Exhibit 4.9
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HOVNANIAN ENTERPRISES, INC.
and
[WARRANT AGENT]
As Warrant Agent
________________
Warrant Agreement -- [Common Stock]
[Preferred Stock]
Dated as of _______________________
_________________
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[FN]
Options represented by bracketed or blank sections herein shall be
determined in conformity with the applicable prospectus supplement or
supplements
TABLE OF CONTENTS
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . 4
SECTION 1.1. Issuance of Warrants . . . . . . . . . . . . . . . 4
SECTION 1.2. Execution and Delivery of Warrant Certificates . . 4
SECTION 1.3. Issuance of Warrant Certificates . . . . . . . . . 5
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . 6
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . 6
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . 6
SECTION 2.2. Duration and Exercise of Warrants . . . . . . . . 6
SECTION 2.3. No Fractional Shares to Be Issued . . . . . . . . 7
SECTION 2.4. Covenant to Reserve Shares for Issuance on
Exercise . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.5. Share Record Date . . . . . . . . . . . . . . . . 9
SECTION 2.6. Rights Upon Dissolution or Liquidation . . . . . . 9
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE . . . . 10
SECTION 3.1. Adjustment of Warrant Price . . . . . . . . . . . 10
[SECTION 3.2. Adjustment of shares of [Common] [Preferred]
Stock Purchasable Upon Exercise of Warrants . . . . . . 15
SECTION 3.3. Statements on Warrants . . . . . . . . . . . . . . 15
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . 15
SECTION 4.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates . . . . . . . . . . 15
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.3. Holder of Warrant Certificate May Enforce
Rights . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance . . . . . . . . . . . . . . 16
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES . . . . . . . . . . . 17
SECTION 5.1. Exchange and Transfer of Warrant Certificates . . 17
SECTION 5.2. Treatment of Holders of Warrant Certificates . . . 18
SECTION 5.3. Cancellation of Warrant Certificates . . . . . . . 18
ARTICLE VI.
CONCERNING THE WARRANT AGENT . . . . . . . . . 18
SECTION 6.1. Warrant Agent . . . . . . . . . . . . . . . . . . 18
SECTION 6.2. Conditions of Warrant Agent's Obligations . . . . 19
(a) Compensation and Indemnification . . . . . . . 19
(b) Agent for the Company . . . . . . . . . . . . . 19
(c) Counsel . . . . . . . . . . . . . . . . . . . . 19
(d) Documents . . . . . . . . . . . . . . . . . . . 19
(e) Certain Transactions . . . . . . . . . . . . . 19
(f) No Liability for Interest . . . . . . . . . . . 19
(g) No Liability for Invalidity . . . . . . . . . . 20
(h) No Responsibility for Representations . . . . . 20
(i) No Implied Obligations . . . . . . . . . . . . 20
SECTION 6.3. Resignation and Appointment of Successor . . . . . 20
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES] . . . . . 21
[SECTION 7.1. Redemption . . . . . . . . . . . . . . . . . . . 21
SECTION 7.2. Accelerated Share Conversion Date . . . . . . . . 22
SECTION 7.3. Conversion of Warrants into Shares . . . . . . . . 22
SECTION 7.4. Notice of Proposed Actions . . . . . . . . . . . . 23
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . 24
SECTION 8.1. Amendment . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.2. Notices and Demands to the Company and Warrant
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.3. Addresses . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.4. Applicable Law . . . . . . . . . . . . . . . . . . 25
SECTION 8.5. Delivery of Prospectus . . . . . . . . . . . . . . 25
SECTION 8.6. Obtaining of Governmental Approvals . . . . . . . 25
SECTION 8.7. Persons Having Rights under Warrant Agreement . . 25
SECTION 8.8. Headings . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.9. Counterparts . . . . . . . . . . . . . . . . . . . 25
SECTION 8.10. Inspection of Agreement . . . . . . . . . . . . . 25
HOVNANIAN ENTERPRISES, INC.
Form of [Common Stock][Preferred Stock]
Warrant Agreement
THIS WARRANT AGREEMENT dated as of
between Hovnanian Enterprises, Inc., a Delaware corporation (the "Company,")
and [Warrant Agent], as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually
a "Warrant") representing the right to purchase [ ] shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), [ ] shares of
the Company's preferred stock, par value $.01 per share (the "Preferred
Stock," collectively with the Common Stock, the "Warrant Securities"), such
warrant certificates 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:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after (the "Detachable
Date")][and shall not be separately transferable] and 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 Warrant Securities. [If Offered
Securities and Warrants -- Warrant Certificates shall be initially issued in
units with the Offered Securities and each Warrant Certificate included in
such a unit shall evidence Warrants for each shares of
Offered Securities 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 Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be executed on behalf of the Company by [its
Chairman of the Board, the President, any Senior Vice President, or any Vice
President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced in 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 Certificates shall be valid for any purpose, and
no Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the Warrant
Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued 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 may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates 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 [If Offered Securities and Warrants are not
immediately detachable -- or upon the register of the Offered Securities
prior to the Detachable Date. Prior to the Detachable Date, the Company
will, or will cause the registrar of the Offered Securities to, make
available at all times to the Warrant Agent such information as to holders of
the Offered Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate total number not
exceeding Warrant Securities (except as provided in Sections
1.4, 3.1 and 4.2) may be executed by the Company and delivered to the Warrant
Agent upon the execution of this Warrant 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
Warrant Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such 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 or in connection with
their transfer, as hereinafter provided or as provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company
will cause definitive Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Warrant
Certificates, the temporary Warrant Certificates shall be exchangeable for
definitive Warrant Certificates upon surrender of the temporary Warrant
Certificates at the corporate trust office of the Warrant Agent [or
], without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Warrant Certificates the Company shall execute and the
Warrant Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants.
Until so exchanged, the temporary Warrant Certificates shall in all respects
be entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period from
, through and including , the exercise price of each
Warrant will be . During the period from ,
through and including , the exercise price of each Warrant
will be . Such purchase price of Warrant Securities is
referred to in this Warrant Agreement as the "Warrant Price." No adjustment
shall be made for any dividends on any Warrant Securities issuable upon
exercise of any Warrants.
