EXHIBIT 4.4
--------------------------------------------------------------------------------
COMMON STOCK WARRANT AGREEMENT*
Dated as of _____________ , 20____
FOR
[UP TO __________________] COMMON STOCK WARRANTS
EXPIRING __________________ , 20____
between
KPMG CONSULTING, INC.
and
[NAME OF COMMON STOCK WARRANT AGENT], as
Common Stock Warrant Agent
-------------------------------------------------------------------------------
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE DETERMINED
IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
TABLE OF CONTENTS
Page
----
PARTIES ........................................................................ 1
RECITALS ....................................................................... 1
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. Issuance of Common Stock Warrants ............................... 1
SECTION 1.02. Form and Execution of Common Stock Warrant Certificates ......... 3
SECTION 1.03. Issuance and Delivery of Common Stock Warrant Certificates ...... 4
SECTION 1.04. Temporary Common Stock Warrant Certificates ..................... 4
SECTION 1.05. Payment of Taxes ................................................ 5
SECTION 1.06. "Holder" ........................................................ 5
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. Duration of Common Stock Warrants ............................... 6
SECTION 2.02. Exercise of Common Stock Warrants ............................... 7
SECTION 2.03. Common Stock Warrant Adjustments ................................ 9
SECTION 2.04. Reservation of Shares ........................................... 9
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. No Rights as Holder of Common Stock Conferred by Common Stock
Warrants or Common Stock Warrant Certificates ............... 10
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Common Stock Warrant
Certificates ................................................ 10
SECTION 3.03. Holders of Common Stock Warrants May Enforce Rights ............. 11
SECTION 3.04. Merger, Consolidation, Sale, Transfer or Conveyance ............. 11
SECTION 3.05. Treatment of Holders of Common Stock Warrant Certificates ....... 12
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. Common Stock Warrant Register; Exchange and Transfer of Common
Stock Warrants .............................................. 13
SECTION 4.02. Treatment of Holders of Common Stock Warrants ................... 14
SECTION 4.03. Cancellation of Common Stock Warrant Certificates ............... 14
--------------------------------------------------------------------------------
* The Table of Contents is not a part of the Common Stock Warrant Agreement.
ARTICLE V
Page
----
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. Common Stock Warrant Agent ............................................ 15
SECTION 5.02. Conditions of Common Stock Warrant Agent's Obligations ................ 15
SECTION 5.03. Compliance With Applicable Laws ....................................... 18
SECTION 5.04. Resignation and Removal; Appointment of Successor ..................... 19
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Supplements and Amendments ............................................ 21
SECTION 6.02. Notices and Demands to the Company and Common Stock Warrant Agent ..... 22
SECTION 6.03. Addresses for Notices ................................................. 22
SECTION 6.04. Governing Law ......................................................... 22
SECTION 6.05. Governmental Approvals ................................................ 22
SECTION 6.06. Persons Having Rights Under Common Stock Warrant Agreement ............ 23
SECTION 6.07. Delivery of Prospectus ................................................ 23
SECTION 6.08. Headings .............................................................. 23
SECTION 6.09. Counterparts .......................................................... 23
SECTION 6.10. Inspection of Agreement ............................................... 24
SECTION 6.11. Further Instruments ................................................... 24
SECTION 6.12. Severability .......................................................... 24
SECTION 6.13. Waiver ................................................................ 24
SECTION 6.14. Termination ........................................................... 24
TESTIMONIUM .......................................................................... 25
SIGNATURES ........................................................................... 25
EXHIBIT A---Common Stock Warrant Agreement Compensation
This COMMON STOCK WARRANT AGREEMENT, dated as of ___________ ___, 20___,
between KPMG Consulting, Inc., a Delaware corporation (the "Company"), and
_______________ , a ___________________ organized and existing under the laws of
_____________, as warrant agent (the "Common Warrant Agent").
WHEREAS, the Company proposes to sell [title of debt securities or common
stock being offered (the "Offered Securities") with] certificates evidencing one
or more warrants (the "Common Stock Warrants" or, individually, a "Common Stock
Warrant") representing the right to purchase shares of the common stock, par
value $.01 per share (including the appropriate number of preferred share
purchase rights (the "Rights")), of the Company (together with the associated
Rights, the "Common Stock"); such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Common
Stock Warrant Certificates"; and
WHEREAS, the Company has duly authorized the execution and delivery of this
Common Stock Warrant Agreement to provide for the issuance of Common Stock
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF COMMON STOCK WARRANTS. Common Stock Warrants may
be issued from time to time, together with or separately from Offered
Securities. Prior to the issuance of any Common Stock Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
1
(1) The title and aggregate number of such Common Stock Warrants.
(2) The offering price of such Common Stock Warrants.
(3) The number of shares of Common Stock that may be purchased upon exercise of
each such Common Stock Warrant (the "Warrant Shares"); the price, the currency
or currency units in which the price may be payable or the manner of determining
the price (the "Common Stock Warrant Price"), at which such shares of Common
Stock may be purchased upon exercise of such Common Stock Warrants; if other
than cash, the property and manner in which the Common Stock Warrant Price may
be paid; and any minimum number of such Common Stock Warrants that are
exercisable at any one time.
