration and Countersignature. The Warrant Agent shall,
upon receipt of the Warrant Certificates duly executed on behalf of the Company,
countersign one or more Warrant Certificates evidencing the Warrants and shall
deliver such Warrant Certificates to or upon the written order of the Company. A
Warrant Certificate shall be, and shall remain, subject to the provisions of
this Agreement until such time as all of the Warrants evidenced thereby shall
have been duly exercised or shall have expired or been canceled in accordance
with the terms hereof.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that such Warrant Certificate so countersigned has been duly
issued hereunder.
The Warrant Agent shall keep, at an office designated for such purpose,
books (the "Warrant Register") in which, subject to such reasonable regulations
as it may prescribe, it shall register the Warrant Certificates and exchanges
and transfers of outstanding Warrant Certificates in accordance with the
procedures set forth in Section 6 of this Agreement, all in form satisfactory to
the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of the Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that may be imposed on the Holder in connection
with any such exchange or registration of transfer. The Warrant Agent shall have
no obligation to effect an exchange or register a transfer unless and until any
payments required by the immediately preceding sentence have been made.
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Prior to due presentment for registration of transfer or exchange of
any Warrant in accordance with the procedures set forth in this Agreement, the
Warrant Agent and the Company may deem and treat the person in whose name any
Warrant is registered (the "Holder" of such Warrant) as the absolute owner of
such Warrant (notwithstanding any notation of ownership or other writing made in
a Warrant Certificate by anyone), for the purpose of any exercise thereof, any
distribution to the Holder thereof and for all other purposes, and neither the
Warrant Agent nor the Company shall be affected by notice to the contrary.
SECTION 6. Registration of Transfers and Exchanges. (a) Transfer and
Exchange of Global Warrant Certificates or Beneficial Interests Therein. The
transfer and exchange of Global Warrant Certificates or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Agreement and the procedures of the Depositary therefor.
(b) Exchange of a Beneficial Interest in a Global Warrant
Certificate for a Definitive Warrant Certificate.
(i) Any Holder of a beneficial interest in a Global
Warrant Certificate may, upon request, exchange such beneficial
interest for a Definitive Warrant Certificate. Upon receipt by the
Warrant Agent from the Depositary or its nominee of written
instructions or such other form of instructions as is customary for the
Depositary on behalf of any person having a beneficial interest in a
Global Warrant Certificate, the Warrant Agent shall cause, in
accordance with the standing instructions and procedures existing
between the Depositary and Warrant Agent, the number of Warrants
represented by the Global Warrant Certificate to be reduced by the
number of Warrants to be represented by the Definitive Warrant
Certificates to be issued in exchange for the interest of such person
in the Global Warrant Certificate and, following such reduction, the
Company shall execute and the Warrant Agent shall countersign and
deliver to the transferee, as the case may be, a Definitive Warrant
Certificate.
(ii) Definitive Warrant Certificates issued in exchange
for a beneficial interest in a Global Warrant Certificate pursuant to
this Section 6(b) shall be registered in such names as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Warrant Agent. The Warrant Agent shall
deliver such Definitive Warrant Certificates to the persons in whose
names such Warrants are so registered.
(c) Transfer and Exchange of Definitive Warrant Certificates. When
Definitive Warrant Certificates are presented to the Warrant Agent with a
request:
(i) to register the transfer of the Definitive Warrant
Certificates; or
(ii) to exchange such Definitive Warrant Certificates for
an equal number of Definitive Warrant Certificates of other authorized
denominations, the Warrant Agent shall register the transfer or make
the exchange as requested if its requirements for such transactions are
met; provided, however, that the Definitive Warrant Certificates
presented or surrendered for registration of transfer or
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exchange shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Warrant Agent, duly executed by
the Holder thereof or by his attorney, duly authorized in writing.
(d) Restrictions on Exchange or Transfer of a Definitive Warrant
Certificate for a Beneficial Interest in a Global Warrant Certificate. A
Definitive Warrant Certificate may not be exchanged for a beneficial interest in
a Global Warrant Certificate except upon satisfaction of the requirements set
forth below. Upon receipt by the Warrant Agent of a Definitive Warrant
Certificate, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Warrant Agent, together with written
instructions directing the Warrant Agent to make, or to direct the Depositary to
make, an endorsement on the Global Warrant Certificate to reflect an increase in
the number of Warrants represented by the Global Warrant Certificate equal to
the number of Warrants represented by such Definitive Warrant Certificate, then
the Warrant Agent shall cancel such Definitive Warrant Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the number of
Warrants represented by the Global Warrant Certificate to be increased
accordingly. If no Global Warrant Certificates are then outstanding, the Company
shall issue and the Warrant Agent shall countersign a new Global Warrant
Certificate representing the appropriate number of Warrants.
(e) Restrictions on Transfer and Exchange of Global Warrant
Certificates. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in Section 6(f)), unless and until it is exchanged in
whole for Definitive Warrant Certificates, a Global Warrant Certificate may not
be transferred as a whole except 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.
(f) Countersigning of Definitive Warrant Certificates in Absence
of Depositary. If at any time:
(i) the Depositary for the Global Warrant Certificates
notifies the Company that the Depositary is unwilling or unable to
continue as Depositary for the Global Warrant Certificates and a
successor Depositary for the Global Warrant Certificates is not
appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, in its sole discretion, notifies the
Warrant Agent in writing that it elects to cause the issuance of
Definitive Warrant Certificates under this Agreement, then the Company
shall execute, and the Warrant Agent, upon written instructions signed
by an officer of the Company, shall countersign and deliver Definitive
Warrant Certificates, in an aggregate number equal to the number of
Warrants represented by the Global Warrant Certificates, in exchange
for such Global Warrant Certificates.
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(g) No Warrants, or Shares issuable upon exercise of the Warrants,
shall be sold, exchanged or otherwise transferred in violation of the Securities
Act of 1933, as amended (the "Securities Act"), or state securities laws.
(h) Cancellation of Global Warrant Certificate. At such time as
all beneficial interests in Global Warrant Certificates have either been
exchanged for Definitive Warrant Certificates, redeemed, repurchased or
cancelled, all Global Warrant Certificates shall be returned to, or retained and
cancelled by, the Warrant Agent.
(i) Obligations with Respect to Transfers and Exchanges of
Warrants.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Warrant Agent is hereby authorized to
countersign, in accordance with the provisions of Section 3 and this
Section 6, Definitive Warrant Certificates and Global Warrant
Certificates as required pursuant to the provisions of this Section 6
and for the purpose of any distribution of additional Warrant
Certificates contemplated by Section 12.
(ii) All Definitive Warrant Certificates and Global
Warrant Certificates issued upon any registration of transfer or
exchange of Definitive Warrant Certificates or Global Warrant
Certificates shall be the valid obligations of the Company, entitled to
the same benefits under this Agreement as the Definitive Warrant
Certificates or Global Warrant Certificates surrendered upon such
registration of transfer or exchange.
(iii) No service charge shall be made to a Holder for any
registration, transfer or exchange but the Company may require payment
of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed on the Holder in connection
with any such exchange or registration of transfer.
(iv) So long as the Depositary, or its nominee, is the
registered owner of a Global Warrant Certificate, the Depositary or
such nominee, as the case may be, will be considered the sole owner or
holder of the Warrants represented by such Global Warrant Certificate
for all purposes under this Agreement. Except as provided in Section
6(b) upon the exchange of a beneficial interest in a Global Warrant
Certificate for a Definitive Warrant Certificate, owners of beneficial
interests in a Global Warrant Certificate will not be entitled to have
any Warrants registered in their names, and will not receive or be
entitled to receive physical delivery of any such Warrants as
Definitive Warrant Certificates and will not be considered the owners
or holders thereof under the Warrants or this Agreement. Neither the
Company nor the Warrant Agent, in its capacity as registrar for such
Warrants, will have any responsibility or liability for any aspect of
the records relating to beneficial interests in a Global Warrant
Certificate or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
(v) Subject to Sections 6(b), (c), (d) and this Section
6(i), the Warrant Agent shall, upon receipt of all information required
to be delivered hereunder,
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from time to time register the transfer of any outstanding Warrants
represented by Warrant Certificates in the Warrant Register, upon
surrender of Warrant Certificates representing such Warrants at the
Warrant Agent Office (as defined below), duly endorsed, and accompanied
by a completed form of assignment, duly signed by the Holder thereof or
by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by an eligible
guarantor institution. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee.
SECTION 7. Duration and Exercise of Warrants.
(a) Each Warrant shall be exercisable, in whole or in part, at any
time and from time to time beginning three months after the Initial Distribution
Date (the "Initial Date") and ending at 5:00 p.m., New York City time, on May
5, 2011 (such date, the "Expiration Date"). On the Expiration Date, the
Warrants will become void and of no value.
(b) Subject to the provisions of this Agreement, including Section
12, each Warrant shall entitle the holder thereof to purchase from the Company
(and the Company shall issue and sell to such holder) one fully paid and
nonassessable Share at a price equal to $32.11 per share (as the same may be
hereafter adjusted pursuant to Section 12, the "Exercise Price").