(b) Warrants may be exercised by the holders thereof at
any time, at the Warrant Price then in effect, when the Warrant Securities
are registered pursuant to an effective registration statement under the
Securities Act. Warrants shall in no event be exercisable for the purchase
of Warrant Securities at any time when such Warrant Securities are not
registered pursuant to an effective registration statement under the
Securities Act.
The Company shall be required to register the Warrant
Securities, or holders will have such other rights, only as provided in
Section 2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities
and of any subsequent lapses in the effectiveness of such registration
statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The
registered holder of any Warrant Certificate may exercise the Warrants
evidenced thereby in whole or in part at any time after ,
upon surrender of the Warrant Certificate with the form of election to
purchase on the reverse side thereof duly executed, to the Warrant Agent at
the principal office of the Warrant Agent [in the Borough of Manhattan, City
and State of New York,] together with payment of the Warrant Price for each
share of [Common] [Preferred] Stock as to which the Warrants are exercised,
at or prior to 5:00 P.M. ([New York time]) on [the earliest of (i) ,
(the "Scheduled Share Conversion Date"), (ii) the Accelerated Share
Conversion Date as defined in Section 7.1 hereof, or (iii) the business day
immediately preceding the Redemption Date as defined in Section 7.1 hereof]
[ [or such later date as the Company may designate, by notice
to the Warrant Agent and the holders of the Warrant Certificates mailed to
their addresses as set forth in the record books of the Warrant Agent] (the
"Expiration Date"). Each Warrant not exercised at or before 5:00 P.M. [New
York City time], on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease].
(b) The Warrant Price for each share of [Common]
[Preferred] Stock pursuant to the exercise of a Warrant shall initially be
, shall be subject to adjustment as provided in Article VII hereof, and shall
be payable in lawful money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form
of election to purchase on the reverse side thereof, duly executed,
accompanied by payment of the Warrant Price for the shares to be purchased
and an amount equal to any applicable transfer tax in cash, or by check, bank
draft or postal or express money order payable to the order of the Company,
the Warrant Agent shall thereupon promptly (i) requisition from any transfer
agent of the [Common] [Preferred] Stock of the Company certificates for the
number of whole shares of [Common] [Preferred] Stock to be purchased and,
when appropriate, for the number of fractional shares to be sold by the
Warrant Agent, and the Company hereby irrevocably authorizes its transfer
agent to comply with all such requests, (ii) when appropriate, requisition
from the Company the amount of cash to be paid in lieu of issuance of
fractional shares or Warrants, and (iii) promptly after receipt of such
certificates cause the same to be delivered to or upon the order of the
registered holder of such Warrant Certificate, registered in such name or
names as may be designated by such holder, and , when appropriate, after
receipt promptly deliver such cash to or upon the order of the registered
holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant
Certificate shall exercise less than all the Warrants evidenced thereby, a
new Warrant Certificate evidencing Warrants equivalent to the Warrants
remaining unexercised shall be issued by the Warrant Agent to the registered
holder of such Warrant Certificate or to his duly authorized assigns, subject
to the provisions of Section 2.4 hereof.
(e) The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the
Company all monies received for the purchase of shares of [Common]
[Preferred] Stock through the exercise of Warrants.
SECTION 2.3. No Fractional Shares to Be Issued. (a)
Notwithstanding anything to the contrary contained in this Agreement, if the
number of shares of [Common] [Preferred] Stock purchasable on the exercise of
each Warrant is not a whole number, the Company shall not be required to
issue any fraction of a share of [Common] [Preferred] Stock or to distribute
stock certificates that evidence fractional shares of [Common] [Preferred]
Stock or to issue a Warrant Certificate representing a fractional Warrant
upon exercise of any Warrants. If Warrant Certificates evidencing more than
one Warrant shall be surrendered for exercise at one time by the same holder,
the number of full shares which shall be issuable upon exercise thereof shall
be computed on the basis of the aggregate number of Warrants so surrendered.
[If any fraction of a share of [Common] [Preferred] Stock would, except for
the provisions of this Section 2.3, be issuable on the exercise of any
Warrant or Warrants, the Company shall purchase such fraction for an amount
in cash equal to such fraction of the then current market price of a share of
[Common] [Preferred] Stock. The Warrant holders, by their acceptance of the
Warrant Certificates, expressly waive their right to receive any fraction of
a share of [Common] [Preferred] Stock or a stock certificate representing a
fraction of a share of [Common] [Preferred] Stock.
(b) If the number of shares purchasable upon the
exercise of each Warrant is adjusted pursuant to Section 3.1(l), the Company
shall nonetheless not be required to issue fractions of shares upon exercise
of the Warrants or to distribute share certificates which evidence fractional
shares, nor shall the Company be required to make any cash adjustment in
respect of a fractional interest in a share, but the fractional interest to
which any person is entitled shall be sold in the manner set forth in
subsection (c) of this Section 2.3 by the Warrant Agent, acting as agent for
the person entitled to such fractional interest, except as otherwise provided
in such subsection.
(c) The Warrant Agent shall remit to such person the
proceeds of the sale of any such fractional interest sold by it as such
agent. Fractional interests shall be non-transferable except by or to the
Warrant Agent acting as herein authorized. The Warrant Agent may sell
fractional interests on the basis of market prices of the Warrants or shares
of [Common] [Preferred] Stock as determined by the Warrant Agent in its sole
discretion. In lieu of making an actual sale of a fractional interest, the
Company may authorize the Warrant Agent to value fractional interests without
actual sale on the basis of the current market price of the Warrants or
shares of [Common] [Preferred] Stock as determined by the Warrant Agent in
its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on
Exercise. The Company covenants that it will at all times reserve and keep
available out of its authorized but unissued Warrant Securities or its
authorized and issued Warrant securities held in its Treasury, solely for the
purpose of issue upon exercise of Warrants, the full number of Warrant
Securities, if any, then issuable if all outstanding Warrants then
exercisable were to be exercised. The Company covenants that, subject to
payment of the Warrant Price, all shares of [Common] [Preferred] Stock which
shall be so issuable shall be duly and validly issued and fully paid and
nonassessable.