(4) The time or times at which, or period or periods during which, such Common
Stock Warrants may be exercised and the final date on which such Common Stock
Warrants may be exercised (the "Expiration Date").
(5) The terms of any right to redeem such Common Stock Warrants.
(6) The terms of any right of the Company to accelerate the exercisability of
Common Stock Warrants upon the occurrence of certain events.
(7) Where the Common Stock Warrant Certificates may be transferred and
exchanged.
(8) Whether such Common Stock Warrants are to be issued with any Offered
Securities and, if so, the number and terms of any such Offered Securities.
(9) The date, if any, on and after which the Common Stock Warrants and the
Offered Securities will be separately transferable (the "Detachable Date").
(10) Any other terms of such Common Stock Warrants not inconsistent with the
provisions of this Agreement.
2
SECTION 1.02. FORM AND EXECUTION OF COMMON STOCK WARRANT CERTIFICATES.
(a) The Common Stock Warrants shall be evidenced by the Common Stock
Warrant Certificates, which shall be in registered form and substantially in
such form or forms as shall be established by or pursuant to a Board Resolution.
Each Common Stock Warrant Certificate, whenever issued, shall be dated the date
it is countersigned by the Common Stock Warrant Agent and may have such letters,
numbers or other marks of identification and such legends or endorsements
printed, lithographed or engraved thereon as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law, rule
or regulation or with any rule or regulation of any securities exchange on which
the Common Stock or Common Stock Warrants may be listed, or to conform to usage,
as the officer of the Company executing the same may approve (such officer's
execution thereof to be conclusive evidence of such approval). Each Common Stock
Warrant Certificate shall evidence one or more Common Stock Warrants.
(b) The Common Stock Warrant Certificates shall be signed in the name and
on behalf of the Company by its Chairman, Chief Executive Officer and President
or any elected Vice President under its corporate seal, and attested by its
Secretary or an Assistant Secretary. Such signatures may be manual or facsimile
signatures of the present or any future holder of any such office and may be
imprinted or otherwise reproduced on the Common Stock Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Common Stock
Warrant Certificates.
(c) No Common Stock Warrant Certificate shall be valid for any purpose, and
no Common Stock Warrant evidenced thereby shall be deemed issued or exercisable,
until such Common Stock Warrant Certificate has been countersigned by the manual
or facsimile signature of the Common Stock Warrant Agent. Such signature by the
Common Stock Warrant Agent upon any Common Stock Warrant Certificate executed by
the Company shall be conclusive evidence that the Common Stock Warrant
Certificate so countersigned has been duly issued hereunder.
3
(d) In case any officer of the Company who shall have signed any Common
Stock Warrant Certificate either manually or by facsimile signature shall cease
to be such officer before the Common Stock Warrant Certificate so signed shall
have been countersigned and delivered by the Common Stock Warrant Agent, such
Common Stock Warrant Certificate nevertheless may be countersigned and delivered
as though the person who signed such Common Stock Warrant Certificate had not
ceased to be such officer of the Company; and any Common Stock Warrant
Certificate may be signed on behalf of the Company by such person, at the actual
date of the execution of such Common Stock Warrant Certificate, and shall be the
proper officer of the Company, although at the date of the execution of this
Agreement such person was not such an officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF COMMON STOCK WARRANT CERTIFICATES.
At any time and from time to time after the execution and delivery of this
Agreement, the Company may deliver Common Stock Warrant Certificates executed by
the Company to the Common Stock Warrant Agent for countersignature. Except as
provided in the following sentence, the Common Stock Warrant Agent shall
thereupon countersign and deliver such Common Stock Warrant Certificates to or
upon the written request of the Company. Subsequent to the original issuance of
a Common Stock Warrant Certificate evidencing Common Stock Warrants, the Common
Stock Warrant Agent shall countersign a new Common Stock Warrant Certificate
evidencing such Common Stock Warrants only if such Common Stock Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Common Stock Warrant Certificates evidencing such Common Stock
Warrants or in connection with their transfer, as hereinafter provided.
SECTION 1.04. TEMPORARY COMMON STOCK WARRANT CERTIFICATES. Pending the
preparation of definitive Common Stock Warrant Certificates, the Company may
execute, and upon the order of the Company the Common Stock Warrant Agent shall
countersign and deliver, temporary Common Stock Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced,
substantially of the tenor of the definitive Common Stock Warrant Certificates
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and
4
other variations as the officer executing such Common Stock Warrant Certificates
may determine, as evidenced by his execution of such Common Stock Warrant
Certificates.
