JPMORGAN CHASE & CO. and THE BANK OF NEW YORK MELLON, as Warrant Agent WARRANT AGREEMENT dated as of April 15, 2009 Index Call Warrants linked to the S&P 500® Index Expiring July 13, 2009
Exhibit
4.1
JPMORGAN
CHASE & CO.
and
THE BANK
OF NEW YORK MELLON, as Warrant Agent
_____________________
WARRANT
AGREEMENT
dated as of April 15, 2009
dated as of April 15, 2009
____________________
Index
Call Warrants linked to the S&P 500®
Index
Expiring July 13, 2009
Expiring July 13, 2009
TABLE
OF CONTENTS
PAGE
ARTICLE 1
ISSUANCE
OF WARRANTS
AND FORM, EXECUTION, DELIVERY
AND REGISTRATION
OF
WARRANT
CERTIFICATES AND GLOBAL
WARRANT
CERTIFICATE
|
Section 1.01.
|
Issuance of Warrants
|
1
|
|
Section 1.02.
|
Form, Execution and Delivery of
Warrants
|
2
|
|
Section 1.03.
|
Global Warrant Certificate
|
2
|
|
Section 1.04.
|
Issuance of Definitive Warrant Certificates in
lieu of Global Warrant
Certificate
|
4
|
|
Section 1.05.
|
Definitive Warrant
Certificates
|
4
|
|
Section 1.06.
|
Registration of Transfers and
Exchanges
|
5
|
|
Section 1.07.
|
Mutilated or Missing Warrant
Certificates
|
6
|
|
Section 1.08.
|
Registered Holders
|
7
|
|
Section 1.09.
|
Re-opening of
Issuance
|
7
|
|
ARTICLE 2
|
||
|
DURATION AND EXERCISE OF WARRANTS
|
||
|
Section 2.01.
|
Duration of Warrants, Exercise, Valuation and
Delivery of Warrants.
|
8
|
|
Section 2.02.
|
Payment upon Exercise.
|
11
|
|
Section 2.03.
|
Market Disruption Event.
|
12
|
|
Section 2.04.
|
Return of Money Held Unclaimed for Two
Years
|
14
|
|
Section 2.05.
|
Return of Global Warrant
Certificate
|
14
|
|
ARTICLE 3
|
||
|
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
|
||
|
Section 3.01.
|
Warrantholder May Enforce
Rights
|
14
|
|
ARTICLE 4
|
||
|
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
|
||
|
Section 4.01.
|
Warrants Acquired by the
Company
|
15
|
|
Section 4.02.
|
Payment of Taxes
|
15
|
|
Section
4.03.
|
Treatment of Holders
|
15
|
|
ARTICLE 5
|
||
|
CONCERNING THE WARRANT AGENT
|
||
|
Section 5.01.
|
Warrant Agent
|
16
|
i
|
Section 5.02.
|
Covenant of the Warrant
Agent
|
16
|
|
Conditions
of Warrant Agent’s Obligations
|
16
|
|
|
Section
5.04.
|
Resignation,
Removal and Appointment of Successor
|
19
|
|
ARTICLE
6
|
||
|
MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER
|
||
|
Section
6.01.
|
Merger,
Consolidation, Conveyance or Transfer
|
20
|
|
ARTICLE
7
|
||
|
MISCELLANEOUS
|
||
|
Section
7.01.
|
Amendment
|
21
|
|
Section
7.02.
|
Notices
and Demands to the Company and the Warrant Agent
|
21
|
|
Section
7.03.
|
Addresses
for Notices
|
22
|
|
Section
7.04.
|
Notices
to Holders
|
22
|
|
Section
7.05.
|
Obtaining
of Approvals
|
22
|
|
Section
7.06.
|
Persons
Having Rights Under This Agreement
|
22
|
|
Section
7.07.
|
Inspection
of Agreement
|
22
|
|
Section
7.08.
|
Headings
|
23
|
|
Section
7.09.
|
Counterparts
|
23
|
|
Section
7.10.
|
Applicable
Law
|
23
|
|
Section
7.11.
|
Entire
Agreement
|
23
|
|
Section
7.12.
|
Certain
Matters Relating to the S&P 500® Index.
|
23
|
|
Section
7.13.
|
Waiver
of Jury Trial
|
23
|
EXHIBIT
A Form of Warrant Certificate
EXHIBIT
A-1 Form of Global Warrant Certificate
EXHIBIT
B The Bank of New York Mellon Fee Schedule
ii
THIS
AGREEMENT, dated as of April 15, 2009, between JPMorgan Chase & Co. (the
“Company”) and The Bank
of New York Mellon, as Warrant Agent (the “Warrant Agent”).
WHEREAS,
the Company proposes to issue 15,000 of its Index Call Warrants linked to the
S&P 500® Index
expiring July 13, 2009 (each a “Warrant” and collectively, the
“Warrants”),
representing the right to receive from the Company on exercise an amount in U.S.
Dollars equal to the Cash Settlement Value (as defined herein) determined by
reference to the appreciation of the S&P 500® Index on
the terms and conditions set forth in this Agreement; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance, transfer
and exercise of the Warrants, and the Company desires to set forth herein, among
other things, the provisions of the Warrants and the terms and conditions on
which they may be issued, transferred, exercised and cancelled;
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
1
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES AND GLOBAL WARRANT CERTIFICATE
Section
1.01. Issuance of
Warrants. (a) The Warrants are unsecured contractual obligations of the
Company and will rank pari
passu parity with the Company’s other unsecured contractual obligations
and with the Company’s unsecured and unsubordinated debt.
(b) Each
Warrant entitles a Registered Holder (as defined herein) of a Warrant (each a
“Warrantholder”) to
receive upon exercise, subject to the provisions contained herein, the Cash
Settlement Value, of such Warrant. A Warrant will not entitle or require a
Warrantholder to purchase or to take delivery from the Company of any shares of
any component stocks of the Index or any Successor Index (as defined herein)
(the “Underlying
Stocks”), or any other securities. Following exercise of a Warrant, the
Company will make only a U.S. Dollar cash payment in an amount equal to the Cash
Settlement Value, if any, of such Warrant. The Company is under no obligation
to, nor will it, sell or deliver to any Warrantholder any shares of any of the
Underlying Stocks or any other securities in connection with the exercise of any
Warrants. Warrantholders will not receive any interest on any Cash Settlement
Value, and the Warrants will not entitle the Warrantholders to any of the rights
of holders of any of the Underlying Stocks or any other securities. Except as
otherwise provided herein, beneficial owners of interests in the Global Warrant
Certificate (as defined below) shall not
Section
1.02. Form, Execution and
Delivery of Warrants. (a) The Warrants, whenever issued, shall be
represented by a global certificate in registered form evidencing such Warrants
substantially in the form set forth in Exhibit A-1 hereto (the “Global Warrant Certificate”)
deposited with, or on behalf of, The Depository Trust Company, New York, New
York (the “Depositary”,
which term, as used herein, includes any successor securities depositary
selected by the Company), as more fully described in Section 1.03 herein, except
in the circumstances set forth in Section 1.04 hereof.
Section
1.03. Global Warrant
Certificate. (a) Each Global Warrant Certificate issued in accordance
with this Section 1.03 shall be substantially in the form set forth in Exhibit
A-1 hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may represent any
number of whole Warrants. Each Global Warrant Certificate may have imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification or designation and such legends or endorsements as the officers
of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and which 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 of any
Depositary referred to herein, or to conform to usage. Each Global Warrant
Certificate shall be signed on behalf of the Company upon the same conditions,
in substantially the same manner and with the same effect as the Warrant
Certificates as set forth in Section 1.05 below.
(b) The
Warrant Agent is authorized upon receipt of a Global Warrant Certificate from
the Company, duly executed on behalf of the Company, to countersign such Global
Warrant Certificate. The Global Warrant Certificate shall be manually
countersigned and dated the date of its countersignature by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. The Warrant
Agent shall upon order of the Company deliver the Global Warrant Certificate to
or upon the order of the Depositary. One or more Global Warrant Certificates may
be executed by the Company and delivered to the Warrant Agent on or after the
date of execution of this Agreement; provided that only one Global
Warrant Certificate shall be outstanding at any one time (unless the rules of
the Depositary in respect of the maximum amount of securities to be represented
by any one global certificate require additional certificates).
(c) The
Global Warrant Certificate will initially be registered in the name of a nominee
of the Depositary. The Warrant holdings of the entities entitled to execute,
clear and settle transactions through the Depositary (each a “Participant”) will be recorded
on the books of the Depositary. The holdings of customers of the Participants
and the identity of the beneficial owners of the
2
Neither
the Company nor the Warrant Agent will have any responsibility or liability for
any aspect of the records relating to beneficial ownership interests in the
Global Warrant Certificate or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The
Company may from time to time select a new entity to act as Depositary with
respect to the Warrants and, if such selection is made, the Company shall
promptly give the Warrant Agent notice to such effect identifying the new
Depositary, and the Global Warrant Certificate shall be delivered to the Warrant
Agent and shall be transferred to the new Depositary as provided below as
promptly as possible. Appropriate changes may be made in the forms of the Global
Warrant Certificate and the related notices, if any, to be delivered in
connection with an exercise to reflect the selection of the new
Depositary.