[The Company hereby authorizes and directs its current and
future transfer agents for the shares of [Common] [Preferred] Stock and for
any shares of the Company's capital stock issuable upon the exercise of any
of the Warrants at all times to reserve such number of authorized shares as
shall be requisite for such purpose. The Company will supply such transfer
agents with duly executed stock certificates for such purposes and will
provide or otherwise make available any cash which may be payable as provided
in this Article II.]
The Company covenants that if any shares of [Common]
[Preferred] Stock required to be reserved for purposes of exercise of
Warrants require, under any federal or state law or rule or regulation of any
national securities exchange, registration with or approval of any
governmental authority, or listing on any national securities exchange before
such shares may be issued upon exercise, the Company will in good faith and
as expeditiously as possible endeavor to cause such shares to be duly
registered, approved or listed on the relevant national securities exchange,
as the case may be; provided, however, that in no event shall such shares of
[Common] [Preferred] Stock be issued, and the Company is hereby authorized to
suspend the exercise of all Warrants, for the period during which such
registration, approval or listing is required but not in effect.
The Company further covenants and agrees that it will pay
when due and payable any and all Federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Warrant
Certificates or of any shares of [Common] [Preferred] Stock upon the exercise
or conversion of Warrants. The Company shall not, however, be required to
pay any transfer tax which may be payable in respect of any transfer involved
in the transfer or delivery of Warrant Certificates or the issuance or
conversion or delivery of Certificates for shares of [Common] [Preferred]
Stock in a name other than that of the registered holder of the Warrant
Certificate evidencing Warrants surrendered for exercise or to issue or
deliver any certificates for shares of [Common] [Preferred] Stock upon the
exercise or conversion of any Warrants until any such tax shall have been
paid (any such tax being payable by the holder of such Warrant Certificate at
the time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name
any certificate for shares of [Common] [Preferred] Stock is issued upon the
exercise of Warrants shall for all purposes be deemed to have become the
holder of record of the shares of [Common] [Preferred] Stock represented
thereby on, and such certificate shall be dated, the date upon which the
Warrant Certificate evidencing such Warrants was duly surrendered and payment
of the Warrant Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which
the [Common] [Preferred] Stock transfer books of the Company are closed, such
person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding business day on
which the [Common] [Preferred] Stock transfer books of the Company are open.
Prior to the exercise of the Warrants evidenced thereby, the holder of a
[Common] [Preferred] Stock Warrant Certificate shall not be entitled to any
rights of a shareholder of the Company with respect to shares for which the
Warrants shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement relating to the rights
of holders of Warrant Certificates, in the event that, at any time after the
date hereof, there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company, then the Company shall give notice
by first-class mail to each holder of an outstanding Warrant at such holder's
address as it appears on the Warrant Register at the earliest practicable
time (and, in any event, not less than twenty days before any date set for
definitive action), of the date on which such dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also
specify the date as of which the holders of record of [Common] [Preferred]
Stock or other securities, if any, underlying the Warrants shall be entitled
to exchange their shares for securities, money or other property deliverable
upon such dissolution, liquidation or winding up, as the case may be, on
which date each holder of outstanding Warrants shall receive cash or other
property (taking into account the Warrant Price then if effect) which it
would have been entitled to receive had the Warrants been exercisable and
exercised immediately prior to such dissolution, liquidation or winding up
and the rights to exercise the Warrants shall terminate.
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant
Price specified in Section 2.1 shall be subject to adjustment from time to
time as follows:
(a) In case the Company shall (i) pay a dividend or make
a distribution on the Warrant Securities in shares of its [Common]
[Preferred] Stock, (ii) subdivide the outstanding Warrant Securities into a
greater number of shares, (iii) combine the outstanding Warrant Securities
into a smaller number of shares or (iv) issue any shares of its capital stock
in a reclassification of the shares of [Common] [Preferred] Stock (including
any such reclassification in connection with a consolidation, merger or share
exchange in which the Company is the continuing corporation), the Warrant
Price in effect at such time shall be adjusted so that the holder of any
Warrant thereafter surrendered for exercise shall be entitled to receive the
number of shares of [Common] [Preferred] Stock which he would have owned or
have been entitled to receive after the happening of any of the events
described above had such Warrant been exercised immediately prior to the
record date in the case of a dividend or the effective date in the case of a
subdivision or combination. An adjustment made pursuant to this subparagraph
(a) shall become effective immediately after the record date in the case of a
dividend, except as provided in subparagraph (h) below, and shall become
effective immediately after the effective date in the case of a subdivision
or combination.