If temporary Common Stock Warrant Certificates are issued, the Company will
cause definitive Common Stock Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Common Stock Warrant
Certificates, the temporary Common Stock Warrant Certificates shall be
exchangeable for definitive Common Stock Warrant Certificates upon surrender of
the temporary Common Stock Warrant Certificates at the corporate trust office of
the Common Stock Warrant Agent [or ____________________], without charge to the
Holder (as defined in Section 1.06 hereof). Upon surrender for cancellation of
any one or more temporary Common Stock Warrant Certificates, the Company shall
execute and the Common Stock Warrant Agent shall countersign and deliver in
exchange therefor definitive Common Stock Warrant Certificates representing the
same aggregate number of Common Stock Warrants. Until so exchanged, the
temporary Common Stock Warrant Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Common Stock Warrant
Certificates.
SECTION 1.05. PAYMENT OF TAXES. The Company will pay all stamp and other
similar duties, if any, to which this Agreement or the original issuance of the
Common Stock Warrants or Common Stock Warrant Certificates may be subject under
the laws of the United States of America or any state or locality. The Company
is not responsible for the payment of any other taxes.
SECTION 1.06. "HOLDER". The term "Holder" or "Holders" as used herein with
reference to a Common Stock Warrant Certificate shall mean the person or persons
in whose name such Common Stock Warrant Certificate shall then be registered as
set forth in the Common Stock Warrant Register to be maintained by the Common
Stock Warrant Agent pursuant to Section 4.01 for that purpose or, in the case of
Common Stock Warrants that are issued with Offered Securities and cannot then be
transferred separately therefrom, the person or persons in whose name the
related Offered Securities shall be registered as set forth in the security
register for such Offered Securities, prior to the Detachable
5
Date. In case of Common Stock Warrants that are issued with Offered Securities
and cannot then be transferred separately therefrom, the Company will, or will
cause the security registrar of any such Offered Securities to, make available
to the Common Stock Warrant Agent at all times (including on and after the
Detachable Date, in the case of Common Stock Warrants originally issued with
Offered Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with Common Stock Warrants
attached thereto as may be necessary to keep the Common Stock Warrant Register
up to date.
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. DURATION OF COMMON STOCK WARRANTS. Each Common Stock Warrant
may be exercised at the time or times, or during the period or periods, provided
by or pursuant to the Board Resolution relating thereto and specified in the
Common Stock Warrant Certificate evidencing such Common Stock Warrant. Each
Common Stock Warrant not exercised at or before 5:00 P.M., New York City time,
on its Expiration Date shall become void, and all rights of the Holder of such
Common Stock Warrant thereunder and under this Agreement shall cease, PROVIDED
that the Company reserves the right to, and may, in its sole discretion, at any
time and from time to time, at such time or times as the Company so determines,
extend the Expiration Date of the Common Stock Warrants for such periods of time
as it chooses; FURTHER PROVIDED that in no case may the Expiration Date of the
Common Stock Warrants (as extended) be extended beyond five years from the
original Expiration Date. Whenever the Expiration Date of the Common Stock
Warrants is so extended, the Company shall at least 20 days prior to the then
Expiration Date cause to be mailed to the Common Stock Warrant Agent and the
registered Holders of the Common Stock Warrants in accordance with the
provisions of this Agreement a notice stating that the Expiration Date has been
extended and setting forth the new Expiration Date. No adjustment shall be made
for any dividends on any Common Stock issuable upon exercise of any Common Stock
Warrant.
6
SECTION 2.02. EXERCISE OF COMMON STOCK WARRANTS.
(a) The Holder of a Common Stock Warrant shall have the right, at its
option, to exercise such Common Stock Warrant and, subject to subsection (f) of
this Section 2.02, purchase the number of shares of Common Stock provided for
therein at the time or times or during the period or periods referred to in
Section 2.01 and specified in the Common Stock Warrant Certificate evidencing
such Common Stock Warrant. No fewer than the minimum number of Common Stock
Warrants as set forth in the Common Stock Warrant Certificate may be exercised
by or on behalf of any one Holder at any one time. Except as may be provided in
a Common Stock Warrant Certificate, a Common Stock Warrant may be exercised by
completing the form of election to purchase set forth on the reverse side of the
Common Stock Warrant Certificate, by duly executing the same, and by delivering
the same, together with payment in full of the Common Stock Warrant Price in
lawful money of the United States of America, in cash or by certified or
official bank check or by bank wire transfer, or in property, in the manner
provided by or pursuant to the Board Resolution relative thereto and specified
in the Common Stock Warrant Certificate evidencing such Common Stock Warrant, to
the Common Stock Warrant Agent. Except as may be provided in a Common Stock
Warrant Certificate, the date on which such Common Stock Warrant Certificate and
payment are received by the Common Stock Warrant Agent as aforesaid shall be
deemed to be the date on which the Common Stock Warrant is exercised and the
relevant shares of Common Stock are issued.
(b) Upon the exercise of a Common Stock Warrant, the Company shall issue,
to or upon the order of the Holder of such Common Stock Warrant, the shares of
Common Stock to which such Holder is entitled, registered, in the case of shares
of Common Stock in registered form, in such name or names as may be directed by
such Holder.