(d)
Except as otherwise provided herein or in the Global Warrant Certificate, the
Warrant Agent shall from time to time register the transfer of the Global
Warrant Certificate in its records (which may be maintained electronically),
subject to such reasonable regulations as the Company or the Warrant Agent may
prescribe, only to the Depositary, to another nominee of the Depositary, to a
successor Depositary or to a nominee of a successor Depositary, upon surrender
of such Global Warrant Certificate, duly endorsed, or accompanied by a written
instrument or instruments of transfer in a form satisfactory to the Warrant
Agent and the Company, duly executed by the Registered Holder (as defined
herein) thereof or by the duly appointed legal representative thereof, or by its
duly authorized attorney, such signature to be guaranteed by a bank or trust
company with a correspondent office in The City of New York or by a broker or
dealer which is a member of the Financial Industry Regulatory Authority (“FINRA”) or by a member of a
national securities exchange. Upon any such registration of transfer, a new
Global Warrant Certificate shall be issued to the transferee and the surrendered
Global Warrant Certificate shall be cancelled by the Warrant Agent.
The
Global Warrant Certificate may be transferred as provided in paragraph (d)
above, when surrendered to the Warrant Agent’s Transfer Office, or at the
address of any successor Warrant Agent (as provided in Section 5.04), for
another Global Warrant Certificate of like tenor and representing a like number
of unexercised Warrants. The “Warrant Agent’s Transfer
Office” shall be the office of the Warrant Agent maintained for purposes
of transfer and tender in the Borough of Manhattan, The City of New York or at
the address of any successor Warrant Agent (as provided in Section 5.04) and
which is, on the date of this Agreement, The Bank of New York Mellon, 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX 00000.
3
Section
1.05. Definitive Warrant
Certificates. (a) If, pursuant to Section 1.04 hereof, Warrants are
issued in definitive form, such Warrants shall be represented by certificates in
registered form substantially in the form set forth in Exhibit A hereto (the
“Warrant Certificates”),
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement, and may represent any whole
number of Warrants. The Warrant Certificates may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and which 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
self-regulatory organization on which the Warrants may be listed, or of any
securities depositary, or to conform to usage. Warrant Certificates shall be
signed on behalf of the Company by any of: the chairman of its Board of
Directors, its president, the chairman of its executive committee, any vice
chairman of its Board of Directors, the General Counsel, any Managing
4
(b) In case
any officer of the Company who shall have signed a Warrant Certificate, either
manually or by facsimile signature, shall cease to be such officer before such
Warrant Certificate shall have been countersigned and delivered by the Warrant
Agent to the Company or delivered by the Company, such Warrant Certificate
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificate had not ceased to be such officer of the Company; and
the Warrant Certificate may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Warrant Certificate, shall be a
proper officer of the Company to sign such Warrant Certificate, although at the
date of the execution of this Warrant Agreement any such person was not such
officer.
(c) Each
Warrant Certificate, when executed on behalf of the Company in accordance with
Section 1.05(a), shall be delivered to the Warrant Agent, which shall manually
countersign and deliver the same to or upon the order of the Company. After the
initial issuance of Warrants hereunder, additional Warrant Certificates may be
issued on original issuance upon two Business Days (as defined herein) prior
notice to the Warrant Agent. Each Warrant Certificate shall be dated the date of
its countersignature. A Warrant Certificate shall not be valid for any purpose,
and no Warrant evidenced thereby shall be exercisable, unless and until such
Warrant Certificate has been countersigned by the manual signature of an
authorized officer of the Warrant Agent. Such countersignature by an authorized
officer of the Warrant Agent upon any Warrant Certificate signed by the Company
in accordance with Section 1.05(a) shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued hereunder.
Section
1.06. Registration of
Transfers and Exchanges. (a) Except as otherwise provided herein or in
the Warrant Certificate, the Warrant Agent shall from time to time register the
transfer of any outstanding Warrant Certificates upon the records to be
maintained by it for that purpose (the “Warrant Register”) at the
Warrant Agent’s Transfer Office, subject to such reasonable regulations as the
Company or the Warrant Agent may prescribe, upon surrender thereof at the
Warrant Agent’s Transfer Office, duly endorsed by, or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Company duly executed by, the Registered Holder(s) thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by a bank or trust company with a correspondent
office in The City of New York or by a broker or dealer which is a FINRA member
or by a member of a national securities exchange. Upon any such registration
of
5
transfer,
a new Warrant Certificate shall be issued to the transferee(s) and the
surrendered Warrant Certificate shall be cancelled by the Warrant
Agent.
(c) Warrant
Certificates issued upon transfer or exchange pursuant to Section 1.06(a) or (b)
shall be valid obligations of the Company, evidencing the same obligations of
the Company as the Warrant Certificates surrendered for transfer or exchange,
and entitled to the same benefits under this Agreement as were such Warrant
Certificates prior to such surrender.
(d) Except as
provided in Section 1.07, no service charge shall be made for any registration
of transfer or exchange of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Warrant Certificates, other than exchanges pursuant to this Section 1.06 not
involving any transfer.
Section
1.07. Mutilated or Missing
Warrant Certificates. (a) If any Warrant Certificate is mutilated, lost,
stolen or destroyed, the Company may in its discretion execute, and the Warrant
Agent may countersign and deliver, in exchange and substitution for the
mutilated Warrant Certificate, or in replacement for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate of like tenor and
representing an equivalent number of Warrants, bearing an identification number
not contemporaneously outstanding, but only (in case of loss, theft or
destruction) upon receipt of evidence satisfactory to the Company and the
Warrant Agent of such loss, theft or destruction of such Warrant Certificate and
security or indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe.
(b) In case
any such mutilated, lost, stolen or destroyed Warrant Certificate has been or is
about to be deemed to be exercised, the Company in its absolute discretion may,
instead of issuing a new Warrant Certificate, direct the Warrant Agent to treat
the same as being subject to automatic exercise.
(c) Each new
Warrant Certificate issued pursuant to this Section 1.07 in lieu of any lost,
stolen or destroyed Warrant Certificate shall be an original,
6
additional contractual
obligation of the Company, and shall be entitled to the same benefits under this
Agreement as the Warrant Certificate that was lost, stolen or
destroyed.
(e) The
provisions of this Section 1.07 are exclusive and shall preclude (to the extent
lawful) any other rights and remedies with respect to the replacement or payment
of mutilated, lost, stolen or destroyed Warrant Certificates.
Section
1.08. Registered
Holders. Prior to due presentment for registration of transfer, the
Company, the Warrant Agent, and any agent of the Company or the Warrant Agent,
may deem and treat the person in whose name a Warrant Certificate shall be
registered in the Warrant Register (a “Registered Holder”) as the absolute owner
of the Warrants evidenced thereby (notwithstanding any
notation of ownership or other writing on the Warrant Certificate) for any
purpose whatsoever, and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent, shall be
affected by any notice to the contrary. In the case of Warrants represented by a
Global Warrant Certificate, the nominee of the Depositary shall be deemed the
sole Registered Holder of the Warrants, and the Warrant Agent and the Company
shall be entitled to conclusively rely on and act pursuant to instructions of
the Depositary.
Section
1.09. Re-opening of
Issuance. The Company reserves the right to issue, from time to time
after the date of execution of this Agreement, additional Warrants that will be
considered as part of the same series as the Warrants issued on the date hereof,
and in connection therewith the Global Warrant Certificate may be exchanged for
a new Global Warrant Certificate to reflect the issuance by the Company of such
additional Warrants. To effect such an exchange, the Company shall deliver to
the Warrant Agent a new Global Warrant Certificate duly executed on behalf of
the Company as provided for in Section 1.03. The Warrant Agent shall
authenticate the new Global Warrant Certificate as provided in this Section and
shall deliver the new Global Warrant Certificate to the Depositary in exchange
for, and upon receipt of, the Global Warrant Certificate then held by the
Depositary. The Warrant Agent shall cancel the Global Warrant Certificate
delivered to it by the Depositary, destroy such Global Warrant Certificate and
provide a certificate of disposal to the Company, upon its written request
therefor.
7
DURATION AND EXERCISE OF WARRANTS
Section
2.01. Duration of Warrants,
Exercise, Valuation and Delivery of Warrants.
(a) Expiration Date; Automatic
Exercise. The “Expiration Date” for each
Warrant shall be July 13, 2009, subject to adjustment as described below. If the
scheduled Expiration Date is not a Business Day, then the Expiration Date will
be the next succeeding Business Day following such scheduled Expiration Date.
If, due to a Market Disruption Event or otherwise, the Observation Date (as
defined below) is postponed so that it falls less than three Business Days prior
to the scheduled Expiration Date, the Expiration Date will be the third Business
Day following the Observation Date, as postponed. The Warrants will be
automatically exercised on the Expiration Date and the Warrantholders will be
entitled to a payment in cash, if any, equal to the Cash Settlement Value on the
Expiration Date.
X.X.
Xxxxxx Securities Inc., (“JPMSI”) will serve as
Calculation Agent (the “Calculation Agent”) for the
Warrants.