(c) From and after the Initial Date and until 5:00 p.m., New York
City time, on the Expiration Date with respect to such Warrant, the Holder of a
Warrant may exercise such Holder's right to purchase Shares by:
(i) providing written notice of such election ("Warrant
Exercise Notice") to exercise the Warrant to the Warrant Agent at the
address set forth in Section 19 hereof, "Re: Exide Technologies Warrant
Exercise", by hand, by overnight courier or by facsimile, received by
the Warrant Agent no later than 5:00 p.m., New York City time, on the
Expiration Date, which Warrant Exercise Notice shall be in the form of
an election to purchase Shares substantially in the form set forth
either (x) in Exhibit B-1 hereto, properly completed and executed by
the Holder; provided that such written notice may only be submitted by
persons who hold Definitive Warrant Certificates, or (y) in Exhibit B-2
hereto, properly completed and executed by the Holder; provided that
such written notice may only be submitted with respect to Warrants held
through the book-entry facilities of the Depositary, by or through
persons that are direct participants in the Depositary;
(ii) delivering, either (x) no later than 5:00 p.m., New
York City time, on the business day immediately prior to the Settlement
Date (as defined below) such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depositary or (y) no
later than 5:00 p.m., New York City time, on the business day
immediately prior to the Settlement Date, the Warrant Certificates
evidencing such Warrants to the Warrant Agent if Definitive Warrant
Certificates have been issued and delivered pursuant to Section 3; and
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(iii) paying the applicable Exercise Price multiplied by
the number of Shares in respect of which such Warrants are being
exercised (the "Exercise Amount"), together with any applicable taxes
and governmental charges. The date three business days after a Warrant
Exercise Notice is delivered is referred to for all purposes under this
Agreement as the "Settlement Date".
(d) The Exercise Amount shall be payable in lawful money of the
United States of America either by certified or official bank or bank cashier's
check payable to the order of the Company, or by wire transfer in immediately
available funds of the Exercise Amount to the following account of the Warrant
Agent: Chase ABA ________, Acct _________ or such account of the Warrant Agent
to be specified in writing by the Warrant Agent for such purpose from time to
time.
(e) Any exercise of a Warrant pursuant to the terms of this
Agreement shall be irrevocable and shall constitute a binding agreement between
the Holder and the Company, enforceable in accordance with its terms.
(f) The Warrant Agent shall:
(i) examine all Warrant Exercise Notices and all other
documents delivered to it by or on behalf of holders as contemplated by
the Warrant Certificates to ascertain whether, on their face, such
Warrant Exercise Notices and any such other documents have been
executed and completed in accordance with their terms and the terms of
the Warrant Certificates;
(ii) where a Warrant Exercise Notice or other document
appears on its face to have been improperly completed or executed or
some other irregularity in connection with the exercise of the Warrants
exists, the Warrant Agent shall endeavor to inform the appropriate
parties (including the person submitting such instrument) of the need
for fulfillment of all requirements, specifying those requirements
which appear to be unfulfilled;
(iii) inform the Company of and cooperate with and assist
the Company in resolving any reconciliation problems between Warrant
Exercise Notices received and delivery of Warrants to the Warrant
Agent's account;
(iv) advise the Company no later than one business day
after receipt of a Warrant Exercise Notice, of (i) the receipt of such
Warrant Exercise Notice and the number of Warrants exercised in
accordance with the terms and conditions of this Agreement, (ii) the
instructions with respect to delivery of the shares of Common Stock of
the Company deliverable upon such exercise, subject to timely receipt
from the Depositary of the necessary information, and (iii) such other
information as the Company shall reasonably require; and
(v) subject to Common Stock being made available to the
Warrant Agent by or on behalf of the Company for delivery to the
Depositary, liaise with the Depositary and endeavor to effect such
delivery to the relevant accounts at the Depositary in accordance with
its requirements.
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(g) All questions as to the validity, form and sufficiency
(including time of receipt) of a Warrant exercise will be determined by the
Company in its sole discretion, which determination shall be final and binding.
The Warrant Agent shall incur no liability for or in respect of such
determination by the Company. The Company reserves the right to reject any and
all Warrant Exercise Notices not in proper form or for which any corresponding
agreement by the Company to exchange would, in the opinion of the Company, be
unlawful. Such determination by the Company shall be final and binding on the
Holders, absent manifest error. Moreover, the Company reserves the absolute
right to waive any of the conditions to the exercise of Warrants or defects in
Warrant Exercise Notices with regard to any particular exercise of Warrants. The
Company shall be under no duty to give notice to the Holders of the Warrants of
any irregularities in any exercise of Warrants, nor shall it incur any liability
for the failure to give such notice.
(h) As soon as practicable after the exercise of any Warrant, the
Company shall issue, or otherwise deliver, in authorized denominations to or
upon the order of the Holder of the Warrant Certificates evidencing such
Warrants, either:
(i) if such Holder holds the Warrants being exercised
through the Depositary's book-entry transfer facilities, by same-day or
next-day credit to the Depositary for the account of such Holder or for
the account of a participant in the Depositary the number of Shares to
which such Holder is entitled, in each case registered in such name and
delivered to such account as directed in the Warrant Exercise Notice by
such Holder or by the direct participant in the Depositary through
which such Holder is acting, or
(ii) if such Holder holds the Warrants being exercised in
the form of Definitive Warrant Certificates, by delivery to the address
designated by such Holder in its Warrant Exercise Notice of a physical
certificate representing the number of Shares to which such Holder is
entitled, in fully registered form, registered in such name or names as
may be directed by such Holder. If less than all of the Warrants
evidenced by a Warrant Certificate surrendered upon the exercise of
Warrants are exercised at any time prior to the date of expiration for
the Warrants, a new Warrant Certificate or Certificates shall be issued
for the remaining number of Warrants evidenced by the Warrant
Certificate so surrendered, and the Warrant Agent is hereby authorized
to countersign the required new Warrant Certificate or Certificates
pursuant to the provisions of Section 6 and this Section 7.
SECTION 8. Cancellation of Warrants. If the Company shall purchase or
otherwise acquire Warrants, the Warrant Certificates representing such Warrants
shall thereupon be delivered to the Warrant Agent and be cancelled by it and
retired. The Warrant Agent shall cancel all Warrant Certificates surrendered for
exchange, substitution, transfer or exercise in whole or in part. Such cancelled
Warrant Certificates shall thereafter be disposed of in a manner satisfactory to
the Company.
SECTION 9. Mutilated or Missing Warrant Certificates. If any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
shall issue, and the
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Warrant Agent shall countersign and deliver, 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 the loss, theft or destruction of such Warrant
Certificate and an affidavit or the posting of an indemnity or bond, if
requested by either the Company or the Warrant Agent, 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 and as required by Section 8-405 of
the Uniform Commercial Code as in effect in the State of New York.
SECTION 10. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the Expiration Date, reserve and keep available, free
from preemptive rights and out of its aggregate authorized but unissued or
treasury shares of Common Stock, the number of Shares deliverable upon the
exercise of all outstanding Warrants, and the transfer agent for the Company's
Common Stock (such agent, in such capacity, as may from time to time be
appointed by the Company, the "Transfer Agent") is hereby irrevocably authorized
and directed at all times to reserve such number of authorized and unissued or
treasury shares of Common Stock as shall be required for such purpose. The
Company will keep a copy of this Agreement on file with such Transfer Agent and
with every transfer agent for any Shares issuable upon the exercise of Warrants
pursuant to Section 7. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such Transfer Agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
Transfer Agent with duly executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 12 reducing any Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion or based on the advice 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 Shares at
such Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of
the Warrants will, upon issuance in accordance with the terms of this Agreement,
be fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
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SECTION 11. Stock Exchange Listings. So long as any Warrants remain
outstanding, the Company will use its best efforts and take all necessary action
to have the Warrants and the Shares, immediately upon their issuance upon
exercise of Warrants, (i) listed on each national securities exchange on which
the Common Stock is then listed or (ii) if the Common Stock is not then listed
on any national securities exchange, listed for quotation on the Nasdaq National
Market System or such other over-the-counter quotation system, if any, on which
the Common Stock may then be listed.
SECTION 12. Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 12.
(a) Adjustments for dividends, distributions, etc. If the Company
at any time or from time to time after the date hereof shall (i) pay a dividend
or make a distribution on Common Stock consisting of shares of Common Stock,
(ii) subdivide its outstanding Shares, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue, in a
reclassification of the Common Stock, other securities of the Company (including
any such reclassification in connection with a consolidation or merger of the
Company in which the Company is the surviving entity), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled upon exercise to
receive the kind and number of Shares or other securities of the Company that
such Holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) Adjustments for distributions of cash or assets, etc. If the
Company at any time or from time to time after the date hereof shall distribute
to all holders of Common Stock (including any such distribution made to the
stockholders of the Company in connection with a consolidation or merger in
which the Company is the continuing corporation) evidences of its indebtedness,
cash or assets (other than (A) distributions and dividends payable in shares of
Common Stock or (B) cash dividends or distributions paid out of retained
earnings or surplus legally available for such dividends or distributions),
then, in each case, the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to the record date for the
determination of stockholders entitled to receive such distribution by a
fraction, the numerator of which shall be the Market Price per share of Common
Stock on such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, following the receipt of a
valuation by an independent investment bank of national standing selected by the
Board of Directors) of the portion of the evidences of indebtedness or assets so
to be distributed, applicable to one share of Common Stock, and the denominator
of which shall be such Market Price per share of Common Stock. Such adjustment
shall become effective at the close of business on such record date. The term
"Market Price" shall mean, with respect to any security (including Common
Stock), as of a specified date (the "date of calculation"): (x) the average
closing price of a such security for the ten consecutive trading days
immediately preceding, but not including, the calculation date as reported on
the principal national securities
11
exchange on which the security is listed or admitted to trading or (y) if not
listed or admitted to trading on any national securities exchange, the average
of the closing bid and asked prices during such ten trading day period in the
over-the-counter market as reported by the NASD Automated Quotation System
("Nasdaq") National Market or any comparable system or (z) in all other cases,
as determined in good faith by the Board of Directors of the Company, based on a
written valuation by an independent investment bank of national standing
selected by the Board of Directors.