(c) If fewer than all of the Common Stock Warrants evidenced by a Common
Stock Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Common Stock Warrant Agent shall countersign and
deliver, a new Common Stock Warrant Certificate evidencing the number of Common
Stock Warrants remaining unexercised.
7
(d) The Common Stock Warrant Agent shall deposit all funds received by it
in payment of the Common Stock Warrant Price for Common Stock Warrants in the
account of the Company maintained with it for such purpose and shall advise the
Company by telephone by 5:00 P.M., New York City time, of each day on which a
payment of the Common Stock Warrant Price for Common Stock Warrants is received
of the amount so deposited in its account. The Common Stock Warrant Agent shall
promptly confirm such telephone advice in writing to the Company.
(e) The Common Stock Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Common Stock Warrants of
each title exercised as provided herein, (ii) the instructions of each Holder of
such Common Stock Warrants with respect to delivery of the Common Stock issued
upon exercise of such Common Stock Warrants to which such Holder is entitled
upon such exercise, and (iii) such other information as the Company shall
reasonably require. Such notice may be given by telephone to be promptly
confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any stamp or
other tax or other governmental charge that may be imposed in connection with
any transfer involved in the issuance of the Common Stock; and in the event that
any such transfer is involved, the Company shall not be required to issue any
Common Stock (and the Holder's purchase of the shares of Common Stock issued
upon the exercise of such Holder's Common Stock Warrant shall not be deemed to
have been consummated) until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or other
charge is due.
(g) On exercise of the Common Stock Warrants, the Company shall not be
required to deliver fractions of shares of Common Stock; provided, however, that
the Company shall, at its option, either (i) purchase such fraction for an
amount in cash equal to the current value of such fraction computed on the basis
of the closing market price (as quoted on the Nasdaq National Market or, in case
the Common Stock is not quoted on the Nasdaq National Market, such other
exchange on which the Common Stock is then listed or admitted for trading) on
the trading day immediately
8
preceding the day upon which such Common Stock Warrant Certificate was
surrendered for exercise in accordance with this Section 2.02 hereof, or (ii)
issue the reserved factional share of Common Stock. By accepting a Common Stock
Warrant Certificate, the Holder thereof expressly waives any right to receive a
Common Stock Warrant Certificate evidencing any fraction of a Common Stock
Warrant or to receive any fractional share of securities upon exercise of a
Common Stock Warrant, except as expressly provided in this Section 2.02(g).
SECTION 2.03. COMMON STOCK WARRANT ADJUSTMENTS. The terms and conditions,
if any, on which the exercise price of and/or the number of Warrant Shares
covered by a Common Stock Warrant are subject to adjustments will be set forth
in the Prospectus Supplement relating thereto and in the applicable Common Stock
Warrant Certificate. Such terms will include the adjustment mechanism for the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant, the events requiring such adjustments, the events upon which the
Company may, in lieu of making such adjustments, make proper provisions so that
the Holder, upon exercise of such Holder's Common Stock Warrant, would be
treated as if such Holder had been a holder of the Common Stock received upon
such exercise, prior to the occurrence of such events, and provisions affecting
exercise of the Common Stock Warrants in the event of certain events affecting
the Common Stock.
SECTION 2.04. RESERVATION OF SHARES. The Company covenants that it will at
all times reserve and have available from its authorized shares of Common Stock
such number of shares of Common Stock as shall then be issuable on exercise of
all outstanding Common Stock Warrants. The Company covenants that all shares of
Common Stock issuable upon exercise of the Common Stock Warrants shall be
validly issued, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof.
9
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF COMMON STOCK CONFERRED BY COMMON STOCK
WARRANTS OR COMMON STOCK WARRANT CERTIFICATES. A Holder of a Common Stock
Warrant or Common Stock Warrant Certificate shall have none of the rights of a
holder of Common Stock.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED COMMON STOCK WARRANT
CERTIFICATES. Upon receipt by the Company and the Common Stock Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Common Stock Warrant Certificate and of
indemnity (other than in connection with any mutilated Common Stock Warrant
Certificates surrendered to the Common Stock Warrant Agent for cancellation)
reasonably satisfactory to them, the Company shall execute, and the Common Stock
Warrant Agent shall countersign and deliver, in exchange for or in lieu of each
lost, stolen, destroyed or mutilated Common Stock Warrant Certificate, a new
Common Stock Warrant Certificate evidencing a like number of Common Stock
Warrants of the same title. Upon the issuance of a new Common Stock Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other similar tax or other governmental charge
that may be imposed in connection therewith and any other expenses (including
the fees and expenses of the Common Stock Warrant Agent) in connection
therewith. Every substitute Common Stock Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Common Stock Warrant Certificate shall represent a contractual obligation of the
Company, whether or not such lost, stolen or destroyed Common Stock Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
the benefits of this Agreement equally and proportionately with any and all
other Common Stock Warrant Certificates, duly executed and delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of lost,
stolen, destroyed or mutilated Common Stock Warrant Certificates.