(b) Observation Date. The “Observation Date” for each
Warrant shall be
July 8, 2009, subject to postponement as described below. If the Observation
Date is not a Trading Day or if there is a Market Disruption Event on such day,
the Observation Date will be postponed to the immediately succeeding Trading Day
during which no Market Disruption Event shall have occurred or be continuing. In
no event, however, will the Observation Date be postponed more than ten Business
Days following the date originally scheduled to be the Observation Date. If the
tenth Business Day following the date originally scheduled to be the Observation
Date is not a Trading Day, or if there is a Market Disruption Event on such
tenth Business Day, the Calculation Agent will determine the Index Closing Level
for the Observation Date on such tenth Business Day in accordance with the
formula for and method of calculating the Index Closing Level last in effect
prior to the commencement of the Market Disruption Event (or prior to the
non-Trading Day), using the closing price (or, if trading in the relevant
securities has been materially suspended or materially limited, the Calculation
Agent’s good faith estimate of the closing price that would have prevailed but
for such suspension or limitation or non-Trading Day) on such tenth Business Day
of each security most recently constituting the Index.
(c) Determination of Cash Settlement
Value. The “Cash
Settlement Value” with respect to each
Warrant will be an amount in U.S. Dollars equal to the greater of (i) $0
and (ii) the notional amount per Warrant multiplied by the lesser of (A) the
Index Return and (B) the Maximum Return.
The
“Index Return” is
calculated as follows:
8
Initial
Index Level
The
“Index” means the
S&P 500® Index
designed, developed, maintained and operated by Standard and Poor’s, a division
of the XxXxxx-Xxxx Companies, Inc (“S&P” or the “Index Sponsor”).
The
“Initial Index Level” is
849.50, as determined in the sole discretion of the Calculation Agent on the
pricing date of April 9, 2009 (the “Pricing Date”).
The
“Ending Index Level” is
the Index Closing Level on the Observation Date.
The
“Index Closing Level” on
any Trading Day will equal the closing level of the Index or any Successor Index
(as defined below) published following the regular official weekday close of
trading on such Trading Day. In certain circumstances, the “Index Closing Level”
will be based on the alternative calculation of the Index as described in
Section 2.01(e) at the regular official weekday close of the principal trading
session of the New York Stock Exchange (“NYSE”), the NYSE Alternext US
LLC (the “NYSE
Alternext”), The NASDAQ Stock Market or any Relevant Exchange for the
Index or Successor Index, as applicable.
The
“Maximum Return” is
6.00%.
The
“notional amount” of
each Warrant is $1,000.
“Business Day” means any day
other than a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to close or a day
on which transactions in U.S. Dollars are not conducted.
“Trading Day” means a day, as
determined by the Calculation Agent, on which trading is generally conducted on
the NYSE, the NYSE Alternext, The NASDAQ Stock Market, the Chicago Mercantile
Exchange Inc., the Chicago Board Options Exchange, Incorporated and in the
over-the-counter market for equity securities in the United States.
“U.S. Dollars”, “U.S. $” or “$” are references to the
lawful currency of the United States of America.
Not later
than 5:00 p.m., New York City time, on the Observation Date, the Calculation
Agent shall determine the Cash Settlement Value for each Warrant in the manner
set forth in Section 2.01(c) based on the Initial Index Level and the Ending
Index Level on such Observation Date and shall provide written notice to the
Warrant Agent at the Warrant Agent’s Business Office, on which notice the
Warrant Agent may conclusively rely, of that Cash Settlement Value
no
9
(d) Alternate
Index Determination.
(i) If the
Index Sponsor discontinues publication of the Index and the Index Sponsor or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the discontinued
Index (such index being referred to herein as a “Successor Index”), then the
Index Closing Level on the Observation Date or any other relevant date on which
the Index Closing Level is to be determined will be determined by reference to
the level of such Successor Index at the close of trading on the Relevant
Exchange for such Successor Index on such day.
(ii) Upon any
selection by the Calculation Agent of a Successor Index, the Calculation Agent
will cause written notice thereof to be promptly furnished to the Warrant Agent,
to the Company and to the Warrantholders.
(iii) If the
Index Sponsor discontinues publication of the Index prior to, and such
discontinuation is continuing on, the Observation Date or any other relevant
date on which the Index Closing Level is to be determined, and the Calculation
Agent determines, in its sole discretion, that no Successor Index is available
at such time, or the Calculation Agent has previously selected a Successor Index
and publication of such Successor Index is discontinued prior to, and such
discontinuation is continuing on, the Observation Date or such other relevant
date, then the Calculation Agent will determine the Index Closing Level for such
date. The Index Closing Level will be computed by the Calculation Agent in
accordance with the formula for and method of calculating the Index or Successor
Index, as applicable, last in effect prior to such discontinuation, using the
closing price (or, if trading in the relevant securities has been materially
suspended or materially limited, the Calculation Agent’s good faith estimate of
the closing price that would have prevailed but for such suspension or
limitation) at the close of the principal trading session on such date of each
security most recently composing the Index or Successor Index, as
applicable.
(iv) If at any
time the method of calculating the Index or a Successor Index, or the level
thereof, is changed in a material respect, or if the Index or a Successor Index
is in any other way modified so that the Index or such Successor Index does not,
in the opinion of the Calculation Agent, fairly represent the level of the Index
or such Successor Index had such changes or modifications not been made, then
the Calculation Agent will, at the close of business in New York City on each
date on which the Index Closing Level is to be determined, make such
calculations and
10
Section
2.02. Payment upon
Exercise.
(a) No later
than 12:00 noon, New York City time, on the Business Day immediately succeeding
the Observation Date, the Warrant Agent shall determine the aggregate Cash
Settlement Value of all outstanding Warrants based on the Cash Settlement Value
for each Warrant provided by the Calculation Agent. No later than 2:00 P.M., New
York City time, on the Business Day immediately succeeding the Observation Date,
the Warrant Agent shall notify the Company of the aggregate Cash Settlement
Value payable in respect of the Warrants. The Warrant Agent shall promptly
advise the Company of such other matters relating to the exercised Warrants as
the Company shall reasonably request. The Calculation Agent will not be
responsible for good faith errors or omissions in determining or disseminating
information regarding the Ending Index Level or determining the Cash Settlement
Value for a Warrant.
(b) In the
case of Warrants represented by a Global Warrant Certificate (“Book-Entry Warrants”), the
Company shall make available to the Warrant Agent, no later than 2:00 P.M., New
York City time, on the Expiration Date, same day funds in an amount sufficient
to pay the aggregate Cash Settlement Value of the Warrants. If the Company has
made those funds available to the Warrant Agent by that time, the Warrant Agent
will be responsible for making a payment to the Depositary, against receipt of
the Global Warrant Certificate, prior to the close of business on such
Expiration Date. Such payment shall be in an amount equal to the aggregate Cash
Settlement Value of the Warrants. The Depositary will be responsible for
disbursing such payment to each appropriate Participant and that Participant
will be responsible for disbursing such payments to the beneficial owners of
Warrants it represents and to each brokerage firm for which it acts as agent.
Each such brokerage firm will be responsible for disbursing payments to the
beneficial owners of Warrants it represents.
(c) In the
case of Warrants represented by Warrant Certificates (“Definitive Warrants”), the
Company shall make available to the Warrant Agent, no later than 2:00 P.M., New
York City time, on the Expiration Date, same
11
Section
2.03. Market
Disruption Event.
(a) With
respect to the Index or the relevant Successor Index, a “Market Disruption Event”
means
(i) a
suspension, absence or material limitation of trading of equity securities then
constituting 20% or more of the level of the Index (or the Successor Index) on
the Relevant Exchanges for such securities for more than two hours of trading
during, or during the one hour period preceding the close of, the principal
trading session on such Relevant Exchange; or
(ii) a
breakdown or failure in the price and trade reporting systems of any Relevant
Exchange as a result of which the reported trading prices for equity securities
then constituting 20% or more of the level of the Index (or the Successor Index)
during the one hour preceding the close of the principal trading session on such
Relevant Exchange are materially inaccurate; or
(iii) a
suspension, absence or material limitation of trading on the primary exchange or
market for trading in futures or options contracts related to the Index (or the
Successor Index) for more than two hours of trading during, or during the one
hour period preceding the close of, the principal trading session on such
exchange or market; or
(iv) a
decision to permanently discontinue trading in the relevant futures or options
contracts;
in each
case as determined by the Calculation Agent in its sole discretion;
and
(v) a
determination by the Calculation Agent in its sole discretion that any event
described above materially interfered with the
12
Company’s ability or the
ability of any of the Company’s affiliates to adjust or unwind all or a
material portion of any hedge with respect to the
Warrants.
(b) For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) exists at any time, if trading in a security
included in the Index (or the Successor Index) is materially suspended or
materially limited at that time, then the relevant percentage contribution of
that security to the level of the Index (or the Successor Index) will be based
on a comparison of:
(i) the
portion of the level of the Index (or the Successor Index) attributable to that
security relative to
(ii) the
overall level of the Index (or the Successor Index), in each case immediately
before that suspension or limitation.
(c) For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) has occurred with respect to the Index (or the
Successor Index):
(i) a
limitation on the hours or number of days of trading will not constitute a
Market Disruption Event if it results from an announced change in the regular
business hours of the Relevant Exchange, or the primary exchange or market for
trading in futures or options contracts related to the Index (or the Successor
Index);
(ii) limitations
pursuant to the rules of any Relevant Exchange similar to NYSE Rule 80B (or any
applicable rule or regulation enacted or promulgated by any other
self-regulatory organization or any government agency of scope similar to NYSE
Rule 80B as determined by the Calculation Agent) on trading during significant
market fluctuations will constitute a suspension, absence or material limitation
of trading;
(iii) a
suspension of trading in futures or options contracts on the Index
(or the Successor Index) by the primary exchange or market for trading in such
contracts by reason of
|
(A)
|
a
price change exceeding limits set by such exchange or
market,
|
|
(B)
|
an
imbalance of orders relating to such contracts,
or
|
|
(C)
|
a
disparity in bid and ask quotes relating to such
contracts
|
13
will, in
each such case, constitute a suspension, absence or material limitation of
trading in futures or options contracts related to the Index (or the Successor
Index); and
“Relevant Exchange” means, with
respect to the Index or the relevant Successor Index, the primary U.S. exchange
or market of trading for any security (or any combination thereof) then included
in the Index or such Successor Index, as applicable.