(c) Adjustments for Organic Change with Consideration Consisting
Solely of Cash. If, on or prior to the third anniversary of the Effective Date,
(A) the Company reorganizes its capital stock, reclassifies its capital stock or
consolidates or merges with or into another person or enters into a business
combination with another person (in the case of a reorganization,
reclassification, consolidation, merger or business combination where the
Company is not the surviving person (such successor or acquiring person being
referred to as the "Successor Person")), or sells, leases, transfers or
otherwise disposes of all or substantially all of its property, assets or
business to another person (each, an "Organic Change"), (B) pursuant to the
terms of such Organic Change, the consideration to be received by or distributed
to the holders of Common Stock of the Company consists solely of cash; and (C)
the aggregate value of such consideration to be distributed to the holders of
Common Stock is less than the Maximum Consideration, then the Successor Person
shall purchase the Warrants on the effective date of the Organic Change for an
amount in cash equal to the Purchase Price.
(d) Adjustments for Organic Change with Publicly Traded Company
and Consideration Consisting of Registered and Listed Shares and/or Other
Property. If, on or prior to the third anniversary of the Effective Date, (A)
the Company consummates an Organic Change, (B) the Successor Person is a
Publicly Traded Company, (C) pursuant to the terms of such Organic Change, the
holders of Common Stock of the Company receive consideration consisting solely
of Registered Shares of the Successor Person that are (or will, within 30 days
following the Organic Change Date, be) Listed or Admitted for Trading and/or
Other Property, and (D) the aggregate value of such consideration (as determined
in good faith by the Board of Directors based on a written valuation by an
independent investment bank of national standing selected by the Board of
Directors) to be distributed to the holders of Common Stock is less than the
Maximum Consideration, then the Successor Person shall elect to either:
(i) provide the Holder with the right to acquire and
receive upon exercise of such Warrants, the number of Registered Shares
of Successor Person and/or Other Property such Holder would have been
entitled to receive had such Holder exercised the Warrant immediately
prior to such Organic Change; or
(ii) purchase the Warrants on the effective date of the
Organic Change for an amount in cash equal to the Purchase Price.
(e) Adjustments for Organic Change with Publicly Traded Company
and Consideration Consisting of Combination of Cash and Registered and Listed
Shares and/or Other Property. If, on or prior to the third anniversary of the
Effective Date, (A) the Company consummates an Organic Change, (B) the Successor
Person is a Publicly Traded Company, (C) pursuant to the terms of such Organic
Change, the holders of Common Stock of the Company
12
receive consideration consisting of a combination of cash and Registered Shares
of the Successor Person that are (or will, within 30 days following the Organic
Change Date, be) Listed or Admitted for Trading and/or Other Property, and (D)
the aggregate value of such consideration (as determined in good faith by the
Board of Directors based on a written valuation by an independent investment
bank of national standing selected by the Board of Directors) to be distributed
to the holders of Common Stock is less than the Maximum Consideration, then the
Successor Person shall elect to either:
(i) provide the Holders of the Warrants with the right to
acquire and receive, upon exercise of such Warrants, (A) the number of
Registered Shares of the Successor Person and/or Other Property such
Holder would have been entitled to receive had such Holder exercised
this Warrant immediately prior to such Organic Change and (B) an amount
of cash equal to a proportion of the Purchase Price which is equal to
the same proportion that the cash amount offered to the holders of
shares of Common Stock bears to the Registered Shares and/or Other
Property which is offered to the holders of shares of Common Stock; or
(ii) purchase the Warrants on the effective date of the
Organic Change for an amount in cash equal to the Purchase Price.
(f) Adjustments for Organic Change with Private Company as
Successor Person. If, on or prior to the third anniversary of the Effective
Date, (A) the Company consummates an Organic Change, (B) the Successor Person is
not a Publicly Traded Company, and (C) the aggregate value of such consideration
(as determined in good faith by the Board of Directors based on a written
valuation by an independent investment bank of national standing selected by the
Board of Directors) to be distributed to the holders of Common Stock is less
than the Maximum Consideration, then the Successor Person shall purchase the
Warrants on the effective date of the Organic Change for an amount in cash equal
to the Purchase Price.
(g) Adjustments for Organic Change for an Amount Greater than the
Maximum Consideration. If, on or prior to the third anniversary of the Effective
Date, (A) the Company consummates an Organic Change which shall be effected in
such a way that the holders of the Common Stock shall be entitled to receive
stock, securities, cash or Other Property (whether such stock, securities, cash
or Other Property are issued or distributed by the Company or any other person)
with respect to or in exchange for the Common Stock, (B) the aggregate value of
such consideration (as determined in good faith by the Board of Directors based
on a written valuation by an independent investment bank of national standing
selected by the Board of Directors) to be distributed to the holders of Common
Stock is greater than the Maximum Consideration and (C) whether or not the
Successor Person is a Publicly Traded Company, then, as a condition of such
Organic Change, lawful and adequate provision shall be made whereby the Holders
of the Warrants shall have the right to acquire and receive upon exercise of
such Warrants such shares of stock, securities, cash or Other Property issuable
or payable (as part of the Organic Change) with respect to or in exchange for
such number of outstanding shares of Common Stock as they would have been
entitled to receive upon exercise of such Warrants had such Warrants been
exercised immediately before such Organic Change, subject to adjustments (as
determined in good faith by the Board of Directors).
13
(h) Adjustments for Organic Change Three Years after the Effective
Date. If, following the third anniversary of the Effective Date, (A) the Company
consummates an Organic Change which shall be effected in such a way that the
holders of the Common Stock shall be entitled to receive stock, securities, cash
or Other Property (whether such stock, securities, cash or Other Property are
issued or distributed by the Company or any other person) with respect to or in
exchange for the Common Stock, (B) whether or not the aggregate value of such
consideration to be distributed to the holders of Common Stock is less than the
Maximum Consideration, and (C) whether or not the Successor Person is a Publicly
Traded Company, then, as a condition of such Organic Change, lawful and adequate
provision shall be made whereby the Holders of the Warrants shall have the right
to acquire and receive upon exercise of such Warrants such shares of stock,
securities, cash or Other Property issuable or payable (as part of the Organic
Change) with respect to or in exchange for such number of outstanding shares of
Common Stock as they would have been entitled to receive upon exercise of such
Warrants had such Warrants been exercised immediately before such Organic
Change, subject to adjustments (as determined in good faith by the Board of
Directors).
(i) Assumption by Successor Person. In the event of any Organic
Change contemplated by Section 12(b) through (h) above, effective provisions
shall be made in the certificate or articles of incorporation of the Successor
Person, or in any contract of sale, merger, conveyance, lease, transfer or
otherwise, so that the provisions set forth herein for the protection of the
rights of the Holders of the Warrants shall thereafter continue to be
applicable; and any such Successor Person shall expressly assume all of the
obligations set forth under Section 12(b) through (h) above.
(j) Notices. The Successor Company shall notify the Company, which
in turn shall notify all Holders, in the manner provided in Section 14, of the
Organic Change at least seven (7) days prior to the Organic Change Date. Such
notice shall state:
(i) the option elected by the Successor Person pursuant
to Section 12(d) or Section 12(e) hereof;
(ii) the expected Organic Change Date;
(iii) the Purchase Price, if applicable;
(iv) a detailed description of the consideration to be
paid per share of Common Stock in the Organic Change to the holders of
Common Stock; and
(v) a description of the procedure and the place or
places where Warrants are to be surrendered for payment of the Purchase
Price. No failure of the Company to give the foregoing notices or
defect therein shall limit the Successor Person's right to, or affect
the validity of the proceedings for, the purchase of Warrants.
(k) Definitions. For purposes of Section 12:
(i) "Black Scholes Warrant Value" shall mean the value of
a Warrant on an Organic Change Date as determined by the Board of
Directors immediately
14
prior to such Organic Change (based upon the advice of an independent
investment bank of national standing selected by the Board of
Directors) and shall be determined by customary nationally recognized
investment banking practices using the Black Scholes model. For
purposes of calculating such amount, (1) the term of the Warrants will
be the time from the Organic Change Date to the Expiration Date, (2)
the assumed volatility will be 40%, (3) the assumed risk-free rate will
equal the yield on the five-year U.S. Treasury securities, (4) the
price for each share of Common Stock will be (x) the average closing
price of a share of Common Stock for the five consecutive trading days
immediately preceding, but not including, the Organic Change Date as
reported on the principal national securities exchange on which the
shares of Common Stock are Listed or Admitted for Trading or (y) if not
Listed or Admitted for Trading on any national securities exchange, the
average of the closing bid and asked prices during such five trading
day period in the over-the-counter market as reported by the Nasdaq
National Market or any comparable system or (z) in all other cases, as
determined in good faith by the Board of Directors of the Company,
following the receipt of a valuation by an independent bank of national
standing selected by the Board of Directors and (v) the Exercise Price,
as adjusted. For illustrative purposes only, an example of the
determination of the Black Scholes Warrant Value is attached hereto as
Exhibit D. The example of the determination of the Black Scholes
Warrant Value set forth on Exhibit D shall not be binding on the Board
of Directors or the investment bank selected by the Company in their
determination of Black Scholes Warrant Value, it being understood that
such investment bank's advice may result in a different calculation of
Black Scholes Warrant Value, despite using the same assumptions set
forth above.