10
SECTION 3.03. HOLDERS OF COMMON STOCK WARRANTS MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder may, without
the consent of the Common Stock Warrant Agent, enforce and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, its right to exercise its Common Stock Warrants as
provided in the Common Stock Warrant Certificates and in this Agreement.
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE. (a) In
case any of the following shall occur while any Common Stock Warrants are
outstanding: (i) any reclassification or change in the shares of Common Stock;
or (ii) any consolidation or merger to which the Company is party (other than a
consolidation or a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change in, the outstanding
shares of Common Stock issuable upon exercise of the Common Stock Warrants); or
(iii) any sale, conveyance or lease to another corporation of the property of
the Company as an entirety or substantially as an entirety; then the Company
shall make, or cause such successor or purchasing corporation to make,
appropriate provision by amendment of this Agreement or otherwise so that the
Holders of the Common Stock Warrants then outstanding shall (i) have the right
at any time thereafter and continuing until the Expiration Date, upon exercise
of such Common Stock Warrants, to receive the kind and amount of shares of stock
and other securities and property receivable upon such a reclassification,
change, consolidation, merger, sale, conveyance or lease (collectively, an
"Organic Change") as would be received by a holder of the number of shares of
Common Stock issuable upon exercise of such Common Stock Warrant immediately
prior to such Organic Change and (ii) have the same rights and interests
immediately after such Organic Change as they had immediately prior to such
Organic Change, including, without limitation, provisions for the adjustment of
the Common Stock Warrant Price and number of Warrant Shares, as nearly as may be
practicable. In the case of a consolidation, merger, sale, conveyance or lease,
the Company shall thereupon be relieved of any further obligation hereunder or
under the Common Stock Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon shall cause to be signed, and
shall issue
11
either in its own name or in the name of the Company, any or all of the Common
Stock Warrants issuable hereunder which theretofore shall not have been signed
by the Company, and shall execute and deliver Common Stock in its own name, in
fulfillment of its obligations to deliver Common Stock upon exercise of the
Common Stock Warrants. All the Common Stock Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement as the Common
Stock Warrants theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Common Stock Warrants had been issued at
the date of the execution hereof. In case of any such Organic Change, such
changes in phraseology and form (but not in substance) may be made in the Common
Stock Warrants and the related Common Stock Warrant Certificates thereafter to
be issued as may be appropriate.
(b) The Common Stock Warrant Agent may request a written opinion of legal
counsel reasonably satisfactory to the Common Stock Warrant Agent as conclusive
evidence that any such merger, consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of the Company complies
with the provisions of this Section 3.04.
SECTION 3.05. TREATMENT OF HOLDERS OF COMMON STOCK WARRANT CERTIFICATES.
(a) In the event that the Common Stock Warrants are offered together with, and,
prior to the Detachable Date, are not detachable from, Offered Securities, the
Company, the Common Stock Warrant Agent and all other persons may, prior to such
Detachable Date, treat the holder of the Offered Security as the Holder of the
Common Stock Warrant Certificates initially attached thereto for any purpose and
as the person entitled to exercise the rights represented by the Common Stock
Warrants evidenced by such Common Stock Warrant Certificates, any notice to the
contrary notwithstanding. After the Detachable Date and prior to due presentment
of a Common Stock Warrant Certificate for registration of transfer, the Company
and the Common Stock Warrant Agent may treat the registered Holder of a Common
Stock Warrant Certificate as the absolute Holder thereof for any purpose and as
the person entitled to exercise the rights represented by the Common Stock
Warrants evidenced thereby, any notice to the contrary notwithstanding.