Section
2.04. Return of Money Held
Unclaimed for Two Years. Except as otherwise provided herein, any money
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Value of any Warrants and not applied but remaining unclaimed for two
years after the date upon which such Cash Settlement Value shall have become due
and payable shall be repaid by the Warrant Agent to the Company, at the
Company’s request, and the holders of such Warrants shall thereafter look only
to the Company for any payment which such holders may be entitled to collect and
all liability of the Warrant Agent with respect to such money shall thereupon
cease; provided that
the Warrant Agent, before making any such repayment, may at the expense of the
Company notify (a) in the case of Book-Entry Warrants, the Depositary (on behalf
of the Participants concerned), that said money has not been so applied and
remains unclaimed and that after a date named in the notification any unclaimed
balance of said money then remaining will be returned to the Company or (b) in
the case of Definitive Warrants, the Registered Holders.
Section
2.05. Return of Global Warrant
Certificate. In the event a Global Warrant Certificate is issued, at such
time as all of the Warrants evidenced by such Certificate have been exercised or
otherwise cancelled and all payments to the Depositary have been made as
provided herein, the Warrant Agent shall cancel such Global Warrant Certificate
and dispose of the cancelled Global Warrant Certificate in accordance with its
customary procedures (unless instructed by the Company to deliver the Global
Warrant Certificate to the Company) and shall provide a certificate of
disposition to the Company upon its written request therefor.
ARTICLE
3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
Section
3.01. Warrantholder May
Enforce Rights. Notwithstanding any of the provisions of this Agreement,
any Warrantholder, without the consent of
14
the
Warrant Agent or any other person, may, in and for its own behalf, enforce, and
may institute and maintain, any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, its right to exercise, and to
receive payment for, its Warrants as provided in this Agreement.
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
Section
4.01. Warrants Acquired by the
Company. In the event the Company shall purchase or otherwise acquire
Warrants, such Warrants may, at the option of the Company, be (a) in the case of
Book-Entry Warrants, surrendered free through a Participant to the Depositary
for credit to the account of the Warrant Agent maintained at the Depositary, and
if so credited, the Warrant Agent shall promptly note the cancellation of such
Warrants by notation on the records of the Warrant Agent and the Warrant Agent
shall cause its records to be marked to reflect the reduction in the number of
Warrants represented by the Global Warrant Certificate by the number of Warrants
so cancelled promptly after such account is credited or (b) in the case of
Definitive Warrants, delivered to the Warrant Agent, and if so delivered, the
Warrant Agent shall promptly cancel such Warrants on the records of the Warrant
Agent. In the case of Book-Entry Warrants, such Warrants may also, at the option
of the Company, be resold by the Company directly or to or through any of its
affiliates in lieu of being surrendered to the Depositary. No Warrant
Certificate shall be countersigned in lieu of or in exchange for any Warrant
which is cancelled as provided herein, except as otherwise expressly permitted
by this Agreement.
Any
cancelled Warrant Certificate held by the Warrant Agent under this Agreement
shall be disposed of by the Warrant Agent in accordance with its customary
procedures unless otherwise directed by the Company, and the Warrant Agent shall
deliver a certificate of disposition to the Company evidencing the same upon its
written request therefor.
Section
4.02. Payment of Taxes.
The Company will pay all stamp, withholding and other duties, if any,
attributable to the initial issuance of Warrants; provided, however, that, anything in
this Agreement to the contrary notwithstanding, the Company shall not be
required to pay any tax or other governmental charge which may be payable in
respect of any transfer involving any beneficial or record interest in, or
ownership interest of, any Warrants, Warrant Certificates or Global Warrant
Certificate.
Section
4.03. Treatment of
Holders. The Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may deem and treat the person in whose name a Warrant
Certificate or the Global Warrant Certificate shall be registered in the records
of the Warrant Agent as the absolute owner of such Warrant Certificate or Global
Warrant Certificate, as the case may be (notwithstanding any notation of
ownership or other writing thereon) (the
15
“Holder”)
for any purpose and as the person entitled to exercise the rights or receive any
payment, represented by the Warrants evidenced hereby, and neither the Company
nor the Warrant Agent, nor any agent of the Company or the Warrant Agent shall
be affected by any notice to the contrary, except that the Warrant Agent and the
company shall be entitled to conclusively rely on and act pursuant to
instructions of the Depositary, as applicable, as contemplated by Article 1 of this Agreement. This Section shall be without prejudice
to the rights of Holders as described elsewhere herein.
ARTICLE
5
CONCERNING THE WARRANT AGENT
Section
5.01. Warrant Agent.
The Company hereby appoints The Bank of New York Mellon as Warrant Agent of the
Company in respect of the Warrants upon the terms and subject to the conditions
set forth herein; and The Bank of New York Mellon hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in this Agreement and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it with its consent. All of the terms and provisions with respect to such
powers and authority contained in any Warrant Certificates or the Global Warrant
Certificate are subject to and governed by the terms and provisions
hereof.
Section
5.02. Covenant of the Warrant
Agent. The Warrant Agent covenants and agrees to maintain offices,
staffed by qualified personnel, with adequate facilities for the discharge of
its responsibilities under this Agreement, including, without limitation, the
computation of the aggregate Cash Settlement Values, and the timely settlement
of the Warrants upon exercise thereof.
Section
5.03. 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 Warrants shall be subject:
(a) The
Company agrees promptly to pay the Warrant Agent the compensation set forth in
Exhibit B hereto for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for its reasonable out-of- pocket expenses (including
attorneys’ fees and expenses) incurred by the Warrant Agent without gross
negligence, bad faith or willful misconduct on its part in connection with the
services rendered by it hereunder. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability, claim,
damage or expense (including reasonable attorneys’ fees and expenses) incurred
without gross negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as such Warrant
Agent hereunder, as well as the reasonable costs and expenses of
16
defending
itself against any claim of liability in the premises. The Warrant Agent agrees
to indemnify the Company for, and to hold it harmless against, any loss,
liability, cost or expense (including reasonable attorneys’ fees and expenses)
incurred by the Issuer by reason of its being made a party to a suit or claim
arising out of this Warrant Agreement as a result of the gross negligence, bad
faith or willful misconduct of the Warrant Agent arising out of or in connection
with its acting as Warrant Agent hereunder. The obligations of the Company
and the Warrant Agent under this Section 5.03(a) shall survive the termination
of this Agreement and resignation or removal of the Warrant
Agent.
(b) In acting
under this Agreement, the Warrant Agent is acting solely as a non-fiduciary
agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any of the owners or holders of the
Warrants.
(c) The
Warrant Agent undertakes to perform such duties and only such duties as are
expressly set forth herein to be performed by it, and no implied duties,
covenants or obligations, fiduciary or otherwise, shall be read into this
Agreement against the Warrant Agent.
(d) The
Warrant Agent may consult with counsel satisfactory to it (including counsel to
the Company), and the opinion 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 opinion of such
counsel. In no event shall the Warrant Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to loss of profit), even if the Warrant Agent has been advised of the likelihood
of such loss or damage and regardless of the form of action.
(e) 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 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.
(f) The
Warrant Agent, and its officers, directors and employees, may become the owner
of, or acquire any interest in, any Warrants or other obligations of the
Company, 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 behalf of, or as depositary, trustee or agent for, any
committee or body of owners or Warrantholders or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder.
(g) The
Warrant Agent shall not be under any liability for interest on any monies at any
time received by it pursuant to any of the provisions of this Agreement nor
shall it be obligated to segregate such monies from other monies
17
held by
it, except as required by law. The Warrant Agent shall not be responsible for
advancing funds on behalf of the Company.
(h) The
Warrant Agent shall not be under any responsibility with respect
to the validity or sufficiency of this Agreement or the execution and delivery
hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of
the Warrant Certificates or the Global Warrant Certificate (except its
countersignature thereof) or with respect to any matter relating to the offering
material used in connection with the offer and sale of the
Warrants.
(i) The
recitals contained herein and in the Warrant Certificates or the Global Warrant
Certificate (except as to the Warrant Agent’s countersignature thereon) shall be
taken as the statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of the same.
(j) The
Warrant Agent shall not be under any obligation to take any action hereunder
likely to involve it in any expense or liability, the payment of which is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the application by the
Company of any proceeds. 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 in this Agreement or in any Warrant Certificate or the
Global Warrant Certificate or in the case of the receipt of any written demand
from a Warrantholder 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 7.02 hereof, to make any demand upon the Company.
(k) The
Warrant Agent shall have no obligation or liability in respect of the
registration or exemption therefrom of the Warrants under federal or state
securities laws in respect of the sufficiency or the conformity of any transfer
of the Warrants pursuant to the terms of this Agreement or any other document
contemplated hereby.
(l) The
Warrant Agent shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; terrorism; sabotage not caused by the Warrant
Agent; epidemics; riots; loss or malfunction of utilities, computer (hardware or
software) or communications service not caused by the Warrant Agent; accidents
not caused by the Warrant Agent; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the Warrant Agent
shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
18
Section
5.04.