(ii) "Listed or Admitted for Trading" means that the
Registered Shares are listed for trading on the New York Stock Exchange
or the Registered Shares are admitted for trading on the Nasdaq
National Market System.
(iii) "Maximum Consideration" means $957,300,000.
(iv) "Organic Change Date" means the date on which an
Organic Change is consummated.
(v) "Other Property" means any property other than cash
or Qualifying Common Equity Securities.
(vi) "Publicly Traded Company" means a Successor Person
whose shares of common stock (i) are Registered Shares and (ii) are
Listed or Admitted for Trading (or will be Listed or Admitted for
Trading within 30 days following the Organic Change Date).
(vii) "Purchase Price" means, with respect to an Organic
Change occurring:
15
(1) during the period commencing on the
Effective Date until and including the second anniversary
thereof, the Black Scholes Warrant Value; and
(2) during the period commencing on the day
after the second anniversary of the Effective Date until and
including the third anniversary thereof, (x) 0.50 multiplied
by (y) the Black Scholes Warrant Value.
(viii) "Registered Shares" means shares which have been
registered (or will be registered within 30 calendar days following the
Organic Change Date) under Section 12 of the Securities Exchange Act of
1934, as amended, with the Securities and Exchange Commission.
(ix) "Qualifying Common Equity Securities" means the
regular common stock of the surviving entity in a consolidation,
merger, combination or the acquiring entity in a tender or exchange
offer, except that if the surviving entity or acquiring entity has a
parent corporation, it shall be the regular common stock of the parent
corporation.
(l) Adjustments for the issuance of Common Stock at less than
Market Price.
(i) If the Company issues or sells any Common Stock other
than Excluded Stock without consideration or for consideration per
share less than the Market Price of the Common Stock, as of the day of
such issuance or sale, the Exercise Price in effect immediately prior
to each such issuance or sale will immediately (except as provided
below) be reduced to the price determined by multiplying the Exercise
Price, in effect immediately prior to such issuance or sale, by a
fraction, (1) the numerator of which shall be (x) the number of shares
of Common Stock outstanding immediately prior to such issuance or sale
plus (y) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of such
additional shares of Common Stock so issued or sold would purchase at
the Market Price on the last trading day immediately preceding such
issuance or sale and (2) the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such issue or
sale. In such event, the number of shares of Common Stock issuable upon
the exercise of this Warrant shall be increased to the number obtained
by dividing (i) the product of (a) the number of Shares issuable upon
the exercise of this Warrant before such adjustment, and (b) the
Exercise Price in effect immediately prior to the issuance giving rise
to this adjustment by (ii) the new Exercise Price determined in
accordance with the immediately preceding sentence. For the purposes of
any adjustment of the Exercise Price and the number of Shares issuable
upon exercise of this Warrant pursuant to this Section 12(l), the
following provisions shall be applicable:
(1) In the case of the issuance of Common Stock
for cash, the amount of the consideration received by the
Company shall be deemed to be the amount of the cash proceeds
received by the Company for such
16
Common Stock before deducting therefrom any discounts or
commissions allowed, paid or incurred by the Company for any
underwriting or placement in connection with the issuance and
sale thereof.
(2) In the case of the issuance of Common Stock
(otherwise than upon the conversion of any securities of the
Company) for a consideration in whole or in part other than
cash, including securities acquired in exchange therefor
(other than securities by their terms so exchangeable), the
consideration other than cash shall be deemed to be the fair
value thereof (which, in the case of consideration consisting
of securities which are publicly traded, the Market Price of
such securities) as determined by the Board of Directors based
on a written valuation from an independent investment bank of
national standing selected by the Board of Directors.
(3) In the case of the issuance of (a) options,
warrants or other rights to purchase or acquire Common Stock
(whether or not at the time exercisable) or (b) securities by
their terms convertible into or exchangeable for Common Stock
(whether or not at the time so convertible or exchangeable) or
options, warrants or rights to purchase such convertible or
exchangeable securities (whether or not at the time
exercisable):
(a) the aggregate maximum number of
shares of Common Stock deliverable upon exercise of
such options, warrants or other rights to purchase or
acquire Common Stock shall be deemed to have been
issued at the time such options, warrants or rights
are issued and for a consideration equal to the
consideration (determined in the manner provided in
Section 12(l)(1) and (2)), if any, received by the
Company upon the issuance of such options, warrants
or rights plus the minimum purchase price provided in
such options, warrants or rights for the Common Stock
covered thereby;
(b) the aggregate maximum number of
shares of Common Stock deliverable upon conversion of
or in exchange for any such convertible or
exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or
acquire such convertible or exchangeable securities
and the subsequent conversion or exchange thereof,
shall be deemed to have been issued at the time such
securities were issued or such options, warrants or
rights were issued and for a consideration equal to
the consideration, if any, received by the Company
for any such securities and related options, warrants
or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the
additional consideration (determined in the manner
provided in Section 12(l)(1) and (2)), if any, to be
received by the
17
Company upon the conversion or exchange of such
securities, or upon the exercise of any related
options, warrants or rights to purchase or acquire
such convertible or exchangeable securities and the
subsequent conversion or exchange thereof;
(c) on any change in the number of
shares of Common Stock deliverable upon exercise of
any such options, warrants or rights or conversion or
exchange of such convertible or exchangeable
securities or any change in the consideration to be
received by the Company upon such exercise,
conversion or exchange, but excluding changes
resulting from the anti-dilution provisions thereof
(to the extent comparable to the anti-dilution
provisions contained herein), the Exercise Price and
the number of Shares issuable upon exercise of this
Warrant as then in effect shall forthwith be
readjusted to such Exercise Price and number of
Shares as would have been obtained had an adjustment
been made upon the issuance of such options, warrants
or rights not exercised prior to such change, or of
such convertible or exchangeable securities not
converted or exchanged prior to such change, upon the
basis of such change;
(d) on the expiration or cancellation
of any such options, warrants or rights (without
exercise), or the termination of the right to convert
or exchange such convertible or exchangeable
securities (without exercise), if the Exercise Price
and the number of Shares issuable upon exercise of
this Warrant shall have been adjusted upon the
issuance thereof, the Exercise Price and the number
of Shares issuable upon exercise of this Warrant
shall forthwith be readjusted to such Exercise Price
and number of Shares as would have been obtained had
an adjustment been made upon the issuance of such
options, warrants, rights or such convertible or
exchangeable securities on the basis of the issuance
of only the number of shares of Common Stock actually
issued upon the exercise of such options, warrants or
rights, or upon the conversion or exchange of such
convertible or exchangeable securities; and
(e) if the Exercise Price and the
number of Shares issuable upon exercise of this
Warrant shall have been adjusted upon the issuance of
any such options, warrants, rights or convertible or
exchangeable securities, no further adjustment of the
Exercise Price and the number of Shares issuable upon
exercise of this Warrant shall be made for the actual
issuance of Common Stock upon the exercise,
conversion or exchange thereof.
(ii) For the purposes of Section 12 (l), the following
definitions apply:
18
(1) "Excluded Stock" means:
(a) shares of Common Stock issued by the Company
as a stock dividend payable in shares of Common Stock, or upon
any subdivision or split-up of the outstanding shares of
Common Stock in each case which is subject to Section 12(a)
(but not the issuance of such Common Stock which will be
subject to the provisions of Section 12(l)(i)(3));
(b) the issuance of shares of Common Stock in
any registered firm commitment underwritten public offering
which, for the avoidance of doubt, shall not be taken to
include a transaction involving a private placement of shares
of Common Stock in the Company, including one which is
followed by a registration statement of the shares so placed
within 90 days of the closing of such placement (provided
further, however, that the determination of Market Price in
such private placement transaction shall not take into account
usual and customary placement agent fees, discounts and
commissions);
(c) the issuance of Common Stock in connection
with any debt financing (including upon the exercise of any
warrants issued in connection with such financings) approved
by the Board of Directors from or with one or more
unaffiliated third parties, provided that any such issuances,
in the aggregate, shall in no event exceed 10% of the then
current outstanding shares of Common Stock (calculated on a
fully diluted basis, as adjusted);
(d) the issuance of shares of Common Stock
(including upon exercise of options) to directors, officers,
and covered employees of the Company pursuant to the Company
Incentive Plan (as defined in the Plan);
(e) the issuance of shares of Common Stock in
connection with acquisitions of assets or securities of
another Person (other than issuances to affiliates of the
Company) in a bona fide arm's length transaction approved by
the Board of Directors, where the price of the shares of
Common Stock at issuance is lower than the Market Price on the
date the agreement for such acquisition was executed by virtue
of a change in the trading price of the shares of Common
Stock;
(f) the issuance of Common Stock and Warrants in
connection with the Plan; and
(2) "Market Price" has the meaning given in Section
12(b).
19
(m) No adjustment in the number of Shares purchasable hereunder
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1.0%) in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments that by reason
of this Section 12(m) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations shall be made
to the nearest cent and to the nearest one-hundredth of a share of Common Stock,
as the case may be.
(n) Whenever the number of shares of Common Stock purchasable upon
the exercise of any Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to issue additional Warrants in substitution
for an adjustment in the number of Shares as provided in Section 12(p)), the
Exercise Price payable upon exercise of such Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Shares purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of Shares so purchasable immediately
thereafter.