(b) In all other cases, the Company and the Common Stock Warrant
12
Agent may treat the registered Holder of a Common Stock Warrant Certificate as
the absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Common Stock Warrants evidenced thereby,
any notice to the contrary notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. COMMON STOCK WARRANT REGISTER: EXCHANGE AND TRANSFER OF
COMMON STOCK WARRANTS. The Common Stock Warrant Agent shall maintain, at its
corporate trust office [or at _______ __________], a register (the "Common Stock
Warrant Register") in which, upon the issuance of Common Stock Warrants, or on
and after the Detachable Date in the case of Common Stock Warrants not
separately transferable prior thereto, and, subject to such reasonable
regulations as the Common Stock Warrant Agent may prescribe, it shall register
Common Stock Warrant Certificates and exchanges and transfers thereof. The
Common Stock Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Common Stock Warrant Agent [or at
_____________________] , Common Stock Warrant Certificates may be exchanged for
one or more other Common Stock Warrant Certificates evidencing the same
aggregate number of Common Stock Warrants of the same title, or may be
transferred in whole or in part. A Common Stock Warrant Certificate evidencing
Common Stock Warrants that are not then transferable separately from the Offered
Security with which they were issued may be exchanged or transferred prior to
its Detachable Date only together with such Offered Security and only for the
purpose of effecting, or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date, each exchange or
transfer of such Offered Security on the Security Register of the Offered
Securities shall operate also to exchange or transfer the related Common Stock
Warrants. A transfer shall be registered upon surrender of a Common Stock
Warrant Certificate to the Common Stock Warrant Agent at its corporate trust
office [or at _____ ____________________] for transfer, properly endorsed or
13
accompanied by appropriate instruments of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Common Stock Warrant
Agent. Whenever a Common Stock Warrant Certificate is surrendered for exchange
or transfer, the Common Stock Warrant Agent shall countersign and deliver to the
person or persons entitled thereto one or more Common Stock Warrant Certificates
duly executed by the Company, as so requested. The Common Stock Warrant Agent
shall not be required to effect any exchange or transfer which will result in
the issuance of a Common Stock Warrant Certificate evidencing a fraction of a
Common Stock Warrant. All Common Stock Warrant Certificates issued upon any
exchange or transfer of a Common Stock Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Common Stock Warrant Certificate
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer of Common
Stock Warrants, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF COMMON STOCK WARRANTS. Every Holder
of a Common Stock Warrant, by accepting the Common Stock Warrant Certificate
evidencing the same, consents and agrees with the Company, the Common Stock
Warrant Agent and with every other Holder of Common Stock Warrants of the same
title that the Company and the Common Stock Warrant Agent may treat the Holder
of a Common Stock Warrant Certificate (or, if the Common Stock Warrant
Certificate is not then detachable, the Holder of the related Offered Security)
as the absolute owner of such Common Stock Warrant for all purposes and as the
person entitled to exercise the rights represented by such Common Stock Warrant,
any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF COMMON STOCK WARRANT CERTIFICATES. In the
event that the Company shall purchase, redeem or otherwise acquire any Common
Stock Warrants after the issuance thereof, the Common Stock Warrant Certificate
or Certificates evidencing such Common Stock
14
Warrants shall thereupon be delivered to the Common Stock Warrant Agent and be
canceled by it. The Common Stock Warrant Agent shall also cancel any Common
Stock Warrant Certificate (including any mutilated Common Stock Warrant
Certificate) delivered to it for exercise, in whole or in part, or for exchange
or transfer. Common Stock Warrant Certificates so canceled shall be delivered by
the Common Stock Warrant Agent to the Company from time to time, or disposed of
in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. COMMON STOCK WARRANT AGENT. The Company hereby appoints
____________________________ as Common Stock Warrant Agent of the Company in
respect of the Common Stock Warrants upon the terms and subject to the
conditions set forth herein; and _______________________ hereby accepts such
appointment. The Common Stock Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Common Stock Warrant Certificates and
hereby and such further powers and authority acceptable to it to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Common Stock Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. CONDITIONS OF COMMON STOCK WARRANT AGENT'S OBLIGATIONS. The
Common Stock Warrant Agent accepts its obligations set forth herein upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders shall be
subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to promptly pay
the Common Stock Warrant Agent the compensation set forth in Exhibit A hereto
and to reimburse the Common Stock Warrant Agent for reasonable out-of-pocket
expenses (including counsel fees) incurred by the Common Stock Warrant Agent in
connection with the services rendered hereunder by the Common Stock Warrant
Agent. Except as provided in
15
Section 5.03, the Company also agrees to indemnify the Common Stock Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending against any claim of
liability) incurred without negligence or bad faith on the part of the Common
Stock Warrant Agent arising out of or in connection with its appointment as
Common Stock Warrant Agent hereunder.
(b) AGENT FOR THE COMPANY. In acting under this Agreement and in connection
with any Common Stock Warrant Certificate, the Common Stock Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(C) COUNSEL. The Common Stock Warrant Agent may consult with counsel
reasonably satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) DOCUMENTS. The Common Stock Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered or omitted by
it in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be, genuine
and to have been presented or signed by the proper parties.
(e) OFFICER'S CERTIFICATE. Whenever in the performance of its duties
hereunder the Common Stock Warrant Agent shall reasonably deem it necessary that
any fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Common Stock Warrant Agent may
(unless other evidence in respect thereof be herein specifically prescribed), in
the absence of bad faith on its part, rely upon a certificate signed by the Vice
Chairman and Chief Executive Officer, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company (an "Officer's Certificate") delivered by the Company to the Common
Stock Warrant Agent.
16
(f) ACTIONS THROUGH AGENTS. The Common Stock Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the Common
Stock Warrant Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued
employment of such attorneys and agents.
(g) CERTAIN TRANSACTIONS. The Common Stock Warrant Agent, and any officer,
director or employee thereof, may become the owner of, or acquire any interest
in, any Common Stock Warrant, with the same rights that he, she or it would have
if it were not the Common Stock Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in any financial or
other transaction with the Company and may serve on, or as depositary, trustee
or agent for, any committee or body of holders of securities or other
obligations of the Company as if it were not the Common Stock Warrant Agent.
(h) NO LIABILITY FOR INTEREST. The Common Stock Warrant Agent shall not be
liable for interest on any monies at any time received by it pursuant to any of
the provisions of this Agreement or of the Common Stock Warrant Certificates,
except as otherwise agreed with the Company.