(b) In case the Company shall issue rights or warrants
to all holders of [Common] [Preferred] Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe
for or purchase shares of [Common] [Preferred] Stock at a price per share
less than the current market price per share of [Common] [Preferred] Stock
(as defined for purposes of this subparagraph (b) in subparagraph (e) below),
at the record date for the determination of stockholders entitled to receive
such rights or warrants, the Warrant Price in effect after such record date
shall be determined by multiplying such Warrant Price by a fraction, the
numerator of which shall be the number of shares of [Common] [Preferred]
Stock outstanding at the close of business on the record date for issuance of
such rights or warrants plus the number of shares of [Common] [Preferred]
Stock which the aggregate offering price of the total number of shares of
[Common] [Preferred] Stock so offered would purchase at such current market
price, and the denominator of which shall be the number of shares of [Common]
[Preferred] Stock outstanding at the close of business on the record date for
issuance of such rights or warrants plus the number of additional shares of
[Common] [Preferred] Stock receivable upon exercise of such rights or
warrants. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately, except
as provided in subparagraph (h) below, after such record date. In case such
subscription price may be paid in a consideration part or all of which shall
be in a form other than cash, the value of such consideration shall be as
determined by the Board of Directors of the Company, whose determination
shall be conclusive, and described in a statement filed with the Warrant
Agent. Shares of [Common] [Preferred] Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not
so issued, the Warrant Price shall again be adjusted to be the Warrant Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall distribute to all holders
of shares of [Common] [Preferred] Stock (including any such distribution made
in connection with a consolidation, merger or share exchange in which the
Company is the continuing corporation) any shares of capital stock of the
Company (other than shares of [Common] [Preferred] Stock) or evidences of its
indebtedness or assets (excluding cash dividends or distributions paid from
retained earnings of the Company or from any surplus legally available for
dividends under the laws of the state of incorporation of the Company and
dividends payable in shares of [Common] [Preferred] Stock) or rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights or warrants referred to in subparagraph (b) above) (any of the
foregoing being hereinafter in this subparagraph (c) called the
"Securities"), then, in each such case, unless the Company elects to reserve
such Securities (or, at the option of the Company, pay cash as provided
below) for distribution to the holders of the Warrants upon the exercise of
the Warrants so that any such holder exercising Warrants will receive such
exercise, in addition to the Shares of [Common][Preferred] Stock to which
such holder is entitled, the amount and kind of such Securities which such
holder would have received if such holder had, immediately prior to the
record date for the distribution of the Securities, exercised its Warrants
into Warrant Securities (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Company's
Board of Directors in its sole discretion), the Warrant Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Warrant Price in effect immediately prior to the date of such distribution by
a fraction the numerator of which shall be the current market price per share
(as defined for purposes of this subparagraph (c) in subparagraph (e) below)
of the shares of [Common] [Preferred] Stock on the record date mentioned
above less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of the
portion of the Securities so distributed allocable to one share of [Common]
[Preferred] Stock, and the denominator of which shall be the current market
price per share (determined as provided in subparagraph (e) below) of the
share of [Common] [Preferred] Stock. Such adjustment shall become effective
immediately prior to the opening of business on the day following the record
date for the determination of shareholders entitled to receive such
distribution. In the event that such distribution is not so made, the
Warrant Price shall again be adjusted to be the Warrant Price which would
then be in effect if such date fixed for the determination of shareholders
entitled to receive such distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the
number of shares of Warrant Securities into which a Warrant is convertible
shall have been adjusted because the Company has declared a dividend, or made
a distribution, on the outstanding shares of Warrant Securities in the form
of any right or warrant to purchase securities of the Company, or the Company
has issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith
be adjusted to equal the Warrant Price that would have applied had such right
or warrant never been declared, distributed or issued.
(e) For the purposes of any computation under
subparagraph (b) above, the current market price per share of [Common]
[Preferred] Stock or of any other security (herein collectively referred to
as a "security") at the date herein specified shall be deemed to be the
average of the reported last sales prices for the [thirty consecutive Trading
Days (as defined below) commencing forty-five Trading Days (as defined below)
before the date in question] [ten consecutive Trading Days (as defined
below) selected by the Company commencing not less than twenty nor more than
thirty days before the date in question]. For the purpose of any computation
under subparagraph (c) above, the current market price per security on any
date shall be deemed to be the average of the reported last sales prices for
the ten consecutive Trading Days before the date in question. The reported
last sales price for each day (whether for purposes of subparagraph (b) or
subparagraph (c)) shall be the reported last sales price, regular way, or, in
case no sale takes place on such day, the average of the reported closing bid
and asked prices, regular way, in either case as reported on the New York
Stock Exchange Composite Tape or, if such security is not listed or admitted
to trading on the New York Stock Exchange at such time, on the principal
national securities exchange on which such security is listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such
day shall not have been reported through NASDAQ, the average of the bid and
asked prices for such date as furnished by any New York Stock Exchange member
firm regularly making a market in such security selected for such purpose by
the Board of Directors of the Company or a committee thereof or, if no such
quotations are available, the fair market value of such security as
determined by a New York Stock Exchange member firm regularly making a market
in the shares of [Common] [Preferred] Stock selected for such purpose by the
Board of Directors of the Company or a committee thereof. As used herein,
the term "Trading Day" with respect to a security means (x) if such security
is listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which the New York Stock Exchange or
such other national securities exchange is open for business or (y) if such
security is quoted on the National Market System of the NASDAQ, a day on
which trades may be made on such National Market System or (z) otherwise, any
day other than a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or executive order
to close.
(f) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least [1%]
in such Warrant Price; provided, however, that any adjustments which by
reason of this paragraph (f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article III shall be made to the nearest cent or to
the nearest .01 of a share, as the case may be, with one-half cent and .005
of a share, respectively, being rounded upward. Anything in this Article III
to the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Warrant Price, in addition to those required by this
paragraph (f), as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of rights
or warrants to purchase stock or securities, or distribution of other assets
(other than cash dividends) hereafter made by the Company to its stockholders
shall not be taxable.
(g) Whenever the Warrant Price is adjusted as herein
provided, the Company shall file with the transfer agent a certificate,
signed by [the Chairman of the Board, the President, any Senior Vice
President, or any Vice President] of the Company, setting forth the Warrant
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment, which certificate shall be conclusive evidence of
the correctness of such adjustment; provided, however, that the failure of
the Company to file such officers' certificate shall not invalidate any
corporate action by the Company.
(h) In any case in which this Article III provides that
an adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y) issuing
to the holder of any Warrant converted after such record date and before the
occurrence of such event the additional shares of Warrant Securities or other
assets issuable upon such exercise by reason of the adjustment required by
such event over and above the Warrant Securities or other assets issuable
upon such exercise before giving effect to such adjustment and (z) paying to
such holder any amount of cash in lieu of any fractional share; provided,
however, that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided
in Article III, the Company shall cause to be mailed to each holder of
Warrants at its then registered address by first-class mail, postage prepaid,
a notice of such adjustment of the Warrant Price setting forth such adjusted
Exercise Price and the effective date of such adjusted Exercise Price;
provided, however, that the failure of the Company to give such notice shall
not invalidate any corporate action by the Company.
(j) In the event that at any time, as a result of an
adjustment made pursuant to Section 3.1, the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of [Common] [Preferred] Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall
be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the shares
contained in Section 3.1(a) through (c), inclusive, and the provisions of
Sections 2.3, 2.4 and 2.5 with respect to the shares of [Common] [Preferred]
Stock shall apply on like terms to any such other shares.
(k) All Warrants originally issued by the Company
subsequent to any adjustment made to the Warrant Price hereunder shall
evidence the right to purchase, at the adjusted Warrant Price, the number of
shares of [Common] [Preferred] Stock purchasable from time to time hereunder
upon exercise of the Warrants, all subject to further adjustment as provided
herein.
