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Exhibit 4(c)
X.X. XXXXX COMPANY
and
[ ]
As Warrant Agent
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WARRANT AGREEMENT
Dated as of _________ __, 199_
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TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES......................................2
SECTION 1.1 Issuance of Warrants.........................................2
SECTION 1.2 Execution and Delivery of Warrant Certificates...............2
SECTION 1.3 Issuance of Warrant Certificates.............................3
ARTICLE II
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS..................................................3
SECTION 2.1 Warrant Price................................................3
SECTION 2.2 Duration of Warrants.........................................4
SECTION 2.3 Exercise of Warrants.........................................4
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES........................................5
SECTION 3.1 No Rights as Holders of [ ] Conferred by Warrants or
Warrant Certificates.........................................5
SECTION 3.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates....5
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights.............6
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES...................................................6
SECTION 4.1 Exchange and Transfer of Warrant Certificates................6
SECTION 4.2 Treatment of Holders of Warrant Certificates.................7
SECTION 4.3 Cancellation of Warrant Certificates.........................7
ARTICLE V
CONCERNING THE WARRANT AGENT..............................................8
SECTION 5.1 Warrant Agent................................................8
SECTION 5.2 Conditions of Warrant Agent's Obligations....................8
SECTION 5.3 Resignation and Appointment of Successor....................10
SECTION 5.4 Payments of Taxes...........................................11
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ARTICLE VI
MISCELLANEOUS........................................................11
SECTION 6.1 Amendment...............................................11
SECTION 6.2 Notices and Demands to the Company and Warrant Agent....12
SECTION 6.3 Addresses...............................................12
SECTION 6.4 Applicable Law..........................................12
SECTION 6.5 Delivery of Prospectus..................................12
SECTION 6.6 Obtaining of Governmental Approvals.....................12
SECTION 6.7 Persons Having Rights Under Agreement...................13
SECTION 6.8 Headings................................................13
SECTION 6.9 Counterparts............................................13
SECTION 6.10 Inspection of Agreement.................................13
EXHIBIT A
[FORM OF WARRANT CERTIFICATE].........................................1
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of
_________ ___, 199_ between X.X. Xxxxx Company, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (the "Company"), and
[ ], a [ ] duly existing under the laws of [ ], as Warrant Agent (the "Warrant
Agent").
W I T N E S S E T H
WHEREAS, the Company has previously entered into an
Indenture (the "Indenture"), dated as of July 15, 1992, with The First National
Bank of Chicago as trustee (The First National Bank of Chicago and any successor
or successors of such trustee being hereinafter referred to as the "Trustee"),
in connection with the issuance from time to time by the Company of its debt
securities; and
WHEREAS, the Company proposes to issue under the Indenture
$[ ] principal amount of debt securities designated as its [ ] due [ ] (the "[
]") and to provide for the issuance under the Indenture of $[ ] principal amount
of debt securities designated as its [ ] due [ ] (the "[ ]"); and
WHEREAS, the Company proposes to sell the [ ] with warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [ ], such warrant certifi
xxxxx and other warrant certificates issued pursuant to this Agreement being
herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
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ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1 Issuance of Warrants. Warrants shall be
initially issued in connection with the issuance of the [ ] but shall be
separately transferable. Each Warrant Certificate shall evidence one or more
Warrants. Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase [ ] [ ] in the
principal amount of $[ ]. Warrant Certificates shall be initially issued in
units with the [ ], and each Warrant Certificate included in such a unit shall
evidence [ ] Warrants for each $[ ] principal amount of [ ] included in such
unit.
SECTION 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrant Certificates may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of the
Company by the chairman or vice chairman of its Board of Directors, or the
president or treasurer or any vice president of the Company under its corporate
seal, and the same to be attested by its secretary, or any of its assistant
secretaries. Such signatures may be manual or facsimile signatures of the
present or any future such authorized officers and may be imprinted or otherwise
reproduced on the 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 Warrant Certificates.
No Warrant Certificate shall be valid for any purpose until
it 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 the Warrant Certificate so
countersigned has been duly delivered hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
nevertheless may be
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countersigned and delivered, as though the person who signed such Warrant
Certifi xxxxx had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as
used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose (the "Warrant Register").