(i) NO LIABILITY FOR INVALIDITY. The Common Stock Warrant Agent shall incur
no liability with respect to the validity of this Agreement (except as to the
due execution hereof by the Common Stock Warrant Agent) or any Common Stock
Warrant Certificate (except as to the countersignature thereof by the Common
Stock Warrant Agent).
(j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Common Stock Warrant
Agent shall not be responsible for any of the recitals or representations
contained herein (except as to such statements or recitals as describe the
Common Stock Warrant Agent or action taken or to be taken by it or such
statements or recitals known by the Common Stock Warrant Agent to be false or
misleading) or in any Common Stock Warrant Certificate (except as to the Common
Stock Warrant Agent's countersignature on such Common Stock Warrant
Certificate), all of which recitals and representations are made solely by the
Company.
17
(k) NO IMPLIED OBLIGATIONS. The Common Stock Warrant Agent shall be
obligated to perform only such duties as are specifically set forth herein, and
no other duties or obligations shall be implied. The Common Stock Warrant Agent
shall not be under any obligation to take any action hereunder that may subject
it to any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Common Stock Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the
Company of any Common Stock Warrant Certificate countersigned by the Common
Stock Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the issuance
or exercise of Common Stock Warrants. The Common Stock Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in any Common
Stock Warrant Certificate or in case of the receipt of any written demand from a
Holder with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate
any proceedings at law or otherwise or, except as provided in Section 6.02
hereof, to make any demand upon the Company.
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS. The Common Stock Warrant
Agent agrees to comply with all applicable federal and state laws imposing
obligations on it in respect of the services rendered by it under this Common
Stock Warrant Agreement and in connection with the Common Stock Warrants,
including (but not limited to) the provisions of United States federal income
tax laws regarding information reporting and backup withholding. The Common
Stock Warrant Agent expressly assumes all liability for its failure to comply
with any such laws imposing obligations on it, including (but not limited to)
any liability for failure to comply with any applicable provisions of United
States federal income tax laws regarding information reporting and backup
withholding.
18
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of the Common Stock
Warrants, that there shall at all times be a Common Stock Warrant Agent
hereunder until all the Common Stock Warrants are no longer exercisable.
(b) The Common Stock Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective, subject to the
appointment of a successor Common Stock Warrant Agent and acceptance of such
appointment by such successor Common Stock Warrant Agent, as hereinafter
provided. The Common Stock Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become effective.
Notwithstanding the two preceding sentences, such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Common Stock Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America, any State thereof or
the District of Columbia, and having an office or an agent's office in the City
of New York) and the acceptance of such appointment by such successor Common
Stock Warrant Agent. In the event a successor Common Stock Warrant Agent has not
been appointed and has not accepted its duties within 90 days of the Common
Stock Warrant Agent's notice of resignation, the Common Stock Warrant Agent may
apply to any court of competent jurisdiction for the designation of a successor
Common Stock Warrant Agent. The obligation of the Company under Section 5.02(a)
shall continue to the extent set forth therein notwithstanding the resignation
or removal of the Common Stock Warrant Agent.
(c) In case at any time the Common Stock Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy or similar law, or shall make an
assignment for the benefit of its creditors,
19
or shall consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian for it or for
all or any substantial part of its property shall be appointed, or if an order
of any court shall be entered for relief against it under the provisions of
Title 11 of the United States Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Common Stock Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Common Stock Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Common Stock Warrant Agent. Upon the appointment as
aforesaid of a successor Common Stock Warrant Agent and acceptance by the latter
of such appointment, the Common Stock Warrant Agent so superseded shall cease to
be Common Stock Warrant Agent hereunder.
(d) Any successor Common Stock Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Common Stock Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Common Stock Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Common Stock Warrant Agent
shall be entitled to receive all moneys, securities and other property on
deposit with or held by such predecessor (together with any books and records
relating thereto), as Common Stock Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any successor
Common Stock Warrant Agent to be mailed by first class mail, postage prepaid, to
each Holder at its address appearing on the Common Stock Warrant Register. Such
notice shall set forth the name and address of the successor Common Stock
Warrant Agent. Failure to give any notice provided for in this Section 5.04(e),
or any defect therein, shall not,
20
however, affect the legality or validity of the appointment of the successor
Common Stock Warrant Agent.
(f) Any corporation into which the Common Stock Warrant Agent hereunder may
be merged or converted or any corporation with which the Common Stock Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Common Stock Warrant Agent shall be a
party, or any corporation to which the Common Stock Warrant Agent shall sell or
otherwise transfer all or substantially all of the assets and business of the
Common Stock Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Common Stock Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement and the Common Stock Warrants may be supplemented or
amended by the Company and the Common Stock Warrant Agent, without the consent
of the Holders of Common Stock Warrants, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein or in any other manner which
the Company may deem to be necessary or desirable and which will not materially
adversely affect the interests of the Holders of the Common Stock Warrants.
Every Holder of Common Stock Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after the
effectiveness of any supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as provided in Section 5.04(e)
hereof, to the Holders affected thereby, setting forth in general terms the
substance of such supplement or amendment.