(l) Unless the Company shall have exercised its election
as provided in Section 3.1(m), upon each adjustment of the Warrant Price as a
result of the calculations made in Section 3.1(a),(b) or (c), each Warrant
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Warrant Price,
that number of shares (calculated to the nearest hundredth) obtained by (i)
multiplying the number of shares covered by a Warrant immediately prior to
this adjustment of the number of shares by the Warrant Price in effect
immediately prior to such adjustment of the Warrant Price and (ii) dividing
the product so obtained by the Warrant Price in effect immediately after such
adjustment of the Warrant Price.
(m) The Company may elect on or after the date of any
adjustment of the Warrant Price to adjust the number of Warrants, in
substitution for any adjustment in the number of shares of [Common]
[Preferred] Stock purchasable upon the exercise of a Warrant as provided in
Section 3.2. Each of the Warrants outstanding after such adjustment of the
number of Warrants shall be exercisable for one share of [Common] [Preferred]
Stock. Each Warrant held of record prior to such adjustment of the number of
Warrants shall become that number of Warrants (calculated to the nearest
hundredth) obtained by dividing the Warrant Price in effect prior to
adjustment of the Warrant Price by the Warrant Price in effect after
adjustment of the Warrant Price. The Company shall make a public
announcement of its election to adjust the number of Warrants, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Warrant
Price is adjusted or any day thereafter, but shall be at least 10 days later
than the date of the public announcement. Upon each adjustment of the number
of Warrants pursuant to this subsection (l) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrant
Certificates on such record date Warrant Certificates evidencing, subject to
Section 2.4, the additional Warrants to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause
to be distributed to such holders of record in substitution and replacement
for the Warrant Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Warrant Certificates evidencing all the Warrants to which such holders shall
be entitled after such adjustment. Warrant Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Warrant Price) and
shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(n) Irrespective of any adjustment or change in the
Warrant Price or the number of shares of [Common] [Preferred] Stock issuable
upon the exercise of the Warrants, the Warrant Certificates theretofore and
thereafter issued may continue to express the Warrant Price per share and the
number of shares which were expressed upon the initial Warrant Certificates
issued hereunder.
(o) Anything in this Article III to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Warrant Price, in addition to those adjustments required by this Article III,
as it in its sole discretion shall determine to be advisable in order that
any consolidation or subdivision of the shares of [Common] [Preferred] Stock,
issuance wholly for cash of any shares of [Common] [Preferred] Stock at less
than the current market price, issuance wholly for cash of shares of [Common]
[Preferred] Stock or securities which by their terms are convertible into or
exchangeable for Common Stock, stock dividend, issuance of rights, options or
warrants referred to hereinabove in this Article III, or other event referred
to hereinabove in this Article III treated for Federal income tax purposes as
a dividend of stock or stock rights, hereinafter made by the Company to its
common shareholders, shall not be taxable to the recipients.
[SECTION 3.2. Adjustment of shares of [Common] [Preferred]
Stock Purchasable Upon Exercise of Warrants. The number of Warrant
Securities that may be purchased upon exercise of a Warrant shall be
determined by multiplying the number of shares of [Common] [Preferred] Stock
which would otherwise (but for the provisions of this Section 3.2) be
issuable upon such exercise by a fraction of which (a) the numerator is
and (b) the denominator is $ minus deductions made from (and/or
plus additions to) the Warrant Price pursuant to Sections 3.1(a) or (c)
hereof. The Warrant Price per share of [Common] [Preferred] Stock shall be
adjusted and readjusted from time to time as provided in this Article III
and, as so adjusted or readjusted, shall remain in effect until a further
adjustment or readjustment thereof is required by this Article III.]
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to
this Article III, and Warrant Certificates issued after such adjustment may
state the same Warrant Price and the same number of shares of [Common]
[Preferred] Stock as are stated in the Warrant Certificates initially issued
pursuant to this Agreement. The Company, however, may at any time in its
sole discretion (which shall be conclusive) make any change in the form of
Warrant Certificate that it may deem appropriate and that does not affect the
substance thereof, and any Warrant Certificate thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
Certificate or otherwise, may be in the form as so changed.
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
vote at, or to receive notice of, any meeting of shareholders of the Company;
the consent of action or proceeding of the Company; no such holder, by reason
of the ownership or possession of a Warrant or the Warrant Certificate
representing the same, either at, before or after exercising such Warrant,
shall have any right to receive any cash dividends, stock dividends,
allotments or rights, or other distributions (except as specifically provided
herein), paid, allotted or distributed or distributable to the stockholders
of the Company prior to the date of the exercise of such Warrant; and no such
holder shall have any right not expressly conferred by the Warrant or Warrant
Certificate that such holder holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company, 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 evidencing 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 Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent 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 and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent, the
Trustee, the holder of any Warrant Securities or the holder of any other
Warrant Certificate, may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, his right to
exercise the Warrants evidenced by his Warrant Certificate in the manner
provided in his Warrant Certificate and in this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance. In case any of the following shall occur while
any Warrants are outstanding: [(a) any reclassification or change of the
outstanding shares of Warrant Securities (other than a change in par value,
or from par value to no par value, or as a result of a subdivision or
combination of the Warrant Securities);] or (b) any consolidation, merger,
share exchange or combination of the Company with or into another corporation
(other than a merger or consolidation of the Company in which the Company is
the continuing corporation and which does not result in any reclassification
or change of outstanding shares of [Common] [Preferred] Stock) as a result of
which holders of Warrant Securities shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Warrant Securities; or (c) any sale or conveyance of the
property or assets of the Company as, or substantially as, an entirety to any
other entity as a result of which holders of Warrant Securities shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Warrant Securities; then the
Company, or such successor or purchasing corporation, as the case may be,
shall make appropriate provision by amendment of this Agreement or otherwise
so that the holders of the Warrants then outstanding shall have the right at
any time thereafter, upon exercise of such Warrants, to receive the kind and
amount of shares of stock and other securities and property or assets
receivable upon such reclassification, change, consolidation, merger, share
exchange, combination, sale or conveyance [(or at the option of the Company,
a sum equal to the value thereof at the time of the distribution as
determined by the Board of Directors in its sole discretion)] as would be
received by a holder of the number of shares of Warrant Securities issuable
upon exercise of such Warrant immediately prior to such reclassification,
change, consolidation, share exchange, merger, sale or conveyance, and, in
the case of a consolidation, merger, share exchange, sale or conveyance the
Company shall thereupon be relieved of any further obligation hereunder or
under the 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 may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which theretofore shall not have been signed
by the Company, and may execute and deliver Warrant Securities in its own
name, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects
have the same legal rank and benefit under this Agreement as the Warrants
theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such reclassification, change,
consolidation, merger, sale or conveyance, such changes in phraseology and
form (but not in substance) may be made in the Warrants thereafter to be
issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
merger, share exchange, consolidation, sale or conveyance complies with the
provisions of this Section 4.4.