Resignation, Removal and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrants, that
there shall at all times be a Warrant Agent hereunder until all the Warrants are
no longer outstanding or until monies for the payment of all outstanding
Warrants, if any, shall have been paid to the Warrant Agent and shall
have been returned to the Company as provided in Section 2.04,
whichever occurs earlier.
(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, subject to the appointment of a
successor Warrant Agent and acceptance of such appointment by such successor
Warrant Agent as hereinafter provided. 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 banking institution organized under the laws of the
United States of America or one of the states thereof, have a combined capital
and surplus of at least $100,000,000 (as set forth in its most recent reports of
condition published pursuant to law or to the requirements of any United States
federal or state regulatory or supervisory authority) and having an office in
the Borough of Manhattan, The City of New York) and the acceptance of such
appointment by such successor Warrant Agent. In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent’s notice of resignation or removal, the Warrant Agent may apply to
any court of competent jurisdiction for the designation of a successor Warrant
Agent. The obligation of the Company under Section 5.03(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 give notice of its intent to resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or make an assignment for the benefit of its creditors,
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or if any public
officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
promptly appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument
19
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 as Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor
Warrant Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor (including, without
limitation, the Warrant Register), as Warrant Agent
hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or
any corporation with which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all the corporate agency
assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE
6
MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER
Section
6.01. Merger, Consolidation,
Conveyance or Transfer. If at any time the Company merges or consolidates
with any other Person (as defined below) or sells or conveys all or
substantially all of its assets to any other Person, then in any such event the
successor, if other than the Company, shall by an instrument of assumption
delivered to the Warrant Agent succeed to and be substituted for the Company,
with the same effect as if it had been named herein and in the Warrants as the
Company. The Company shall thereupon, except in the case of a transfer by way of
lease, be relieved of any further obligation hereunder and under the Warrants,
and the Company, as the predecessor corporation, except in the case of a
transfer by way of lease, may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor and assuming Person may thereupon cause
to be signed, and may issue either in its own name or in the name of the
Company, Global Warrant Certificates or Warrant Certificates, as the case may
be, evidencing any or all of the Warrants issuable hereunder that theretofore
shall not have been signed by the Company. 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.
20
“Person” means any individual,
corporation, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
In the
case of any such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Global Warrant
Certificates or Warrant Certificates, as the case may be, representing the
Warrants thereafter to be issued as may be appropriate.
ARTICLE
7
MISCELLANEOUS
Section
7.01. Amendment. (a)
This Agreement and the terms of the Warrants may be amended by the Company and
the Warrant Agent, without the consent of the Warrantholders, for the purpose of
(i) curing any ambiguity, (ii) curing, correcting or supplementing any defective
or inconsistent provision contained herein or therein or (iii) amending this
Agreement or the term of the Warrants in any other manner which the Company may
deem necessary or desirable and which will not materially and adversely affect
the interests of the owners or holders of the Warrants.
(b) The
Company and the Warrant Agent may modify or amend this Agreement and the terms
of the Warrants, with the consent of the Warrantholders (by vote of Registered
Holders) holding not less 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 (i) reduces the amounts receivable upon
expiration of the warrants, (ii) otherwise materially and adversely affects the
exercise rights of the Warrantholders, or (iii) reduces the percentage of the
number of outstanding Warrants the consent of whose holders is required for
modification or amendment of this Agreement, may be made without the consent of
each Warrantholder affected thereby. In the case of Warrants evidenced by a
Global Warrant Certificate, the Company and the Warrant Agent shall be entitled
to rely upon certification in form satisfactory to each of them that any
requisite consent has been obtained from holders of beneficial ownership
interests in the relevant Global Warrant Certificate. Such certification may be
provided by the Depositary on behalf of Participants acting on behalf of
beneficial owners of Warrants, provided that any such
certification states the Warrant holdings of such Participants.
Section
7.02. Notices and Demands to
the Company and the Warrant Agent. If the Warrant Agent
shall receive any notice or demand addressed to the
21
Company by any Registered
Holder or Participant pursuant to the provisions of this Agreement, the Warrant
Agent shall promptly forward such notice or demand to the Company.
Section
7.03.
Addresses for Notices. Any communications to the Warrant Agent with
respect to this Agreement shall be addressed to The Bank of New York Mellon, 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX 00000 (the “Warrant
Agent’s Business Office”) and any communications to the Company with
respect to this Agreement shall be addressed to JPMorgan Chase & Co., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000, Attention: Corporate Treasury, (or such other address as shall
be specified in writing by the Warrant Agent or the Company,
respectively).
Section
7.04. Notices to
Holders. The Company may cause to have notice given to the Warrantholders
by providing the Warrant Agent with a form of notice to be distributed by (a) in
the case of Book-Entry Warrants, the Depositary to be distributed by the
Depositary to Participants in accordance with the custom and practices of the
Depositary or (b) in the case of Definitive Warrants, the Warrant Agent to
Registered Holders.
Section
7.05. Obtaining of
Approvals. The Company will from time to time take all action which may
be necessary to obtain and keep effective (a) any and all permits, consents and
approvals of governmental agencies and authorities and (b) any and all filings
or notices under United States Federal and State securities laws, which may be
or become required in connection with the issuance, sale, trading, transfer or
delivery of the Warrant Certificates, the Global Warrant Certificate or the
exercise of the Warrants.
Section
7.06. Persons Having Rights
Under This Agreement. Nothing in this Agreement expressed or implied and
nothing that may be inferred from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the Company, the Warrant Agent, and the Registered Holders any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent,
and their respective successors, and of the Registered Holders.
Section
7.07. Inspection of
Agreement. A copy of this Agreement shall be available at all reasonable
times at the Warrant Agent’s Business Office for inspection by the
Warrantholders, Participants or any person certified by any Participant to be an
indirect participant of the Depositary or any person certified by any
Participant to be a beneficial owner of Warrants, in each case, on behalf of
whom such Participant holds Warrants.
22
Section
7.08.
Headings. The descriptive headings of the several Articles, Sections and
subsections 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
7.09.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same
instrument.
Section
7.11. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements and understandings, both written and oral, among
the parties hereto with respect to the subject matter of this
Agreement.
Section
7.12. Certain
Matters Relating to the S&P 500®
Index.
(a) References
to the S&P 500® Index in
this Agreement and the Warrants are made pursuant to a non-exclusive license
agreement between JPMSI and S&P.
(b) The
copyright relating to the S&P 500® Index,
the intellectual property rights relating to the indications for “Standard &
Poor’s”, “S&P”, “S&P 500” and “500”, and any other related rights,
belong to The XxXxxx-Xxxx Companies, Inc.
(c) S&P
shall be entitled to change the details of the S&P 500® Index
and to suspend the announcement thereof.
(d) The
issuance of the Warrants and other transactions relating to the license
agreement with S&P are being conducted exclusively at the risk of the
Company and JPMSI, and S&P has assumed and will assume no obligation or
responsibility therefor.
Section
7.13. Waiver of Jury
Trial. Each of the Company and the Warrant Agent hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement , the Warrants or the transaction contemplated
hereby.
23
| JPMORGAN CHASE & CO. | |||
|
|
By:
|
/s/ Le Xxx Xxxxx | |
| Name: Le Xxx Xxxxx | |||
| Title: Managing Director | |||
|
THE
BANK OF NEW YORK MELLON,
as
Warrant Agent
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Managing Director | |||
FORM OF
WARRANT CERTIFICATE
FACE
| NO. C-_____________ | CUSIP No.00000X000 |
JPMORGAN
CHASE & CO.
Index
Call Warrants linked to the S&P 500®
Index
Expiring
July 13, 2009
This
Warrant Certificate certifies that _____________, or registered assigns, is the
registered holder of _____________ Index Call Warrants linked to the S&P
500®
Index expiring July 13, 2009 (the “Warrants”) of JPMorgan Chase
& Co. (the “Company”). Each Warrant
entitles the Registered Holder (the “Warrantholder”) to receive,
subject to the conditions set forth herein and in the Warrant Agreement referred
to below, from the Company the Cash Settlement Value of such Warrant on the
Expiration Date (as defined below). Each Warrant will be automatically and
irrevocably exercised on the Expiration Date and the Warrantholder will receive
a payment in cash, if any, equal to the Cash Settlement Value.
The
“Cash Settlement Value”
with respect to each Warrant will be an amount in U.S. Dollars equal to the
greater of (i) $0 and (ii) the notional amount per Warrant multiplied by the
lesser of (A) the Index Return and (B) the Maximum Return. The Cash Settlement
Value will be rounded to the nearest cent, with one-half cent rounded upward.
The change in the Index from the Initial Index Level to the Ending Index Level
(expressed as a percentage of the Initial Index Level) (the “Index Return”) is described by
the following formula:
Ending
Index Level – Initial Index Level
Initial
Index Level
The
“Index” means the
S&P 500® Index
designed, developed, maintained and operated by Standard and Poor’s, a division
of the XxXxxx-Xxxx Companies, Inc (“S&P” or the “Index Sponsor”).
The
“Initial Index Level” is
849.50, as determined in the sole discretion of the Calculation Agent on the
pricing date of April 9, 2009 (the “Pricing
Date”).
A-1
The
“Ending
Index Level” is the Index Closing Level on the Observation
Date.
The
“Maximum Return” is
6.00%.