(b) The Company and the Common Stock Warrant Agent may also modify or amend
this Agreement and the Common Stock Warrant Certificates with
21
the consent of the Holders of not fewer than a majority in number of the then
outstanding unexercised Common Stock Warrants affected by such modification or
amendment, for any purpose; PROVIDED, HOWEVER, that no such modification or
amendment that shortens the period of time during which the Common Stock
Warrants may be exercised, or increases the Common Stock Warrant Price (except
as provided in this Agreement) or otherwise materially and adversely affects the
exercise rights of the Holders or reduces the percentage of Holders of
outstanding Common Stock Warrants the consent of which is required for
modification or amendment of this Agreement or the Common Stock Warrants, may be
made without the consent of each Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND COMMON STOCK WARRANT
AGENT. If the Common Stock Warrant Agent shall receive any notice or demand
addressed to the Company by any Holder pursuant to the provisions of the Common
Stock Warrant Certificates, the Common Stock Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications from the Company to
the Common Stock Warrant Agent with respect to this Agreement shall be addressed
to [name of Common Stock Warrant Agent], [__________________________,
______________], Attention: [Corporate Trust Department]; any communications
from the Common Stock Warrant Agent to the Company with respect to this
Agreement shall be addressed to KPMG Consulting, Inc., 0000 Xxxxxxxxxxxxx Xxxxx,
XxXxxx, Xxxxxxxx 00000, Attention: Treasurer (with a copy to the Secretary); or
such other addresses as shall be specified in writing by the Common Stock
Warrant Agent or by the Company.
SECTION 6.04. GOVERNING LAW. THIS AGREEMENT AND THE COMMON STOCK WARRANTS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
___________ APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 6.05. GOVERNMENTAL APPROVALS. The Company will from time to time
use all reasonable efforts to obtain and keep effective any and all
22
permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Common Stock Warrants may be quoted or
authorized for trading and to make all filings under the United States federal
and state laws, which may be or become requisite in connection with the
issuance, sale, trading, transfer or delivery of the Common Stock Warrants, and
the exercise of the Common Stock Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER COMMON STOCK WARRANT AGREEMENT.
Nothing in this Agreement, expressed or implied, and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Common Stock Warrant Agent and the Holders any right, remedy or claim under
or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement herein; and all covenants, conditions, stipulations,
promises and agreements herein contained shall be for the sole and exclusive
benefit of the Company and the Common Stock Warrant Agent and their successors
and of the Holders of Common Stock Warrant Certificates.
SECTION 6.07. DELIVERY OF PROSPECTUS. The Company will furnish to the
Common Stock Warrant Agent sufficient copies of a prospectus or prospectuses
relating to the Common Stock deliverable upon exercise of any outstanding Common
Stock Warrants (each a "Prospectus"), and the Common Stock Warrant Agent agrees
to deliver to the Holder of a Common Stock Warrant, prior to or concurrently
with the delivery of the Common Stock issued upon the exercise thereof, a copy
of the Prospectus relating to such Common Stock.
SECTION 6.08. HEADINGS. The descriptive headings of the several Articles
and Sections and the Table of Contents of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
23
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available during normal business hours at the principal corporate trust office
of the Common Stock Warrant Agent, for inspection by any Holder of Common Stock
Warrants. The Common Stock Warrant Agent may require such Holder to submit its
Common Stock Warrant Certificate for inspection prior to making such copy
available.
SECTION 6.11. FURTHER INSTRUMENTS. The parties shall execute and deliver
any and all such other instruments and shall take any and all such other actions
as may be reasonable or necessary to carry out the intention of this Agreement.
SECTION 6.12. SEVERABILITY. If any provision of this Agreement shall be
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative for any reason by any court of competent jurisdiction, government
authority or otherwise, such holding, declaration or pronouncement shall not
affect adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its terms,
and the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
SECTION 6.13. WAIVER. All the rights and remedies of either party under
this Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party where required hereunder to
any act or occurrence shall not be deemed to be a consent to any other action or
occurrence.
SECTION 6.14. TERMINATION. This Agreement shall terminate as of the close
of business on the Expiration Date, or such earlier date upon which all Common
Stock Warrants shall have been exercised or redeemed, except that the Common
Stock Warrant Agent shall account to the Company as to all Common Stock Warrants
outstanding and all cash held by it as of the close of business on the
Expiration Date.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
KPMG CONSULTING, INC.
[Seal] By _________________________________
Name: _________________________________
Title: _________________________________
Attest:
By _______________________________
Name: _______________________________
Title: _______________________________
______________________________________, as
Common Stock Warrant Agent
[Seal] By: _________________________________
Name: _________________________________
Title: _________________________________
Attest:
By: ________________________
Name: ________________________
Title: ________________________
25
Exhibit A
to
Common Stock Warrant Agreement dated as of ___________ , 20____
[Compensation of Common Stock Warrant Agent]
26