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable --
Upon] [If Offered Securities with Warrants which are not immediately
detachable -- Prior to the Detachable Date a Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which the
Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered
Security on the register of the Offered Securities shall operate also to
transfer the related Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent [or ],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; 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 [and at ], books 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 [or ] 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 or registration of transfer 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 or registration of transfer. 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 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 which 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 5.2. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior
to the Detachable Date, the Company, the Warrant Agent and all other persons
may treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date, and] [P]rior to due presentment of a Warrant Certificate for
registration of transfer, the Company, the Warrant Agent and all other
persons may treat the holder of a Warrant Certificate as the 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 5.3. Cancellation of Warrant Certificates. Any
Warrant Certificates 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 exchange or in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time or otherwise dispose of canceled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints
[Warrant Agent] 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 [Warrant Agent] hereby accepts such appointment. The
Warrant Agent shall have the powers 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 hereafter grant
to or 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.
SECTION 6.2. 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) 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 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, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim
of such liability.
(b) 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 obligations
or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written 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 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 upon any Warrant Certificate, 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) Certain Transactions. The Warrant Agent and its officers,
directors and employees may become the owner of, or acquire any interest in,
Warrants, 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 Warrant Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in the Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no 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.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's counter-
signature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only 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 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 any default by
the Company in the performance of its covenants or agreements contained
herein or 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 7.2 hereof, to make any
demand upon the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or 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 otherwise agrees. 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 6.2(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 as bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or under any
other applicable Federal or State bankruptcy, insolvency or similar law, or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have been entered
in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree or order
by a court having jurisdiction in the premises shall have been entered for
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up 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 successor Warrant Agent of
such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any successor 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 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 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, 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 substantially all the assets and business
of the Warrant Agent have been transferred, 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.
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]
[SECTION 7.1. Redemption. The Company may, at its option,
at any time from and after , and at or prior to 5:00 p.m.,
[New York time], on the earlier of the Scheduled Share Conversion Date or the
Accelerated Share Conversion Date (as defined in Section 7.2, redeem all but
not less than all of the then outstanding Warrants at a redemption price of $
per Warrant, subject to adjustment pursuant to the provisions of Section
7.3(b). Such price, as the same may be from time to time adjusted, is
hereinafter referred to as the "Redemption Price." If the Company should
desire to exercise such right to redeem all of the then outstanding Warrants,
it will give notice of such redemption to the holders thereof as follows:
Notice of such redemption to holders of Warrants shall be
mailed to all such holders not less than 30 nor more than 90 days prior to
the date fixed for redemption to their last addresses as they appear upon the
registry books of the Warrant Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will specify the date
fixed for redemption ("Redemption Date") and the Redemption Price. The
notice will state that payment of the Redemption Price will be made at the
office or agency of the Warrant Agent or at the option of the Company at a
specified office of the Company in the City of Dallas, State of Texas, upon
presentation and surrender of such Warrants, and will also state that the
right to exercise the Warrants will terminate at the close of business on the
business day immediately preceding the Redemption Date.
On or before the Redemption Date, the Company shall deposit
with the Warrant Agent funds in form satisfactory to the Warrant Agent
sufficient to redeem the then outstanding Warrants at the Redemption Price.]
[SECTION 7.2. Accelerated Share Conversion Date. If the
price of a share of [Common] [Preferred] Stock (as determined pursuant to the
second sentence of Section 3.1(e)) for each of 10 consecutive trading days is
at least $ , subject to adjustment pursuant to the provisions of Section
7.3(b) (such price, as the same may from time to time be adjusted, is
hereinafter referred to as the "Acceleration Price"), then the Company may,
at its option, accelerate the date on which the Warrants shall be converted
into shares of [Common] [Preferred] Stock and cease to be exercisable. If
the Company shall so accelerate such date, it shall give notice of such
acceleration within 30 days after the end of any such 10 consecutive trading
day period to the holders of Warrants as follows:
Notice of such acceleration shall be mailed to all holders
of Warrants not less than 30 nor more than 90 days prior to the date
specified in such notice as the date on which the Warrants shall be converted
into shares of [Common] [Preferred] Stock and cease to be exercisable (the
"Accelerated Share Conversion Date") to their last addresses as they appear
upon the registry books of the Warrant Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of acceleration will specify the
Accelerated Share Conversion Date and the Acceleration Price.]
[SECTION 7.3. Conversion of Warrants into Shares. (a) To
the extent that any Warrant Certificates remain outstanding at the expiration
of the period during which the Warrants are exercisable, as set forth in
Section 2.3(a) hereof, the unexercised Warrants represented thereby shall be
converted automatically into shares of [Common] [Preferred] Stock at the rate
of [ ] share[s] of [Common] [Preferred] Stock for each [ ] Warrants. The
registered holders of such Warrant Certificates shall be deemed to have
become holders of record of such share or shares of [Common] [Preferred]
Stock as of the date of such conversion. If the number of shares of [Common]
[Preferred] Stock purchasable upon the exercise of each Warrant is adjusted
pursuant to Section 3.2, the rate at which shares of [Common] [Preferred]
Stock are issued upon such conversion of unexercised Warrants at the
expiration of the period during which the Warrants are exercisable shall be
adjusted in order that the total number of shares of [Common] [Preferred]
Stock issued for each [ ] unexercised Warrants at such expiration equals
the number of such shares purchasable upon the exercise of each Warrant after
such adjustment. Notwithstanding the foregoing provisions of this Section
7.3, no fractional shares of [Common] [Preferred] Stock shall be issuable
upon such conversion. In lieu of fractional shares, there shall be paid to
the registered holders of Warrant Certificates at the time such Warrant
Certificates are so converted an amount in cash equal to the same fraction of
the current market value of a share of [Common] [Preferred] Stock. For the
purposes of this Section 7.3, the current market value of a share of [Common]
[Preferred] Stock shall be the closing price of a share of [Common]
[Preferred] Stock (as determined pursuant to the second sentence of Section
3.1(e)) for the trading day immediately prior to the date of such conversion.