SECTION 1.3 Issuance of Warrant Certificates. Warrants
relating to the purchase of an aggregate principal amount not exceeding $[ ] of
[ ] (except as provided in Section 3.2) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates, duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to $[ ]
aggregate principal amount of [ ] and shall deliver such Warrant Certificates to
or upon the written order of the Company. Subsequent to such original issuance
of the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates, as
hereinafter provided.
ARTICLE II
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
SECTION 2.1 Warrant Price. The exercise price of each
warrant (the "Warrant Price") shall be determined on the following basis: [If
applicable, insert in the following paragraph relevant amounts in applicable
foreign currency, currency unit or composite currency.]
[If applicable, insert -- The Warrant Price is equal to the
principal amount of [ ] purchased, plus accrued interest from the next preceding
interest payment record date in respect of such [ ].]
[If applicable, insert -- On ________ __, ____ the Warrant
Price is $[ ]. During the period from ________ __, ____, through and including
________ __, ____ the Warrant Price will be $[ ] [, plus [accrued amortization
of the original issue discount] [accrued interest] from ________ __, ____]. On
________
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__, ____ through and including ________ __, ____ the Warrant Price will be $[ ]
[, plus [accrued amortization of the original issue discount] [accrued interest]
from ________ __, ____]. [If applicable, insert -- In each case, the original
issue discount will be amortized at a [ ]% annual rate, computed on a semiannual
basis, using a 360-day year consisting of twelve 30-day months.] [If applicable,
insert -- The original issue discount for each $[ ] principal amount of [ ] is
$[ ].]
SECTION 2.2 Duration of Warrants. Each Warrant evidenced by
a Warrant Certificate may be exercised in whole at any time, as specified
herein, on or after the date thereof and at or before the close of business on
________ __, ____. Each Warrant not exercised at or before the close of business
on ________ __, ____ shall become void, and all rights of the holder under the
Warrant Certificate evidencing such Warrant and under this Agreement shall
cease.
SECTION 2.3 Exercise of Warrants. (a) During the period
specified in Section 2.2, any whole number of Warrants, if the Warrant
Certificate evidencing the same shall have been countersigned by the Warrant
Agent, may be exercised by providing certain information set forth on the
reverse side of the Warrant Certificate and by paying in full, [in lawful money
of the United States of America] [if applicable, insert relevant amounts in
applicable foreign currency, currency unit or composite currency], [in cash or
by certified check, official bank check or bank wire transfer, in each case] [by
bank wire transfer,] in immediately available funds, the Warrant Price for each
Warrant exercised, to the Warrant Agent at its corporate trust office, [ ];
provided that such exercise is subject to receipt by the Warrant Agent of the
Warrant Certificate with the form of election to purchase [ ] set forth on the
reverse side of the Warrant Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price is received by the
Warrant Agent for any Warrant which is exercised shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which such
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment of the Warrant Price for any Warrant which is exercised in the
account of the Company maintained with it for such purpose and shall advise the
Company by telephone at the end of each day on which a wire transfer of the
Warrant Price for the exercise of any Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly
as practicable, advise the Company and the Trustee of the number of Warrants
exercised in accordance with the terms and conditions of this Agreement and the
Warrant Certificates, the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the [ ] to
which such holder is enti tled upon such exercise, and delivery of Warrant
Certificates evidencing the balance, if any, of Warrants remaining after such
exercise and such other information as the Company or the Trustee shall
reasonably require.
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(c) As soon as practicable after the exercise of any Warrant
or Warrants, the Company shall issue, pursuant to the Indenture, to or upon the
written order of the holder of the Warrant Certificate evidencing such Warrant
or Warrants, the [ ] or [ ] in authorized denominations to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder, and, if fewer than all of the Warrants evidenced by
such Warrant Certificate were exercised, a new Warrant Certificate for the
number of warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
the transfer involved in the issue of the [ ]: and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
[ ] 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.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1 No Rights as Holders of [ ] Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of the
[ ], including, without limitation, the right to receive the payment of
principal or of interest on the [ ] or to enforce any of the covenants of the [
] or the Indenture except as otherwise provided in the Indenture or pursuant
thereto.
SECTION 3.2 Lost, Stolen, Destroyed or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to them and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and for a like number of Warrants. Upon
the issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this
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Section in lieu of any lost, stolen or destroyed Warrant Certificate shall
constitute an additional contractual obligation of the Company whether or not
the lost, stolen or destroyed 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 Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
with respect to the replacement of lost, stolen, destroyed or mutilated Warrant
Certificates and shall preclude (to the extent lawful) all other rights or
remedies with respect to the replacement of lost, stolen, destroyed or mutilated
Warrant Certificates.