(o) For the purpose of this Section 12, the term "shares of Common
Stock" shall mean (i) the shares of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to Section 12(a), the holders of Warrants shall become entitled to
purchase any shares of the Company other than shares of Common Stock, thereafter
the number of such other shares so purchasable upon exercise of each Warrant and
the applicable Exercise Price of such shares shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to such shares contained in Section 12(a) through (n),
inclusive, above, and the provisions contained in this Agreement with respect to
such shares of Common Stock, shall apply on like terms to any such other shares.
(p) The Company may elect, in its sole discretion, on or after the
date of any adjustment required by paragraphs (a) through (n) of this Section
12, to adjust the number of Warrants in substitution for an adjustment in the
number of Shares purchasable upon the exercise of a Warrant. Each of the
Warrants outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of Shares as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
one-hundredth) obtained by dividing the applicable Exercise Price in effect
prior to adjustment of such Exercise Price by the applicable Exercise Price in
effect after adjustment of such Exercise Price. The Company shall notify the
holders of Warrants of its election to adjust the number of Warrants in the same
manner as provided in the first paragraph of Section 14, indicating the record
date for the adjustment, and, if known at the time, the amount of the adjustment
to be made, and shall give prompt written notice thereof to the Warrant Agent.
This record date may be the date on which the Exercise Price is adjusted or any
day thereafter. Upon each adjustment of the number of Warrants pursuant to this
Section 12(p) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 13, the additional Warrants to which
such holders shall be entitled as a result
20
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Sections 4 and 5 (and which may bear, at the option of the Company,
the applicable adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(q) Except as provided in Section 12(a), no adjustment in respect
of any dividends shall be made during the term of a Warrant or upon the exercise
of a Warrant.
(r) Irrespective of any adjustments in an Exercise Price or the
number or kind of shares of Common Stock 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 of Common Stock as are stated in the
Warrants initially issuable pursuant to this Agreement. The Company, however,
may at any time in its sole discretion make any change in the form of Warrant
Certificate that it may deem appropriate to give effect to such adjustments and
that does not affect the substance of the Warrant Certificate (including the
rights, duties or obligations of the Warrant Agent), and any Warrant Certificate
thereafter issued, whether in exchange or substitution for an outstanding
Warrant Certificate or otherwise, may be in the form as so changed.
SECTION 13. Fractional Shares. Notwithstanding any adjustment pursuant
to Section 12 in the number of Shares purchasable upon the exercise of a
Warrant, the Company shall not be required to issue Warrants to purchase
fractions of Shares, or to issue fractions of Shares upon exercise of the
Warrants, or to distribute certificates which evidence fractional Shares.
SECTION 14. Notices to Warrantholders. Upon any adjustment of the
number of Shares purchasable upon exercise of each Warrant, any Exercise Price
or the number of Warrants outstanding including any adjustment pursuant to
Section 12, the Company, within 20 calendar days thereafter (except as otherwise
provided in Section 12(j)), shall (i) cause to be filed with the Warrant Agent a
certificate signed by the Chairman of the Board, Chief Executive Officer, the
President, any Vice President or Treasurer of the Company setting forth the
event giving rise to such adjustment, such Exercise Price and either the number
of Shares purchasable upon exercise of each Warrant or the additional number of
Warrants to be issued for each previously outstanding Warrant, as the case may
be, after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such adjustment was made, 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 the
Warrant Certificates at such holder's 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 14. The
Warrant Agent shall be fully protected in relying in good faith on any such
certificate and in making any adjustment described therein and shall have no
duty with respect to, and shall not be deemed to have knowledge of, any
adjustment unless and until it shall have received such a certificate.
21
If:
(a) the Company shall order, declare, make or pay any dividend
payable in any securities upon its shares of Common Stock or make any
distribution (other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or securities convertible into
shares of Common Stock or any right to subscribe thereto;
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of all or
substantially all of its property, assets and business as an entirety); or
(d) an Organic Change is to be consummated;
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first-class mail, postage prepaid,
and (ii) make a public announcement in a daily newspaper of general circulation
in New York City of such event, and make prompt written notification thereof to
the Warrant Agent, such giving of notice and publication to be completed at
least 10 calendar days (or 20 calendar days in any case specified in paragraph
(c) above) prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
dividend, distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to give the notice required
by this Section 14 or any defect therein shall not affect the legality or
validity of any distribution, right, warrant, dissolution, liquidation or
winding up or the vote upon or any other action taken in connection therewith.
SECTION 15. Merger, Consolidation or Change of Name of Warrant Agent.
Any person into which the Warrant Agent may be merged or converted or with which
it may be consolidated, or any person resulting from any merger, conversion or
consolidation to which the Warrant Agent is a party, or any person succeeding to
the shareholder services business of the Warrant Agent, shall be the successor
to the Warrant Agent hereunder without the execution or filing of any document
or any further act on the part of any of the parties hereto, if such person
would be eligible for appointment as a successor Warrant Agent under the
provisions of Section 17. If any of the Warrant Certificates have been
countersigned but not delivered at the time such successor to the Warrant Agent
succeeds under this Agreement, any such successor to the Warrant Agent may adopt
the countersignature of the original Warrant Agent; and if 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 Warrant Agent; and
in all such cases such Warrant Certificates shall have the full force provided
in the Warrant Certificates and in this Agreement.
22
If at any time the name of the Warrant Agent is changed and at such
time any of the Warrant Certificates have been countersigned but not delivered,
the Warrant Agent whose name has changed may adopt the countersignature under
its prior name; and if at that time any of the Warrant Certificates have not
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 provided in the Warrant
Certificates and in this Agreement.
Section 16. Warrant Agent. The Warrant Agent undertakes only the duties
and obligations expressly imposed by this Agreement and the Warrant Certificate,
in each case 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 accuracy of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. Except as
otherwise provided herein, the Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant Certificates.
(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, nor shall it at
any time be under any duty or responsibility to any holder of a Warrant to make
or cause to be made any adjustment in any Exercise Price or in the number of
Shares issuable upon exercise of any Warrant (except as instructed by the
Company), or to determine whether any facts exist that may require any such
adjustments, or with respect to the nature or extent of or method employed in
making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may also be counsel for the Company), and the Warrant
Agent shall incur no liability or responsibility to the Company or 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, absent gross negligence, bad faith or willful misconduct (each as
determined by a final order, judgment, ruling or decree of a court of competent
jurisdiction) in the selection and continued retention of such counsel and the
reliance on such counsel's advice.
(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 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 under this
Agreement, to reimburse the Warrant Agent upon demand for all reasonable
out-of-pocket expenses incurred by the Warrant Agent in the preparation,
administration, delivery, execution and amendment of this Agreement and the
performance of its duties under this Agreement and to indemnify the Warrant
23
Agent and save it harmless against any and all losses, liabilities and expenses,
including judgments, damages, fines, penalties, claims, demands, costs and
reasonable counsel fees and expenses, for anything done or omitted by the
Warrant Agent arising out of or in connection with this Agreement except as a
result of its negligence, bad faith or willful misconduct (each as determined by
a final order, judgment, ruling or decree of a court of competent jurisdiction).
The costs and expenses incurred by the Warrant Agent in enforcing the right to
indemnification shall be paid by the Company unless it is determined by a final
order, judgment, decree or ruling of a court of competent jurisdiction that the
Warrant Agent is not entitled to indemnification due to its negligence, bad
faith or willful misconduct. Notwithstanding the foregoing, the Company shall
not be responsible for any settlement made without its written consent.
(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 furnishes the Warrant Agent with reasonable security and indemnity
for any costs or expenses that may be incurred. 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 or 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, affiliate, director,
officer or employee thereof, 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 is interested, or contract with or lend money
to the Company or otherwise act as fully and freely as though it was not the
Warrant Agent under this Agreement, or a stockholder director, officer or
employee of the Warrant Agent, as the case may be. 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 that it may do or refrain from
doing in connection with this Agreement except in connection with its own
negligence, bad faith or willful misconduct (each as determined by a final
order, judgment, decree or ruling of a court of competent jurisdiction). In no
event will the Warrant Agent be liable for special, indirect, incidental,
punitive or consequential loss or damage of any kind whatsoever, even if the
Warrant Agent has been advised of the possibility of such loss or damage.
(i) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due and validly authorized execution hereof by the Warrant Agent) or
in respect of the validity or execution of
24
any Warrant Certificate (except its due and validly authorized countersignature
thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, any Vice President, the Treasurer, the Secretary or an
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and such instructions shall be full
authorization and protection to the Warrant Agent and the Warrant Agent shall
not be liable for any action taken, suffered to be taken, or omitted to be taken
by it in good faith in accordance with instructions of any such officer or in
good faith reliance upon any statement signed by any one of such officers of the
Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(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 it believes that repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
(m) If the Warrant Agent shall receive any notice or demand (other
than notice of or demand for exercise of Warrants) addressed to the Company by
any Holder pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.
(n) No provision of this Agreement shall be construed to relieve
the Warrant Agent from liability for its own bad faith or its willful
misconduct.
(o) The provisions of this Section 16 shall survive the
termination of this Agreement, the exercise or expiration of the Warrants and
the resignation or removal of the Warrant Agent.