After such conversion of outstanding and unexercised Warrants into shares of
[Common] [Preferred] Stock, the holder of any Warrant Certificate
representing such Warrants shall surrender the same to the Warrant Agent (or,
if this Agreement shall have been terminated, to the transfer agent for
shares of [Common] [Preferred] Stock) and such holder shall be entitled, upon
such surrender, to receive in exchange therefor a certificate or certificates
representing the number of whole shares of [Common] [Preferred] Stock into
which such Warrants shall have been converted as aforesaid and payments as
aforesaid for any fractional share represented thereby (without interest).
Unless and until so surrendered, such Warrant Certificates shall be deemed
for all purposes (subject to the further provisions of this paragraph) to
evidence the ownership of the whole number of shares of [Common] [Preferred]
Stock into which the Warrants evidenced thereby have been so converted.
Unless and until any such Warrant Certificate shall be so surrendered,
dividends or distributions payable to holders of record of shares of [Common]
[Preferred] Stock shall not be paid to the holder of any such Warrant
Certificate not surrendered, but there shall be paid to the record holder of
such Warrant Certificate, with respect to the shares of [Common] [Preferred]
Stock issued upon such conversion therefor, (i) upon such surrender the
amount of the dividends or distributions which shall theretofore have become
payable thereon, but without interest, and (ii) after such surrender, the
amount of any dividend or distribution with a record date prior to surrender
and the payment date of which shall be subsequent to surrender, such amount
to be paid on such payment date.
(b) Upon each adjustment of the Warrant Price of the
Warrants, the Redemption Price and the Acceleration Price in effect
immediately prior to the adjustment shall be adjusted to be a price equal to
the product of the Redemption Price or the Acceleration Price, as the case
may be, in effect immediately prior to the adjustment of the Warrant Price
multiplied by a fraction the numerator of which is the Warrant Price which
was in effect immediately after the adjustment of the Warrant Price and the
denominator of which is the Warrant Price immediately prior to such
adjustment.]
SECTION 7.4. Notice of Proposed Actions. In case the
Company shall propose (a) to pay any dividend payable in stock of any class
to the holders of its Common [or Preferred] Stock or to make any other
distribution to the holders of its Common [or Preferred] Stock (other than a
cash dividend), or (b) to offer to the holders of its Common Stock rights or
warrants to subscribe for or to purchase any additional Common Stock or
shares of stock of any class or any other securities, rights or options, or
(c) to effect any reclassification of its Common [or Preferred] Stock (other
than a reclassification involving only the subdivision or combination of
outstanding Common [or Preferred] Stock), or (d) to effect any consolidation,
merger, share exchange or sale, transfer or other disposition of all or
substantially all of the property, assets or business of the Company, or (e)
to effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Warrant, in
accordance with Section 8.2, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, distribution
or rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, disposition, liquidation, dissolution,
or winding up is to take place and the date of participation therein by the
holders of Common [or Preferred] Stock, if any such date is to be fixed, and
such notice shall be so given in the case of any action covered by clause (a)
or (b) above at least ten days prior to the record date for determining
holders of the Common [or Preferred] Stock for purposes of such action, and
in the case of any such action, at least ten days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of Common [or Preferred] Stock, whichever shall be the earlier. The
failure to give notice required by this Section 7.4 or any defect therein
shall not affect the legality or validity of the action taken by the Company
or the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the
Warrant Certificates may be amended by the Company and the Warrant Agent,
without the consent of the registered holders of the Warrant Certificates or
the Warrant holders, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or therein, for the purpose of appointing a successor Warrant Agent in
accordance with Section 6.3 or in any other manner which the Company may deem
to be necessary or desirable and which will not materially and adversely
affect the interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend
this Agreement and the Warrant Certificates, with the consent of the holders
of not fewer than a majority in number of the then outstanding unexercised
Warrants affected by such modification or amendment, for any purpose;
provided, however, that no such modification or amendment that decreases or
increases the Warrant Price, shortens the period of time during which the
Warrants may be exercised, or otherwise materially and adversely affects the
exercise rights of the holders or reduces the percentage of outstanding
Warrants the consent of the holders of which is required for modification or
amendment of this Agreement or the Warrant Certificates, may be made without
the consent of each Warrant holder affected thereby.
SECTION 8.2. 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, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 8.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent], , Attention: ,
and any communication from the Warrant Agent to the Company with respect to
this Agreement shall be addressed to Hovnanian Enterprises, Inc., 00 Xxxxxxx
00, X.X. Xxx 000, Xxx Xxxx, Xxx Xxxxxx 00000, Attention: J. Xxxxx Xxxxxx (or
such other address as shall be specified in writing by the Warrant Agent or
by the Company).
SECTION 8.4. 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, and construed in accordance with, the laws of the State of New
York.
SECTION 8.5. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to
the Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be 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 (including, without limitation, a
registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933), which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Securities issued upon exercise of the Warrant Certificates, the exercise of
the Warrants, the issuance, sale, transfer and delivery of the Warrants or
upon the expiration of the period during which the Warrants are exercisable.
SECTION 8.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company,
the Warrant Agent and the holders of the Warrant Certificates any legal or
equitable right, remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of
the provisions hereof.
SECTION 8.9. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed
to be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 8.10. 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 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, Hovnanian Enterprises, Inc. and [Warrant
Agent] have caused this Agreement to be signed by their respective duly
authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one
of their respective Assistant Secretaries, all as of the date first above
written.