SECTION 3.3 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
any Warrant Certificate, without the consent of the Warrant Agent, and Trustee,
the holder of any [ ] or the holder of any other Warrant Certificate, may, in
his own behalf and for his own benefit, enforce, or institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, his right to exercise the Warrant or Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.1 Exchange and Transfer of Warrant Certificates.
Upon surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates may be exchanged for other Warrant Certificates in denominations
evidencing Warrants, each Warrant entitling the holder thereof to purchase $[ ]
principal amount of [ ] at the Warrant Price; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate
trust office, the Warrant Register in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender of
the Warrant Certificates to the Warrant Agent at its corporate trust office for
exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Warrant Agent. No
service charge shall be made for any exchange of 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 in connection with any such
exchange. Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons
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entitled thereto a Warrant Certificate or Warrant Certificates duly authorized
and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer that will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange or registration of transfer.
SECTION 4.2 Treatment of Holders of Warrant Certificates.
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the Warrant Register, the Company and the Warrant Agent may treat
the registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.3 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent, and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof. The
Warrant Agent shall promptly notify the Company of any Warrant Certificate which
has been canceled and shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.1 Warrant Agent. The Company hereby appoints [ ]
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
[ ] hereby accepts such appointment. The Warrant Agent shall have the power and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereinafter grant to and confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
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SECTION 5.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth 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 from time to time of the
Warrant Certificates shall be subject:
(a) Performance by the Company. The Company agrees that it
will take any corporate action which may be reasonably necessary in order to
fulfill its obligations under this Agreement and the Warrant Certificates and
that it will not take any action or suffer to exist any condition which would
materially impair its ability to perform its obligations under this Agreement
and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent (or its agents or counsel), arising out of or in connection with its
acting as such Warrant Agent hereunder, as well as the cost and reasonable
expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relation ship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
reasonably satisfactory to it and the Company, and the reasonable opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Warrant Agent hereunder in good
faith and in accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing suffered
by it in reliance in good faith upon any Warrant Certificates, notice,
direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented and signed by
the proper parties.
(f) Certain Transactions. The Warrant Agent, and its
officers, directors and employees may become the owner of, or acquire any
interest in, any
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Warrant Certificates, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable law,
it or they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of holders of [ ] or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement
shall be deemed to prevent the Warrant Agent from acting as trustee under the
Indenture.
(g) No Liability for Interest. The Warrant Agent shall not
be under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or, of the Warrant
Certificates, except through a breach of its obligations under this Agreement.
(h) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth, and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any material expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion, assured to
it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility in
case of default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate 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 6.2 hereof, to make any demand upon
the Company.
SECTION 5.3 Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Warrant
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Certificates, that there shall at all times be a Warrant Agent hereunder until
all of the Warrant Certificates are no longer exercisable.
(b) The 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;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company agrees to accept less notice. The
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. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.2(a) shall continue to the
extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
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 law or similar law or make an
assignment for the benefit of its creditors or 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 of it or of 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 Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be a Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder, and
thereupon such successor 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 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 Warrant Agent shall be
entitled to receive, all monies,
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securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor 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.
SECTION 5.4 Payments of Taxes. The Company will pay all
stamp and other duties, if any, to which, under the laws of the United States of
America, this Agreement or the original issuance of the Warrant Certificates may
be subject.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or in regard to matters
or questions arising under this Agreement as the Company and the Warrant Agent
may deem necessary or desirable, provided such action shall not adversely affect
the interests of the holders of the Warrant Certificates, and provided further
that the Company and the Warrant Agent may amend this Agreement in any manner
prior to the issuance of any Warrants hereunder. With the consent of the holders
of not less than a majority in number of the then outstanding unexercised
Warrants affected, the Company and the Warrant Agent may modify or amend any
other term of this Agreement; provided, however, that no such modification or
amendment may be made without the consent of the holders affected thereby if
such proposed amendment would (i) shorten the period of time during which the
Warrants may be exercised; (ii) otherwise materially and adversely affect the
exercise rights of the holders of the Warrants; or (iii) reduce the number of
outstanding Warrants.
SECTION 6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates or otherwise, the Warrant Agent shall promptly forward such
notice or demand to the Company.