SECTION 17. Change of Warrant Agent. If the Warrant Agent resigns (such
resignation to become effective not earlier than 90 calendar days after the
giving of written notice thereof to the Company and the Holders) or shall be
adjudged a bankrupt or an insolvent, or shall file a voluntary petition in
bankruptcy or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver of all or any substantial part of its property or
affairs or shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay or meet its debts generally as they become
due, or if an order of any court shall be entered approving any petition filed
by or against the Warrant Agent under the provisions of bankruptcy laws or any
similar legislation, or if a receiver, trustee or other similar official of it
or of all or any substantial part of its property shall be appointed, or if any
public officer shall take charge or control of it or of its property or affairs,
for the purpose of
25
rehabilitation, conservation, protection, relief, winding up or liquidation, or
becomes incapable of acting as Warrant Agent or if the Board of Directors of the
Company by resolution removes the Warrant Agent (such removal to become
effective not earlier than 30 calendar days after the filing of a certified copy
of such resolution with the Warrant Agent and the giving of written notice of
such removal to the registered holders of Warrant Certificates), the Company
shall appoint a successor to the Warrant Agent. If the Company fails to make
such appointment within a period of 60 calendar days after such removal or after
it has been so notified in writing of such resignation or incapacity by the
Warrant Agent or by the registered holder of a Warrant Certificate (in the case
of incapacity), 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 the Warrant Agent, either
by the Company or by such a court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether appointed by
the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under the laws of any state or of the United States of
America. As soon as practicable after appointment of the successor Warrant
Agent, the Company shall cause written notice of the change in the Warrant Agent
to be given to each of the Holders at such Holder's address appearing on the
Warrant Register. After appointment, the successor 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. The former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section 17 or
any defect therein, shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor Warrant Agent, as the case
may be.
SECTION 18. Holder Not Deemed a Stockholder. 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 receive dividends or to consent
or to receive notice as stockholders in respect of the meetings of stockholders
or for the election of directors of the Company or any other matter, or any
rights whatsoever as stockholders of the Company.
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 any
Holder to or on the Company shall be sufficiently given or made if sent by
certified mail, return receipt requested, addressed (until another address is
filed in writing by the Company with the Warrant Agent), or by facsimile
transmission with receipt confirmed, as follows:
Exide Technologies
00000 Xxxxxxxxx Xxxxxxx Xxxxxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
If the Company fails to maintain such office or agency or fails to give
such notice of any change in the location thereof, presentation may be made and
notices and demands may be served at the principal office of the Warrant Agent.
26
Any notice pursuant to this Agreement to be given by the Company or by
any Holder to the Warrant Agent shall be sufficiently given if sent by certified
mail, return receipt requested, addressed (until another address is filed in
writing by the Warrant Agent with the Company), or by facsimile transmission
with receipt confirmed, as follows:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxx XX 00000
Attention: Executive Vice-President
Facsimile No.: (000) 000-0000
The Warrant Agent maintains a Warrant Agent Office at:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxx XX 00000
SECTION 20. Payment of Taxes and Charges. The Company will from time to
time promptly pay to the Warrant Agent, or make provisions satisfactory to the
Warrant Agent for the payment of, all taxes and charges that may be imposed by
the United States or any state upon the Company or the Warrant Agent in
connection with the issuance or delivery of Shares upon the exercise of any
Warrants, but any taxes or charges in connection with the issuance of Warrant
Certificates or certificates for Shares in any name other than that of the
registered holder of the Warrant Certificate surrendered shall be paid by such
registered holder; and, in such case, the Company shall not be required to issue
or deliver any Warrant Certificate or certificate for Shares until such taxes or
charges shall have been paid or it has been established to the Company's
satisfaction that no tax or charge is due. The Warrant Agent shall have no duty
or obligation under this Section unless and until it is satisfied that all such
taxes and charges have been paid.
SECTION 21. Supplements and Amendments. This Agreement constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and may not be amended, except in a writing signed by both
of them.
The Company and the Warrant Agent may from time to time supplement or
amend this Agreement or the Warrants (a) without the approval of any Holders in
order to cure any ambiguity, manifest error or other mistake in this Agreement
or the Warrants, or to correct or supplement any provision contained herein or
in the Warrants that may be defective or inconsistent with any other provision
herein or in the Warrants, or to make any other provisions in regard to matters
or questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change the
interests of the Holders or (b) with the prior written consent of holders of the
Warrants exercisable for a majority of the Shares then issuable upon exercise of
the Warrants then outstanding; provided, however that each amendment or
supplement that decreases the Warrant Agent's rights or
27
increases its duties and responsibilities hereunder shall also require the prior
written consent of the Warrant Agent.
SECTION 22. 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 23. Termination. This Agreement shall terminate on the
Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date when all Warrants have been exercised. The provisions of
Section 16, this Section 23, Section 24 and Section 25 shall survive such
termination and the resignation or removal of the Warrant Agent.
SECTION 24. Governing Law Venue and Jurisdiction. 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 governed
by and construed in accordance with the laws of such State. Each party hereto
consents and submits to the jurisdiction of the courts of the State of New York
and of the federal courts of the Southern District of New York in connection
with any action or proceeding brought against it that arises out of or in
connection with, that is based upon, or that relates to this Agreement or the
transactions contemplated hereby. In connection with any such action or
proceeding in any such court, each party hereto hereby waives personal service
of any summons, complaint or other process and hereby agrees that service
thereof may be made in accordance with the procedures for giving notice set
forth in Section 19 hereof. Each party hereto hereby waives any objection to
jurisdiction or venue in any such court in any such action or proceeding and
agrees not to assert any defense based on lack of jurisdiction or venue in any
such court in any such action or proceeding.
SECTION 25. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person other than the Company, the Warrant Agent and
the Holders any legal or equitable right, remedy or claim under this Agreement,
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 26. Counterparts. This Agreement may be executed in any number
of counterparts and each such counterpart shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 27. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and in no way modify or restrict any of the terms or provisions hereof.
SECTION 28. Meaning of Terms Used in Agreement. The language used in
this Agreement shall be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction shall be applied
against any party. Any references to any federal, state, local or foreign
statute or law shall also refer to all rules and regulations promulgated
thereunder, unless the context otherwise requires. Unless the context otherwise
requires: (a) a term has the meaning assigned to it by this Agreement; (b) forms
of the word "include" mean that the inclusion is not limited to the items
listed; (c) "or" is disjunctive but not
28
exclusive; (d) words in the singular include the plural, and in the plural
include the singular; (e) provisions apply to successive events and
transactions; (f) "hereof", "hereunder", "herein" and "hereto" refer to the
entire Agreement and not any section or subsection; (g) "$" means the currency
of the United States; (h) "business day" means any day, except for Saturday and
Sunday, on which banks are not required or authorized by law or executive order
to close in New York City; and (i) "person" means a natural person, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or other
entity, or a governmental entity or any department, agency or political
subdivision thereof.
SECTION 29. Severability. If any part of this Agreement shall be held
to be invalid or unenforceable by any court, or regulatory agency or body, such
invalidity or unenforceability shall attach only to such part and shall not
affect the validity or enforceability of the rest of this Agreement.
Furthermore, in lieu of any such invalid or unenforceable provision or
condition, the parties hereto intend that there shall be added as a part of this
Agreement a provision as similar in terms and commercial effect to such invalid
or unenforceable provision as may be possible and be valid and enforceable.
[The next page is the signature page]
29
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
EXIDE TECHNOLOGIES
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
30
EXHIBIT A-1
[FORM OF FACE OF WARRANT CERTIFICATE]
VOID AFTER MAY 5, 2011
CUSIP No. 302051 12 3
No.________________ WARRANT TO PURCHASE ____
SHARES OF COMMON STOCK
EXIDE TECHNOLOGIES
WARRANT TO PURCHASE COMMON STOCK
This Warrant Certificate ("Warrant Certificate") certifies
that ________________ or its registered assigns is the registered holder of a
Warrant (the "Warrant") of Exide Technologies, a Delaware corporation (the
"Company"), to purchase the number of shares (the "Shares") of Common Stock, par
value $0.01 per share (the "Common Stock"), of the Company set forth above. This
warrant expires in the year 2011 on the date set forth in the Warrant Agreement,
which date is the seventh anniversary of the effective date of the Plan (such
date, the "Expiration Date"), and entitles the holder to purchase from the
Company the number of fully paid and nonassessable Shares set forth above at the
exercise price (the "Exercise Price") multiplied by the number of Shares set
forth above (the "Exercise Amount"), payable to the Company by wire transfer in
immediately available funds of the Exercise Amount to an account of the Warrant
Agent specified in writing by the Warrant Agent for such purpose, no later than
5:00 p.m. New York City time, on the business day immediately prior to the
settlement date, which settlement date is three business days after a Warrant
Exercise Notice is delivered (the "Settlement Date"). The initial Exercise Price
shall be $32.11.
Subject to the terms and conditions set forth herein and in
the Warrant Agreement, this Warrant may be exercised by the Holder thereof, by:
(i) providing written notice of such election
("Warrant Exercise Notice") to exercise the Warrant to the
Warrant Agent at the address set forth in the Warrant
Agreement, "Re: Exide Technologies Warrant Exercise", by hand
or by facsimile, no later than 5:00 p.m., New York City time,
on the Expiration Date, which Warrant Exercise Notice shall
substantially be in the form of an election to purchase Shares
set forth Exhibit B-1 on the reverse hereof, properly
completed and executed by the Holder;
(ii) delivering no later than 5:00 p.m., New York
City time, on the business day immediately prior to the
Settlement Date, the Warrant Certificates evidencing such
Warrants to the Warrant Agent; and
(iii) paying the applicable Exercise Amount,
together with any applicable taxes and governmental charges.