HOVNANIAN ENTERPRISES, INC.
By _________________________
Title:
Attest:
_________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_________________________
Title:
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _______________ this Warrant
Securities with Warrants which Certificate cannot be transferred or
are not immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are Prior to _______________, Warrants
not immediately exercisable. evidence by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
HOVNANIAN ENTERPRISES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., [NEW YORK CITY] TIME, ON _______________ OR EARLIER IF
NOTICE OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [
or registered assigns is the registered] owner of the above
indicated number of Warrants, each Warrant entitling such owner [if Offered
Securities with Warrants which are not immediately detachable -- , subject to
the registered owner qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5:00 P.M., [New York
City] time, on and] on or before [the earliest of (i)] 5:00
P.M. [New York City] time on , , [(ii) the Accelerated Share Conversion
Date as defined in the Warrant Agreement (referred to herein) or (iii) the
business day immediately prior to the Redemption Date as defined in the
Warrant Agreement,] [Common Stock, par value $.01 per share] [Preferred
Stock, par value $.01 per share] (the "Warrant Securities"), of Hovnanian
Enterprises, Inc. (the "Company"), issued and to be issued under the Warrant
Agreement (as hereinafter defined), on the following basis: during the
period from , through and including , the
exercise price of each Warrant will be $ per share; during the period
from , through and including , the exercise
price of each Warrant will be $ per share (the "Warrant Price"). No
adjustment shall be made for any dividends on any Warrant Securities issuable
upon exercise of any Warrant.
The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof, including any
applicable certifications if the Warrant Securities are issuable in bearer
form, and by paying in full in lawful money of the United States of America
[in cash or by certified check or official bank check or by 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 [Warrant Agent], or its successor as warrant agent (the "Warrant Agent"),
[or ] 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).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
(the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] the person in whose name at the
time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 5.1 of
the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered
form in denominations of and any integral multiples thereof.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
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 [and at ].
[If Offered Securities with Warrants which are not
immediately detachable -- Prior to , this Warrant Certificate may
be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. After such date,
this] [if Offered Securities with Warrants which are immediately detachable
-- Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or ] 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.]
[If Offered Securities with Warrants which are not
immediately detachable -- Except as provided in the immediately preceding
paragraph, after] [If Offered Securities with Warrants which are immediately
detachable or Warrants alone -- 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 [or ] for Warrant Certificates representing the same
aggregate number of Warrants.
The Warrants evidenced by this Certificate may be redeemed
by the Company at its option at any time from and after [ ] but before they
are converted into [Common] [Preferred] Stock, at a redemption price of [ ]
per Warrant subject to adjustment, in accordance with the terms of the
Warrant Agreement.
If the price of a share of [Common] [Preferred] Stock
(determined in accordance with the Warrant Agreement) for each of 10
consecutive trading days is at least [ ] (subject to adjustment as provided
in the Warrant Agreement), the Company may, at its option, accelerate the
date on which the Warrants shall be converted into [Common] [Preferred] Stock
and cease to be exercisable.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be converted into [ ] shares of [Common]
[Preferred] Stock for each [ ] unexercised Warrants hereunder (subject to
adjustments as provided in the Warrant Agreement). After such conversion of
outstanding Warrants represented by this Warrant Certificate into shares of
[Common] [Preferred] Stock, the holder of this Warrant Certificate shall
surrender the same to the Warrant Agent (or, if the Warrant Agreement shall
have been terminated, to the transfer agent for [Common] [Preferred] Stock)
and the holder shall be entitled, upon such surrender, to receive in exchange
therefor a certificate or certificates representing the number of whole
shares of [Common] [Preferred] Stock into which such Warrants shall have been
converted as aforesaid. Unless and until so surrendered, this Warrant
Certificate shall be deemed for all purposes (subject to the further
provisions of this paragraph) to evidence the ownership of the whole number
of shares of [Common] [Preferred] Stock into which the Warrants evidenced
thereby have been so converted. Unless and until this Warrant Certificate
shall be so surrendered, dividends or distributions payable to holders of
record of Common Stock shall not be paid to the holder of this Warrant
Certificate, but there shall be paid to the record holder of this Warrant
Certificate, with respect to the [Common] [Preferred] Stock issued upon such
conversion therefor, (i) upon such surrender, the amount of the dividends or
distributions which shall theretofore have become payable thereon, but
without interest, and (ii) after such surrender, the amount of any dividend
or distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such
payment date.
No holder of this Warrant Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Stock or of any other securities of the Company which may at any
time be issuable on the exercise or conversion thereof, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or
any right to vote upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issue of stock, reclassification of stock, change of
par value, consolidation, share exchange, merger, conveyance, or otherwise)
or, except as provided in the Warrant Agreement, to receive notice of
meetings, or to receive dividends or subscription rights or otherwise, until
the Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised or converted as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Warrant Agent.
Dated as of __________________
HOVNANIAN ENTERPRISES, INC.
By: __________________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must
pay in [U.S.] Dollars [in cash or by certified check or official bank check
or by bank wire transfer] [by bank wire transfer] [in immediately available
funds] the Warrant Price in full for Warrants exercised to [Warrant Agent],
[corporate trust department] [insert address of Warrant Agent], Attn.
[or ], which [payment] [wire transfer] must specify the name of
the holder and the number of Warrants exercised by such holder. In addition,
the holder must complete the information required below, including any
applicable certifications if the Warrant Securities are issuable in bearer
form, and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate
address set forth below. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of
the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase
[Common Stock] [Preferred Stock] of [Title of Warrant Securities] (the
"Warrant Securities") and represents that he has tendered payment for such
Warrant Securities in [U.S.] Dollars [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Hovnanian
Enterprises, Inc., 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 Warrant Securities 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 the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________
Signature Guaranteed Signature_____________________
_____________________________
(Signature must conform in all
respects to name of holder as
specified on face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York, Midwest
or Pacific Stock Exchanges)
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
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) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
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 Warrant Agent 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 broker of
the New York, Midwest or Pacific Stock
Exchange)
Signature Guaranteed
______________________________
____________________
[FN]
Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