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SECTION 6.3 Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to [ ],
Attention: [ ], and any communications from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to X.X. Xxxxx Company, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Senior Vice President
General Counsel (or such other address as shall be specified in writing by the
Warrant Agent or by the Company, respectively).
SECTION 6.4 Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by the laws of
the State of New York.
SECTION 6.5 Delivery of Prospectus. To the extent required
by applicable law, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus and, if applicable, a prospectus supplement relating to
the [ ] deliverable upon exercise of Warrant Certificates (the "Prospectus"),
and the Warrant Agent agrees that upon the exercise of any Warrant Certificate
by the holder thereof, the Warrant Agent will deliver to such holder, prior to
or concurrently with the delivery of the [ ] issued upon such exercise, a
Prospectus.
SECTION 6.6 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be reasonably necessary to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings under United
States Federal and state laws, which may be or become requisite in connection
with the issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the [ ]
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 6.7 Persons Having Rights Under 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
to give to, any person or corporation other than the Company, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or claim under or
by reason of this Agreement or of any covenant, condition, stipulation, promise
or agreement hereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
SECTION 6.8 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall neither control nor affect the meaning or construction of any of
the provisions hereof.
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SECTION 6.9 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, and such counterparts shall together constitute one and the same
instrument.
SECTION 6.10 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent in [ ], [ ] for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to submit his
Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by one of its duly authorized officers, and its corporate seal to be
affixed hereunto, and the same to be attested by its secretary or one of its
assistant secretaries; and the Warrant Agent has caused this Agreement to be
signed by one of its duly authorized officers, and its corporate seal to be
affixed hereunto, and the same to be attested by one of its secretaries or
assistant secretaries all as of the day and year first above written.
X.X. XXXXX COMPANY
By
-------------------------------
Name:
Title:
Attest:
-----------------------------------
[ ]
By
-------------------------------
Name:
Title:
Attest:
-----------------------------------
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED
BY THE WARRANT AGENT AS PROVIDED HEREIN
WARRANT CERTIFICATE REPRESENTING
[ ] WARRANTS TO PURCHASE
[ ]
DUE [ ],
AS DESCRIBED HEREIN.
X.X. XXXXX COMPANY
PURCHASE WARRANT
FOR [ ]
DUE [ ]
VOID AFTER THE CLOSE OF BUSINESS
ON ________ __, ____
This certifies that or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time on or before the close of business on ________
__, ____, $[ ] principal amount of [ ] due ________ __, ____ (the "[ ]"), of
X.X. Xxxxx Company (the "Company"), issued and to be issued under the Indenture
(as hereinafter defined), at a purchase price (the "Warrant Price") determined
on the following basis: [If applicable, insert in the following paragraph
relevant amounts in applicable foreign currency, currency unit or composite
currency.]
[If applicable, insert -- The Warrant Price is equal to the
principal amount of [ ] purchased, plus accrued interest from the next preceding
interest payment record date in respect of such [ ].]
[If applicable, insert -- On ________ __, ____ the Warrant
Price is $[ ]. During the period from ________ __, ____, through and including
________ __, ____ the Warrant Price will be $[ ] [, plus [accrued amortization
of the original issue discount] [accrued interest] from ________ __, ____]. On
________ __, ____ through and including ________ __, ____ the Warrant Price will
be $[ ] [, plus [accrued amortization of the original issue discount] [accrued
interest] from ________ __, ____]. [If applicable, insert -- In each case, the
original issue discount will be amortized at a [ ]% annual rate, computed on a
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semiannual basis, using a 360-day year consisting of twelve 30-day months.] [If
applicable, insert -- The original issue discount for each $[ ] principal amount
of [ ] is $[ ].]
The owner may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, [in lawful money of the United States of America] [if applicable, insert
relevant amounts in applicable foreign currency, currency unit or composite
currency], [in cash or by certified check, official bank check or bank wire
transfer, in each case] [by bank wire transfer,] in immediately available funds,
the Warrant Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[ ], or its successors as Warrant Agent (the "Warrant Agent"), currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
This Warrant Certificate may be exercised to purchase [ ] in
registered form upon exercise of this Warrant Certificate. If exercised in part,
this Warrant Certificate may be exercised only to purchase [ ] in registered
form in denominations of [ ] and any integral multiples thereof. Upon any
partial exercise of this Warrant Certificate, there shall be issued to the
holder hereof a new Warrant Certificate in respect of the number of Warrants as
to which this Warrant Certificate was not exercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of ________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
The [ ] to be issued and delivered upon the exercise of this
Warrant Certificate will be issued under and in accordance with an Indenture,
dated as of ________ __, ____ (the "Indenture"), between the Company and [ ] as
trustee ([ ] and any successor or successors as such trustee being hereinafter
referred to as the "Trustee"), and will be subject to the terms and provisions
contained in the [ ] and in the Indenture. Copies of the Indenture are on file
at the corporate trust office of the Trustee [in [city, state]].