A1-1
The Exercise Price and the number of Shares purchasable upon
exercise of this Warrant are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
No Warrant may be exercised prior to the Initial Date or after
the Expiration Date. After the Expiration Date, the Warrants will become wholly
void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. 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.
A1-2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed by its duly authorized officer.
Dated:
----------------------
EXIDE TECHNOLOGIES
By:
-----------------------------------
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By:
------------------------------------
Name:
Title:
A1-3
[FORM OF REVERSE OF WARRANT CERTIFICATE]
EXIDE TECHNOLOGIES
The Warrant evidenced by this Warrant Certificate is a part of
a duly authorized issue of Warrants to purchase a maximum of 6,250,000 shares of
Common Stock issued pursuant to that certain Warrant Agreement, dated as of the
effective date of the Plan (the "Warrant Agreement"), duly executed and
delivered by the Company and American Stock Transfer & Trust Company, as Warrant
Agent (the "Warrant Agent"). The Warrant Agreement hereby is 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 inspected at the Warrant
Agent Office and is available upon written request addressed to the Company. All
capitalized terms used on the face of this Warrant Certificate herein but not
defined that are defined in the Warrant Agreement shall have the meanings
assigned to them therein.
Warrants may be exercised to purchase Shares from the Company
from the Initial Date through 5:00 p.m. New York City time on the Expiration
Date, at the Exercise Price set forth on the face hereof, subject to adjustment
as described in the Warrant Agreement. Subject to the terms and conditions set
forth herein and in the Warrant Agreement, the Holder of the Warrant evidenced
by this Warrant Certificate may exercise such Warrant by:
(i) providing a Warrant Exercise Notice to
exercise the Warrant to the Warrant Agent at the address set
forth in the Warrant Agreement, "Re: Exide Technologies
Warrant Exercise," by hand or by facsimile, no later than 5:00
p.m., New York City time, on the Expiration Date, which
Warrant Exercise Notice shall substantially be in the form of
an election to purchase Shares set forth herein, properly
completed and executed by the Holder;
(ii) delivering, no later than 5:00 p.m., New
York City time, on the business day immediately prior to the
Settlement Date, the Warrant Certificates evidencing such
Warrants to the Warrant Agent; and
(iii) paying the applicable Exercise Amount,
together with any applicable taxes and governmental charges.
The Exercise Amount shall be payable by wire transfer in
immediately available funds of the Exercise Amount to an
account of the Warrant Agent specified in writing by the
Warrant Agent for such purpose, no later than 5:00 p.m., New
York City time, on the business day immediately prior to the
Settlement Date. The initial Exercise Price shall be $32.11.
In the event that upon any exercise of the Warrant evidenced
hereby the number of Shares actually purchased shall be less than the total
number of Shares purchasable upon exercise of the Warrant evidenced hereby,
there shall be issued to the holder hereof, or such holder's assignee, a new
Warrant Certificate evidencing a Warrant to purchase the Shares not so
purchased. No adjustment shall be made for any cash dividends on any Shares
issuable upon
A-1-R
exercise of this Warrant. After the Expiration Date, unexercised Warrants shall
become wholly void and of no value.
The Company shall not be required to issue fractions of Shares
or any certificates that evidence fractional Shares.
Warrant Certificates, when surrendered at the Warrant Agent
office by the registered holder thereof in person or by a legal representative
or attorney duly authorized in writing or by mail 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 a Warrant to purchase in the
aggregate a like number of Shares.
No Warrants may be sold, exchanged or otherwise transferred in
violation of the Securities Act or state securities laws.
The Company and Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary..
[Balance of page intentionally remains blank]
A-2-R
EXHIBIT A-2
[FORM OF FACE OF GLOBAL WARRANT CERTIFICATE]
VOID AFTER MAY 5, 2011
This Global Warrant Certificate is held by The Depositary
Trust Company (the "Depositary") or its nominee in custody for the benefit of
the beneficial owners hereof, and is not transferable to any person under any
circumstances except that (i) this Global Warrant Certificate may be exchanged
in whole but not in part pursuant to Section 6(a) of the Warrant Agreement, (ii)
this Global Warrant Certificate may be delivered to the Warrant Agent for
cancellation pursuant to Section 6(i) of the Warrant Agreement and (iii) this
Global Warrant Certificate may be transferred to a successor Depositary with the
prior written consent of the Company.
Unless this Global Warrant Certificate is presented by an
authorized representative of the Depositary to the Company or the Warrant Agent
for registration of transfer, exchange or payment and any certificate issued is
registered in the name of Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful because the registered owner
hereof, Cede & Co., has an interest herein.
Transfers of this Global Warrant Certificate shall be limited
to transfers in whole, but not in part, to nominees of the Depositary or to a
successor thereof or such successor's nominee, and transfers of portions of this
Global Warrant Certificate shall be limited to transfers made in accordance with
the restrictions set forth in Section 6 of the Warrant Agreement.
No registration or transfer of the securities issuable
pursuant to the Warrant will be recorded on the books of the Company until such
provisions have been complied with.
A2-1
CUSIP No. 302051 12 3
No.________________ WARRANT TO PURCHASE ____
SHARES OF COMMON STOCK
EXIDE TECHNOLOGIES
GLOBAL WARRANT TO PURCHASE COMMON STOCK
This Warrant Certificate ("Warrant Certificate") certifies
that __________________ or its registered assigns is the registered holder of a
Warrant (the "Warrant") of Exide Technologies, a Delaware corporation (the
"Company"), to purchase the number of shares (the "Shares") of Common Stock, par
value $0.01 per share (the "Common Stock"), of the Company set forth above. This
warrant expires in the year 2011 on the date set forth in the Warrant Agreement,
which date is the seventh anniversary of the effective date of the Plan (such
date, the "Expiration Date"), and entitles the holder to purchase from the
Company the number of fully paid and nonassessable Shares set forth above at the
exercise price (the "Exercise Price") multiplied by the number of Shares set
forth above (the "Exercise Amount"), payable to the Company by wire transfer in
immediately available funds of the Exercise Amount to an account of the Warrant
Agent specified in writing by the Warrant Agent for such purpose, no later than
5:00 p.m., New York City time, on the business day immediately prior to the
settlement date, which settlement date is three business days after a Warrant
Exercise Notice is delivered (the "Settlement Date"). The initial Exercise Price
shall be $32.11.
Subject to the terms and conditions set forth herein and in
the Warrant Agreement, this Warrant may be exercised by the Holder thereof, by:
(i) providing written notice of such election
("Warrant Exercise Notice") to exercise the Warrant to the
Warrant Agent at the address set forth in the Warrant
Agreement, "Re: Exide Technologies Warrant Exercise," by hand
or by facsimile, no later than 5:00 p.m., New York City time,
on the Expiration Date, which Warrant Exercise Notice shall
substantially be in the form of an election to purchase Shares
set forth on the reverse hereof, properly completed and
executed by the Holder;
(ii) delivering, no later than 5:00 p.m., New
York City time, on the business day immediately prior to the
Settlement Date, such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depositary;
and
(iii) paying the applicable Exercise Amount,
together with any applicable taxes and governmental charges.
The Exercise Price and the number of Shares purchasable upon
exercise of this Warrant are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
No Warrant may be exercised prior to the Initial Date or after
the Expiration Date. After the Expiration Date, the Warrants will become wholly
void and of no value.
A2-2
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. 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.
A2-3
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be executed by its duly authorized officer.
Dated:
------------------------
EXIDE TECHNOLOGIES
By:
----------------------------------
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By:
----------------------------------
Name:
Title:
A2-4
[FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE]
EXIDE TECHNOLOGIES
The Warrant evidenced by this Warrant Certificate is a part of
a duly authorized issue of Warrants to purchase a maximum of 6,250,000 shares of
Common Stock issued pursuant to that certain Warrant Agreement, dated as of the
effective date of the Plan (the "Warrant Agreement"), duly executed and
delivered by the Company and American Stock Transfer & Trust Company, as Warrant
Agent (the "Warrant Agent"). The Warrant Agreement hereby is 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 inspected at the Warrant
Agent Office and is available upon written request addressed to the Company. All
capitalized terms used on the face of this Warrant Certificate or herein but not
defined that are defined in the Warrant Agreement shall have the meanings
assigned to them therein.
Warrants may be exercised to purchase Shares from the Company
from the Initial Date through 5:00 p.m. New York City time on the Expiration
Date, at the Exercise Price set forth on the face hereof, subject to adjustment
as described in the Warrant Agreement. Subject to the terms and conditions set
forth herein and in the Warrant Agreement, the Holder of the Warrant evidenced
by this Warrant Certificate may exercise such Warrant by:
(i) providing a Warrant Exercise Notice to
exercise the Warrant to the Warrant Agent at the address set
forth in the Warrant Agreement, "Re: Exide Technologies
Warrant Exercise," by hand or by facsimile, no later than 5:00
p.m., New York City time, on the Expiration Date, which
Warrant Exercise Notice shall substantially be in the form of
an election to purchase Shares set forth herein, properly
completed and executed by the Holder;
(ii) delivering, no later than 5:00 p.m., New
York City time, on the business day immediately prior to the
Settlement Date, such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depositary;
and
(iii) paying the applicable Exercise Amount,
together with any applicable taxes and governmental charges.