The
“notional amount” of
each Warrant is $1,000.
A Warrant
will not entitle or require a Warrantholder to purchase or to take delivery from
the Company of any shares of any component stocks of the Index or any Successor
Index (the “Underlying
Stocks”), or any other securities. Following exercise of a Warrant, the
Company will make only a U.S. Dollar cash payment in an amount equal to the Cash
Settlement Value, if any, of such Warrant. The Company is under no obligation
to, nor will it, sell or deliver to any Warrantholder any shares of any of the
Underlying Stocks or any other securities in connection with the exercise of any
Warrants. Warrantholders will not receive any interest on any Cash Settlement
Value, and the Warrants will not entitle the Warrantholders to any of the rights
of holders of any of the Underlying Stocks or any other securities (as defined
on the reverse hereof).
Reference
is hereby made to the further provisions of this Warrant Certificate set forth
on the reverse hereof and such further provisions shall for all purposes have
the same effect as though fully set forth in this place.
This
Warrant Certificate shall not be valid unless countersigned by the Warrant
Agent.
A-2
Dated: _________________
| JPMORGAN CHASE & CO. | |||
|
|
By:
|
||
| Name | |||
| Title | |||
| Attest: | |||
| By | |||
|
Secretary
|
|||
| Countersigned as of the date above written: | |||
|
THE
BANK OF NEW YORK MELLON,
as
Warrant Agent
|
|||
|
By:
|
|
||
| Authorized Officer | |||
A-3
REVERSE
JPMORGAN
CHASE & CO.
The
Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants issued by the Company pursuant to a Warrant Agreement, dated
as of April 15, 2009 (the “Warrant Agreement”), among the
Company, The Bank of New York Mellon, as Warrant Agent (the “Warrant Agent”) and are subject to the
terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions each Warrantholder (as defined on the reverse hereof)
consents by acceptance of this Warrant Certificate and which Warrant Agreement
is hereby incorporated by reference in and made a part of this Warrant
Certificate. A copy of the Warrant Agreement is on file with the Warrant Agent
at The Bank of New York Mellon, 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX 00000
(the “Warrant Agent’s Business
Office”).
The
Warrants are unsecured contractual obligations of the Company and rank pari passu with the Company’s
other unsecured contractual obligations and with the Company’s unsecured and
unsubordinated debt.
Each
Warrant entitles the Warrantholder to receive, upon automatic exercise, the Cash
Settlement Value of such Warrant.
The
Company has appointed X.X. Xxxxxx Securities Inc. (“JPMSI”) to be its Calculation
Agent, (the “Calculation
Agent”), to determine the Initial Index Level, the Ending Index Level,
and the Index Return as provided in the Calculation Agent Agreement dated
January 22, 2009, (the “Calculation Agent Agreement.”). The Calculation
Agent shall act as an independent expert and not as an agent of the
Company, and, unless otherwise provided by the Calculation Agent Agreement, its
calculations and determinations made under the Calculation Agent Agreement and
this Warrant Certificate shall, absent manifest error, be final and binding on
the Company, the Warrant Agent and the Warrantholders. Any such calculations
will be made available to a Warrantholder for inspection at the Warrant Agent’s
Business Office.
If the
Index Sponsor discontinues publication of the Index and the Index Sponsor or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the discontinued
Index (such index being referred to herein as a “Successor Index”), then the
Index Closing Level on the Observation Date or any other relevant date on which
the Index Closing Level is to be determined will be determined by reference to
the level of such Successor Index at the close of trading on the Relevant
Exchange for such Successor Index on such day.
A-4
Upon any selection by the Calculation Agent of a Successor Index,
the Calculation Agent will cause written notice thereof to be promptly furnished
to the Warrant Agent, to the Company and to the Warrantholders.
If the
Index Sponsor discontinues publication of the Index prior to, and such
discontinuation is continuing on, the Observation Date or any other relevant
date on which the Index Closing Level is to be determined, and the Calculation
Agent determines, in its sole discretion, that no Successor Index is available
at such time, or the Calculation Agent has previously selected a Successor Index
and publication of such Successor Index is discontinued prior to, and such
discontinuation is continuing on, the Observation Date or such other relevant
date, then the Calculation Agent will determine the Index Closing Level for such
date. The Index Closing Level will be computed by the Calculation Agent in
accordance with the formula for and method of calculating the Index or Successor
Index, as applicable, last in effect prior to such discontinuation, using the
closing price (or, if trading in the relevant securities has been materially
suspended or materially limited, the Calculation Agent’s good faith estimate of
the closing price that would have prevailed but for such suspension or
limitation) at the close of the principal trading session on such date of each
security most recently composing the Index or Successor Index, as
applicable.
If at any
time the method of calculating the Index or a Successor Index, or the level
thereof, is changed in a material respect, or if the Index or a Successor Index
is in any other way modified so that the Index or such Successor Index does not,
in the opinion of the Calculation Agent, fairly represent the level of the Index
or such Successor Index had such changes or modifications not been made, then
the Calculation Agent will, at the close of business in New York City on each
date on which the Index Closing Level is to be determined, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, may be necessary in order to arrive at a level of a stock index
comparable to the Index or such Successor Index, as the case may be, as if such
changes or modifications had not been made, and the Calculation Agent will
calculate the Index Closing Level with reference to the Index or such Successor
Index, as adjusted. Accordingly, if the method of calculating the Index or a
Successor Index is modified so that the level of the Index or such Successor
Index is a fraction of what it would have been if there had been no such
modification (e.g., due to a split in the Index or such Successor Index), then
the Calculation Agent will adjust its calculation of the Index or such Successor
Index in order to arrive at a level of the Index or such Successor Index as if
there had been no such modification (e.g., as if such split had not
occurred).
Neither
the Company nor the Calculation Agent will have any responsibility for good
faith errors or omissions in calculating or disseminating information regarding
the Index or any Successor Index, or as to adjustments or calculations by the
Calculation Agent (as provided above) in order to arrive at the level of the
Index or any Successor Index.
A-5
The
“Observation Date” for
each Warrant shall be July 8, 2009, subject to postponement as described below.
If the Observation Date is not a Trading Day or if there is a Market Disruption
Event on such day, the Observation Date will be postponed to the immediately
succeeding Trading Day during which no Market Disruption Event shall have
occurred or be continuing. In no event, however, will the Observation Date be
postponed more than ten Business Days following the date originally scheduled to
be the Observation Date. If the tenth Business Day following the date originally
scheduled to be the Observation Date is not a Trading Day, or if there is a
Market Disruption Event on such tenth Business Day, the Calculation Agent will
determine the Index Closing Level for the Observation Date on such tenth
Business Day in accordance with the formula for and method of calculating the
Index Closing Level last in effect prior to the commencement of the Market
Disruption Event (or prior to the non-Trading Day), using the closing price (or,
if trading in the relevant securities has been materially suspended or
materially limited, the Calculation Agent’s good faith estimate of the closing
price that would have prevailed but for such suspension or limitation or
non-Trading Day) on such tenth Business Day of each security most recently
constituting the Index.
The
Company shall make available to the Warrant Agent, no later than 2:00 P.M., New
York City time, on the Expiration Date, same day funds in an amount sufficient
to pay the aggregate Cash Settlement Value of the Warrants. If the Company has
made those funds available to the Warrant Agent by that time, the Warrant Agent
will be responsible for making a payment to the Warrantholder by check or, in
the case of payments of at least $100,000, by wire transfer of immediately
available funds to a U.S. Dollar bank account maintained by such Warrantholder
in the United States (at such Warrantholder’s election and upon proper notice
being given to the Company and the Warrant Agent) against receipt by the Warrant
Agent at the Warrant Agent’s Transfer Office of the Warrant Certificate, prior
to the close of business on such Expiration Date. Such payment shall be in an
amount equal to the aggregate Cash Settlement Value of the
Warrants.
Neither
the Warrant Agent nor the Calculation Agent will be responsible for any losses
resulting from a failure of a brokerage firm to properly exercise Warrants on
behalf of a Warrantholder.
With
respect to the Index or the relevant Successor Index, a “Market Disruption Event”
means:
A-6
|
•
|
a
breakdown or failure in the price and trade reporting systems of any
Relevant Exchange as a result of which the reported trading prices for
equity securities then constituting 20% or more of the level of the Index
(or the Successor Index) during the one hour preceding the close of the
principal trading session on such Relevant Exchange are materially
inaccurate; or
|
|
•
|
a
suspension, absence or material limitation of trading on the primary
exchange or market for trading in futures or options contracts related to
the Index (or the Successor Index) for more than two hours of trading
during, or during the one hour period preceding the close of, the
principal trading session on such exchange or market;
or
|
|
•
|
a
decision to permanently discontinue trading in the relevant futures or
options contracts;
|
in each
case as determined by the Calculation Agent in its sole discretion;
and
|
•
|
a
determination by the Calculation Agent in its sole discretion that any
event described above materially interfered with the Company’s ability or
the ability of any of the Company’s affiliates to adjust or unwind all or
a material portion of any hedge with respect to the
Warrants.
|
For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) exists at any time, if trading in a security
included in the Index (or the Successor Index) is materially suspended or
materially limited at that time, then the relevant percentage contribution of
that security to the level of the Index (or the Successor Index) will be based
on a comparison of:
|
•
|
the
portion of the level of the Index (or the Successor Index) attributable to
that security relative to
|
|
•
|
the
overall level of the Index (or the Successor Index), in each case
immediately before that suspension or
limitation.