The Warrant Certificate may be surrendered for registration of
transfer at the corporate trust office of the Warrant Agent by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
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After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent in [ ], [ ] for
Warrant Certificates representing the same aggregate number of Warrants, in the
manner and subject to the limitations provided in the Warrant Agreement.
This Warrant Certificate shall not entitle the holder hereof to
any of the rights of a holder of the [ ], including, without limitation, the
right to receive payments of principal of and interest, if any, on the [ ] or to
enforce any of the covenants of the [ ] or the Indenture, except as otherwise
provided in the Indenture.
This Warrant Certificate shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ________ __, ____.
IN WITNESS HEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
X.X. XXXXX COMPANY
By:
------------------------------------
Name:
Title:
Attest:
------------------------------------
Countersigned:
[ ]
as Warrant Agent
By
----------------------------------
Authorized Signature
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(Instructions for Exercise of Warrants)
To exercise the Warrants represented hereby, the Warrant holder
should pay [in cash or by certified check, official bank check or bank wire
transfer, in each case] [by bank wire transfer,] in immediately available funds,
the Warrant Price in full for Warrants exercised, to [insert name of Warrant
Agent] Corporate Trust Department, [insert address of Warrant Agent], Attn: [ ],
which [payment] [wire transfer] should specify the name of the Warrant holder
and the number of Warrants exercised by such Warrant holder. In addition, the
Warrant holder should complete the information required below and mail this
Warrant Certificate by registered mail to the Warrant Agent at the address set
forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent before any [ ] subject hereto will be issued.
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[FORM OF ELECTION TO PURCHASE]
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $[ ] principal amount of
the [ ] due [ ] (the "[ ]") of X.X. Xxxxx Company and represents that he has
tendered payment for such [ ] [in cash or by certified check, official bank
check or bank wire transfer, in each case] [by bank wire transfer,] in
immediately available funds, to the order of X.X. Xxxxx Company, c/o [insert
name and address of Warrant Agent], in the amount of $[ ] in accordance with the
terms hereof. The undersigned requests that said principal amount of [ ] be in
fully registered form, in the authorized denominations, registered in such names
and delivered, all as specified in accordance with the instructions set forth
below.
If said principal amount of [ ] is less than all of the [ ]
purchasable hereunder, the undersigned requests that a new Warrant Certificate
repre senting the remaining balance of the Warrants evidenced hereby be issued
and delivered to the undersigned at the address set forth below unless otherwise
specified in the instructions below.
Dated:
Name:
---------------------------------- ----------------------------
(Insert Social Security or (Please Print)
Other Identifying Number of Holder)
Address:
-------------------------
-------------------------
Signature:
-----------------------
This Warrant may be exercised by hand or by mail at the following address:
By Hand at: [ ]
By Mail at: [Instructions as to form and delivery of [ ]
and/or Warrant Certificates -- complete as appropriate.]
Special instructions as to form and delivery of [ ] and, if
applicable, Warrant Certificates evidencing unexercised Warrants:
[ ]: Please issue [ ] in denominations of [ ] registered in the
name of [ ] ([social security] [other identifying] number [ ]), [complete
address], and deliver the same to [name and complete address].
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Warrants: Please issue a new Warrant Certificate registered in
the name of [ ] ([social security] [other identifying] number [ ]), [complete
address], and deliver the same to [name and complete address].
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Assignment
(Form of Assignment To Be Executed If Holder
Desires to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED
----------------------------------------
hereby sells, assigns and transfers unto
---------------------------------------------------------------------
(Please print name and address including zip code and specify social security or
other identifying number)
---------------------------------------------------------------------
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Company with full power of
substitution in the premises.
Dated:
--------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member firm of a national
securities exchange.)
Signature Guaranteed
------------------------------------
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