The Exercise Amount shall be payable by wire transfer in
immediately available funds of the Exercise Amount to an
account of the Warrant Agent specified in writing by the
Warrant Agent for such purpose, no later than 5:00 p.m., New
York City time, on the business day immediately prior to the
Settlement Date. The initial Exercise Price shall be $32.11.
In the event that upon any exercise of the Warrant evidenced
hereby the number of Shares actually purchased shall be less than the total
number of Shares purchasable upon exercise of the Warrant evidenced hereby,
there shall be issued to the holder hereof, or such holder's assignee, a new
Warrant Certificate evidencing a Warrant to purchase the Shares not so
purchased. No adjustment shall be made for any cash dividends on any Shares
issuable upon
A2-1-R
exercise of this Warrant. After the Expiration Date, unexercised Warrants shall
become wholly void and of no value.
The Company shall not be required to issue fractions of Shares
or any certificates that evidence fractional Shares.
Warrant Certificates, when surrendered by book-entry delivery
through the facilities of the Depositary 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 a Warrant to purchase in the aggregate a
like number of Shares.
No Warrants may be sold, exchanged or otherwise transferred in
violation of the Securities Act or state securities laws.
The Company and Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
[Balance of page intentionally remains blank]
A2-2-R
EXHIBIT B-1
[FORM OF ELECTION TO EXERCISE FOR WARRANT
HOLDERS HOLDING WARRANTS IN FORM OF DEFINITIVE
WARRANT CERTIFICATES WHEN WARRANT CERTIFICATES
WILL BE PHYSICALLY DELIVERED IN CONNECTION
WITH THE WARRANT EXERCISE]
(TO BE EXECUTED UPON EXERCISE OF THE WARRANT)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ______ newly issued
shares of Common Stock of Exide Technologies (the "Company") at the Exercise
Price of $_______ per share. The undersigned represents, warrants and promises
that it has the full power and authority to exercise and deliver the Warrants
exercised hereby.
The undersigned represents, warrants and promises that it has
delivered or will deliver in payment for such Shares $_________ by wire transfer
in immediately available funds of the Exercise Amount to an account of the
Warrant Agent specified in writing by the Warrant Agent for such purpose, no
later than 5:00 p.m., New York City time, on the business day immediately prior
to the Settlement Date.
The undersigned requests that a certificate representing the
Shares be registered and delivered as follows:
---------------------------------------------
Name
---------------------------------------------
Address
---------------------------------------------
Delivery Address (if different)
B-1-1
If such number of Shares is less than the aggregate number of
Shares purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the balance of such Shares shall be registered and
delivered as follows:
-----------------------------------
Name
-----------------------------------
Address
-----------------------------------
Delivery Address (if different)
---------------------------------- -----------------------------------
Social Security or Other Taxpayer Signature
Identification Number of Holder
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatsoever. If the
certificate representing the Shares or any
Warrant Certificate representing Warrants
not exercised is to be registered in a name
other than that in which this Warrant
Certificate is registered, the signature of
the holder hereof must be guaranteed.
SIGNATURE GUARANTEED BY:
-----------------------------------------------
THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR, INSTITUTION BANK, STOCKBROKER, SAVINGS AND
LOAN ASSOCIATION OR CREDIT UNION WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15.
B-1-2
EXHIBIT B-2
[FORM OF ELECTION TO EXERCISE WARRANT FOR
HOLDERS HOLDING WARRANTS THROUGH BOOK-ENTRY
FACILITIES OF THE DEPOSITORY TRUST COMPANY
WHEN EXERCISE OF WARRANT WILL OCCUR
THROUGH SUCH FACILITIES]
[TO BE COMPLETED BY DIRECT PARTICIPANT
IN THE DEPOSITORY TRUST COMPANY]
EXIDE TECHNOLOGIES
Warrants to Purchase _______ Shares of Common Stock
(TO BE EXECUTED UPON EXERCISE OF THE WARRANT)
The undersigned hereby irrevocably elects to exercise the
right, represented by ________ Warrants held for its benefit through the
book-entry facilities of The Depository Trust Company (the "Depositary"), to
purchase ________ newly issued shares of Common Stock of Exide Technologies (the
"Company") at the Exercise Price of $________ per share.
The undersigned represents, warrants and promises that (1) it
has delivered or will deliver no later than 5:00 p.m., New York City time, on
two business days after the date on which this Warrant Exercise Notice is
delivered the number of Warrants specified below to the Warrant Agent's account
at the Depositary by book-entry transfer; (2) it has the full power and
authority to exercise and deliver the Warrants exercised hereby; and (3) it has
delivered the exercise price of U.S. $__________ for each Warrant exercised
hereby, by wire transfer in immediately available funds of the Exercise Amount
to an account of the Warrant Agent specified in writing by the Warrant Agent for
such purpose, no later than 5:00 p.m., New York City time, on the business day
immediately prior to the Settlement Date.
The undersigned requests that the principal amount of Warrants
exercised hereby be in registered form in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below; provided, that if the shares of Common Stock are
evidenced by global securities, the shares of Common Stock shall be registered
in the name of the Depositary or its nominee.
Dated:
---------------------
NOTE: THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY
YOU (THROUGH THE CLEARING SYSTEM) OF (1) THE WARRANT AGENT'S ACCOUNT AT THE
DEPOSITARY TO WHICH YOU MUST DELIVER YOUR WARRANTS ON THE EXERCISE DATE AND (2)
THE ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT
AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED. NAME OF DIRECT
PARTICIPANT IN THE DEPOSITARY:
(PLEASE PRINT)
ADDRESS:
------------------------
B-2-1
CONTACT NAME:
--------------------------------
ADDRESS:
------------------------------------
TELEPHONE (INCLUDING INTERNATIONAL CODE):
FAX (INCLUDING INTERNATIONAL CODE):
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER
(IF APPLICABLE):
ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED:
DEPOSITARY ACCOUNT NO.
WARRANT EXERCISE NOTICES WILL ONLY BE VALID IF DELIVERED IN ACCORDANCE WITH THE
INSTRUCTIONS SET FORTH IN THIS NOTIFICATION (OR AS OTHERWISE DIRECTED), MARKED
TO THE ATTENTION OF "EXIDE TECHNOLOGIES WARRANT EXERCISE". WARRANT HOLDER
DELIVERING WARRANTS, IF OTHER THAN THE DIRECT DTC PARTICIPANT DELIVERING THIS
WARRANT EXERCISE NOTICE
NAME:
--------------------------------------
(PLEASE PRINT)
CONTACT NAME:
------------------------------
TELEPHONE (INCLUDING INTERNATIONAL CODE):
FAX (INCLUDING INTERNATIONAL CODE):
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER
(IF APPLICABLE):
------------------------------------------
ACCOUNT TO WHICH THE SHARES OF COMMON STOCK ARE TO
BE CREDITED:
DEPOSITARY ACCOUNT NO.
---------------------
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING
THIS WARRANT EXERCISE NOTICE:
NAME:
-------------------------------------
(PLEASE PRINT)
ADDRESS:
----------------------------------
B-2-2
CONTACT NAME:
---------------------------------
TELEPHONE (INCLUDING INTERNATIONAL CODE):
FAX (INCLUDING INTERNATIONAL CODE):
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER
(IF APPLICABLE):
----------------------------------------
NUMBER OF WARRANTS BEING EXERCISED:
(ONLY ONE EXERCISE PER WARRANT EXERCISE NOTICE)
Signature:
------------------------------
Name:
---------------------------------
Capacity in which Signing:
--------------
Signature Guaranteed BY:
-----------------------------------------------
THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION, BANK, STOCKBROKER, SAVINGS AND
LOAN ASSOCIATIONS OR CREDIT UNION WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15.
B-2-3
EXHIBIT C
[FORM OF ASSIGNMENT]
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED, the undersigned registered holder hereby sells, assigns and
transfers unto
------------------------------------------
Name of Assignee
------------------------------------------
Address of Assignee
this Warrant Certificate, together with all right, title and interest therein,
and does irrevocably constitute and appoint ________________ attorney, to
transfer the Warrant Certificate to purchase _______ shares of Common Stock to
which the Warrant Certificate relates on the books of the Warrant Agent, with
full power of substitution.
-------------------------------- -------------------------------------------
Dated Signature
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Social Security or Other Taxpayer
Identification Number of Assignee
SIGNATURE GUARANTEED BY:
---------------------------------------
THE SIGNATURE MUST BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION, BANK,
STOCKBROKER, SAVINGS AND LOAN ASSOCIATION OR
CREDIT UNION WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15.
C-1
EXHIBIT D
BLACK-SCHOLES WARRANT VALUE PER WARRANT(1)
COMMON STOCK PRICE
$20.00 $22.00 $24.00 $26.00 $28.00 $30.00 $32.00
------ ------ ------ ------ ------ ------ ------
7.0 $5.21 $6.21 $7.26 $8.36 $9.50 $10.68 $11.89
6.5 4.90 5.88 6.91 7.99 9.11 10.27 11.47
REMAINING 6.0 4.58 5.53 6.54 7.60 8.70 9.84 11.02
WARRANT 5.5 4.25 5.17 6.15 7.19 8.27 9.39 10.56
TERM (YEARS) 5.0 3.91 4.80 5.75 6.75 7.81 8.92 10.07
4.5 3.55 4.40 5.32 6.30 7.33 8.42 9.54
4.0 3.17 3.98 4.86 5.81 6.82 7.88 8.99
------------------
(1) Assumes risk-free rate of 3.00%
D-1