|
For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) has occurred with respect to the Index (or the
Successor Index):
A-7
|
•
|
a limitation on the
hours or number of days of trading will not constitute a Market Disruption
Event if it results from an announced change in the
regular business hours of the Relevant Exchange, or the primary exchange
or market for trading in futures or options contracts related to the Index
(or the Successor
Index);
|
|
•
|
limitations
pursuant to the rules of any Relevant Exchange similar to NYSE Rule 80B
(or any applicable rule or regulation enacted or promulgated by any other
self-regulatory organization or any government agency of scope similar to
NYSE Rule 80B as determined by the Calculation Agent) on trading during
significant market fluctuations will constitute a suspension, absence or
material limitation of trading;
|
|
•
|
a
suspension of trading in futures or options contracts on the Index (or the
Successor Index) by the primary exchange or market for trading in such
contracts by reason of
|
|
•
|
a
price change exceeding limits set by such exchange or
market,
|
|
•
|
an
imbalance of orders relating to such contracts,
or
|
|
•
|
a
disparity in bid and ask quotes relating to such
contracts
|
will, in
each such case, constitute a suspension, absence or material limitation of
trading in futures or options contracts related to the Index (or the Successor
Index); and
|
•
|
a
“suspension, absence or material limitation of trading” on any Relevant
Exchange or on the primary exchange or market on which futures or options
contracts related to the Index (or the Successor Index) are traded will
not include any time when such market is itself closed for trading under
ordinary circumstances.
|
“Relevant Exchange” means, with
respect to the Index or the relevant Successor Index, the primary U.S. exchange
or market of trading for any security (or any combination thereof) then included
in the Index or such Successor Index, as applicable.
Prior to
due presentment for registration of transfer, the Company, the Warrant Agent,
and any agent of the Company or the Warrant Agent, may deem and treat the
Registered Holder hereof as the absolute owner of the Warrants evidenced hereby
(notwithstanding any notation of ownership or other writing hereon) for any
purpose whatsoever, and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent, shall be
affected by any notice to the contrary.
A-8
The
Warrant Agent will, in accordance with the Warrant Agreement, from time to time
register the transfer of this Warrant Certificate upon surrender hereof
at the Warrant Agent’s
Transfer Office, accompanied by a written instrument or instruments of transfer
in form satisfactory to the Warrant Agent and the Company duly executed by the
Registered Holder(s) hereof, a duly appointed legal representative thereof or by
its duly authorized attorney. Such signature shall be guaranteed by a bank or
trust company having a correspondent office in The City of New York or by a
broker or dealer which is a member of the Financial Industry Regulatory
Authority or by a member of a national securities exchange. A new Warrant
Certificate shall be issued to the transferee(s) upon any such registration of
transfer, and this Warrant Certificate shall be cancelled by the Warrant
Agent.
The
“Warrant Agent’s Transfer
Office” shall be the office of the Warrant Agent maintained for purposes
of transfer and tender in the Borough of Manhattan, The City of New York or at
the address of any successor Warrant Agent (as provided in the Warrant
Agreement) and which is, on the date of this Agreement, 000 Xxxxxxx Xxxxxx,
Xxxxx 0X, Xxx Xxxx, XX 00000.
As
provided in the Warrant Agreement and subject to certain limitations, this
Warrant Certificate may be exchanged for other Warrant Certificates,
representing a like number of Warrants, upon surrender to the Warrant Agent, at
the Warrant Agent’s Transfer Office, of this Warrant Certificate. The Company
will thereupon execute, and the Warrant Agent will countersign and deliver, one
or more new Warrant Certificates representing such like number of Warrants. Upon
surrender of this Warrant Certificate for exchange, the Warrant Agent shall
cancel this Warrant Certificate.
The
Warrant Agent will act as registrar and transfer agent for the Warrants. The
Warrant Agent will also act as paying agent and may designate additional paying
agents.
No
service charge will be made for any registration of transfer or exchange of this
Warrant Certificate, but the Company may require the payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in relation thereto,
other than exchanges not involving any transfer.
“Business Day” means any day
other than a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to close or a day
on which transactions in U.S. Dollars are not conducted.
“Trading Day” means a day, as
determined by the Calculation Agent, on which trading is generally conducted on
the NYSE, the NYSE Alternext, The NASDAQ Stock Market, the Chicago Mercantile
Exchange Inc., the Chicago Board Options Exchange, Incorporated and in the
over-the-counter market for equity securities in the United States.
A-9
The
Warrant Agreement and the terms of the Warrants are subject to amendment, as
provided in the Warrant Agreement.
Capitalized
terms included herein but not defined herein have the meanings assigned thereto
in the Warrant Agreement.
X-00
XXXXXXX
X-0
FORM OF
GLOBAL WARRANT CERTIFICATE
No. R-
_____________
CUSIP No.
00000X000
Unless
this Global Warrant Certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) (the “Depositary”, which term, as
used herein, includes any successor securities depositary selected by the
Company) to the Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of the
Depositary and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered holder hereof, Cede & Co., has an interest
herein.
JPMORGAN
CHASE & CO.
Global
Warrant Certificate Representing
Index
Call Warrants linked to the S&P 500®
Index
Expiring
July 13, 2009
This
certifies that CEDE & CO., or registered assigns, is the “Registered Holder” of the number of Index
Call Warrants linked to the S&P 500® Index expiring July 13, 2009
(the “Warrants”) of
JPMorgan Chase & Co. (the “Company”) set forth from time
to time on Schedule A hereto. Each Warrant entitles the Registered Holder (the
“Warrantholder”) to
receive, subject to the conditions set forth herein and in the Warrant Agreement
referred to below, from the Company the Cash Settlement Value of such Warrant on
the Expiration Date (as defined below). Each Warrant will be automatically and
irrevocably exercised on the Expiration Date and the Warrantholder will receive
a payment in cash, if any, equal to the Cash Settlement Value.
The
“Cash Settlement Value”
with respect to each Warrant will be an amount in U.S. Dollars equal to the
greater of (i) $0 and (ii) the notional amount per Warrant multiplied by the
lesser of (A) the Index Return and (B) the Maximum Return. The Cash Settlement
Value will be rounded to the nearest cent, with one-half cent rounded upward.
The change in the Index from the Initial Index Level to the Ending Index Level
(expressed as a percentage of the
A-1-1
Ending
Index Level – Initial Index Level
Initial
Index Level
The
“Index” means the
S&P 500® Index
designed, developed, maintained and operated by Standard and Poor’s, a division
of the XxXxxx-Xxxx Companies, Inc (“S&P” or the “Index Sponsor”).
The
“Initial Index Level” is
849.50, as determined in the sole discretion of the Calculation Agent on the
pricing date of April 9, 2009 (the “Pricing Date”).
The
“Ending Index Level” is
the Index Closing Level on the Observation Date.
The
“Index Closing Level” on
any trading day will equal the closing level of the Index or any Successor Index
(as defined below) published following the regular official weekday close of
trading on such Trading Day. In certain circumstances, the “Index Closing Level”
will be based on the alternative calculation of the Index as described below at
the regular official weekday close of the principal trading session of the New
York Stock Exchange (“NYSE”), the NYSE Alternext US
LLC (the “NYSE
Alternext”), The NASDAQ Stock Market or any Relevant Exchange for the
Index or Successor Index, as applicable.
The
“Maximum Return” is
6.00%.
The
“notional amount” of
each Warrant is $1,000.
A Warrant
will not entitle or require a Warrantholder to purchase or to take delivery from
the Company of any shares of any component stocks of the Index or any Successor
Index (the “Underlying
Stocks”), or any other securities. Following exercise of a Warrant, the
Company will make only a U.S. Dollar cash payment in an amount equal to the Cash
Settlement Value, if any, of such Warrant. The Company is under no obligation
to, nor will it, sell or deliver to any Warrantholder any shares of any of the
Underlying Stocks or any other securities in connection with the exercise of any
Warrants. Warrantholders will not receive any interest on any Cash Settlement
Value, and the Warrants will not entitle the Warrantholders to any of the rights
of holders of any of the Underlying Stocks or any other securities. Except as
otherwise provided in the Warrant Agreement, beneficial owners of interests in
this Global Warrant Certificate shall not be entitled to receive definitive
Warrants evidencing the Warrants.
This
Global Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
A-1-2
The
Warrants evidenced by this Global Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of
April 15, 2009 (the “Warrant
Agreement”) among the Company and The Bank of New York Mellon (the “Warrant
Agent”) and are subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Registered Holder of
this Global Warrant Certificate consents, by acceptance of this Global Warrant
Certificate by the Depositary, on its own behalf and on behalf of the beneficial
owners of Warrants and the entities (if any) through which such beneficial
owners hold their beneficial interests in the Warrants, and which Warrant
Agreement is hereby incorporated by reference in and made a part of this Global
Warrant Certificate. A copy of the Warrant Agreement is on file with the Warrant
Agent at The Bank of New York Mellon, 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX
00000 (Warrant
Agent’s Business Office”).
The
Warrants are unsecured contractual obligations of the Company and rank pari passu with the Company’s
other unsecured contractual obligations and with the Company’s unsecured and
unsubordinated debt.
The
Company has appointed X.X. Xxxxxx Securities Inc. (“JPMSI”) to be its Calculation
Agent, (the “Calculation
Agent”), to determine the Initial Index Level, the Ending Index Level,
and the Index Return as provided in the Calculation Agent Agreement dated
January 22, 2009 (the “Calculation Agent Agreement.”). The Calculation
Agent shall act as an independent expert and not as an agent of the
Company, and, unless otherwise provided by the Calculation Agent Agreement, its
calculations and determinations made under the Calculation Agent Agreement and
this Global Warrant Certificate shall, absent manifest error, be final and
binding on the Company, the Warrant Agent and the Warrantholders (on such
holder’s own behalf and on behalf of any Participant or beneficial owner of
Warrants). Any such calculations will be made available to a Warrantholder for
inspection at the Warrant Agent’s Business Office.
If the
Index Sponsor discontinues publication of the Index and the Index Sponsor or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the discontinued
Index (such index being referred to herein as a “Successor Index”), then any
Index Closing Level on the Observation Date or any other relevant date on which
the Index Closing Level is to be determined will be determined by reference to
the level of such Successor Index at the close of trading on the Relevant
Exchange for the Successor Index on such day.
Upon any
selection by the Calculation Agent of a Successor Index, the Calculation Agent
will cause written notice thereof to be promptly furnished to the Warrant Agent,
to the Company and to the holders of the Warrants.
If the
Index Sponsor discontinues publication of the Index prior to, and such
discontinuation is continuing on, the Observation Date or any other
relevant
A-1-3
date on which the Index
Closing Level is to be determined, and the Calculation Agent determines, in its
sole discretion, that no Successor Index is available at such time, or the Calculation Agent has previously selected a
Successor Index and publication of such Successor Index is discontinued prior
to, and such discontinuation is continuing on, the Observation Date or such
other relevant date on which the Index Closing Level is to be determined, then
the Calculation Agent will determine the Index Closing Level for such date. The
Index Closing Level will be computed by the Calculation Agent in accordance with
the formula for and method of calculating the Index or Successor Index, as
applicable, last in effect prior to such discontinuation, using the closing
price (or, if trading in the relevant securities has been materially suspended
or materially limited, the Calculation Agent’s good faith estimate of the
closing price that would have prevailed but for such suspension or limitation)
at the close of the principal trading session on such date of each security most
recently composing the Index or Successor Index, as applicable.
If at any
time the method of calculating the Index or a Successor Index, or the level
thereof, is changed in a material respect, or if the Index or a Successor Index
is in any other way modified so that the Index or such Successor Index does not,
in the opinion of the Calculation Agent, fairly represent the level of the Index
or such Successor Index had such changes or modifications not been made, then
the Calculation Agent will, at the close of business in New York City on each
date on which the Index Closing Level is to be determined, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, may be necessary in order to arrive at a level of a stock index
comparable to the Index or such Successor Index, as the case may be, as if such
changes or modifications had not been made, and the Calculation Agent will
calculate the Index Closing Level with reference to the Index or such Successor
Index, as adjusted. Accordingly, if the method of calculating the Index or a
Successor Index is modified so that the level of the Index or such Successor
Index is a fraction of what it would have been if there had been no such
modification (e.g., due to a split in the Index or such Successor Index), then
the Calculation Agent will adjust its calculation of the Index or such Successor
Index in order to arrive at a level of the Index or such Successor Index as if
there had been no such modification (e.g., as if such split had not
occurred).
Neither
the Company nor the Calculation Agent will have any responsibility for good
faith errors or omissions in calculating or disseminating information regarding
the Index or any Successor Index, or as to adjustments or calculations by the
Calculation Agent (as provided above) in order to arrive at the level of the
Index or any Successor Index.
The
“Expiration Date” for
each Warrant shall be July 13, 2009, subject to adjustment as described below.
If the scheduled Expiration Date is not a Business Day, then the Expiration Date
will be the next succeeding Business Day following such scheduled Expiration
Date. If, due to a Market Disruption Event or otherwise, the Observation Date is
postponed so that it falls less than three
A-1-4
Business
Days prior to the scheduled Expiration Date, the Expiration Date will be the
third Business Day following the Observation Date, as postponed.
The
Company shall make available to the Warrant Agent, no later than 2:00 P.M., New
York City time, on the Expiration Date, same day funds in an amount sufficient
to pay the aggregate Cash Settlement Value of the Warrants. If the Company has
made those funds available to the Warrant Agent by that time, the Warrant Agent
will be responsible for making a payment to the Depositary, against receipt of
the Global Warrant Certificate, prior to the close of business on such
Expiration Date. Such payment shall be in an amount equal to the aggregate Cash
Settlement Value of the Warrants. The Depositary will be responsible for
disbursing such payment to each appropriate Participant and that Participant
will be responsible for disbursing such payments to the beneficial owners of
Warrants it represents and to each brokerage firm for which it acts as agent.
Each such brokerage firm will be responsible for disbursing payments to the
beneficial owners of Warrants it represents.
Neither
the Warrant Agent nor the Calculation Agent will be responsible for any losses
resulting from a failure of a brokerage firm, or any Participant, to properly
exercise Warrants on behalf of a Warrantholder.
With
respect to the Index or the relevant Successor Index, a “Market Disruption Event”
means:
|
•
|
a
suspension, absence or material limitation of trading of equity securities
then constituting 20% or more of the level of the Index (or the Successor
Index) on the Relevant Exchanges for such securities for more than two
hours of trading during, or during the one hour period
|
A-1-5
| preceding the close of, the principal trading session on such Relevant Exchange; or | |
|
•
|
|
•
|
a
suspension, absence or material limitation of trading on the primary
exchange or market for trading in futures or options contracts related to
the Index (or the Successor Index) for more than two hours of trading
during, or during the one hour period preceding the close of, the
principal trading session on such exchange or market;
or
|
|
•
|
a
decision to permanently discontinue trading in the relevant futures or
options contracts;
|
in each
case as determined by the Calculation Agent in its sole discretion;
and
|
•
|
a
determination by the Calculation Agent in its sole discretion that any
event described above materially interfered with the Company’s ability or
the ability of any of the Company’s affiliates to adjust or unwind all or
a material portion of any hedge with respect to the
Warrants.
|
For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) exists at any time, if trading in a security
included in the Index (or the Successor Index) is materially suspended or
materially limited at that time, then the relevant percentage contribution of
that security to the level of the Index (or the Successor Index) will be based
on a comparison of:
|
•
|
the
portion of the level of the Index (or the Successor Index) attributable to
that security relative to
|
|
•
|
the
overall level of the Index (or the Successor Index), in each case
immediately before that suspension or
limitation.
|
For
purposes of determining whether a Market Disruption Event with respect to the
Index (or the Successor Index) has occurred with respect to the Index (or the
Successor Index):
|
•
|
a
limitation on the hours or number of days of trading will not constitute a
Market Disruption Event if it results from an announced change in the
regular business hours of the Relevant Exchange, or the primary exchange
or market for trading in futures or options contracts related to the Index
(or the Successor Index);
|
A-1-6
|
•
|
limitations
pursuant to the rules of any Relevant Exchange similar to NYSE Rule 80B
(or any applicable rule or regulation enacted or promulgated by any other
self-regulatory organization or
any
|
| government agency of scope similar to NYSE Rule 80B as determined by the Calculation Agent) on trading during significant market fluctuations will constitute a suspension, absence or material limitation of trading; | |
|
•
|
a
suspension of trading in futures or options contracts on the Index (or the
Successor Index) by the primary exchange or market for trading in such
contracts by reason of
|
|
•
|
a
price change exceeding limits set by such exchange or
market,
|
|
•
|
an
imbalance of orders relating to such contracts,
or
|
|
•
|
a
disparity in bid and ask quotes relating to such
contracts
|
will, in
each such case, constitute a suspension, absence or material limitation of
trading in futures or options contracts related to the Index (or the Successor
Index); and
|
•
|
a
“suspension, absence or material limitation of trading” on any Relevant
Exchange or on the primary exchange or market on which futures or options
contracts related to the Index (or the Successor Index) are traded will
not include any time when such market is itself closed for trading under
ordinary circumstances.
|
“Relevant Exchange” means, with
respect to the Index or the relevant Successor Index, the primary U.S. exchange
or market of trading for any security (or any combination thereof) then included
in the Index or such Successor Index, as applicable.
Prior to
due presentment for registration of transfer, the Company, the Warrant Agent,
and any agent of the Company or the Warrant Agent, may deem and treat the
Registered Holder as the absolute owner of the Warrants evidenced hereby
(notwithstanding any notation of ownership or other writing hereon) for any
purpose whatsoever, and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent, shall be
affected by any notice to the contrary.
The
Warrant Agent will, in accordance with the Warrant Agreement, from time to time
register the transfer of this Global Warrant Certificate in its records (which
may be maintained electronically) subject to such reasonable regulations as the
Company or the Warrant Agent may prescribe, only to the Depositary, to another
nominee of the Depositary, to a successor Depositary or to a nominee of a
A-1-7
successor Depositary, upon
surrender of such Global Warrant Certificate, duly endorsed, or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent and the Company, duly executed by the Registered Holder thereof or by the duly appointed legal
representative thereof, or by its duly authorized attorney. Such signature shall
be guaranteed by a bank or trust company with a correspondent office in The City
of New York or by a broker or a dealer, which is a member of the Financial
Industry Regulatory Authority or by a member of a national securities exchange.
Upon any such registration of transfer, a new Global Warrant Certificate shall
be issued to the transferee and the surrendered Global Warrant Certificate shall
be cancelled by the Warrant Agent.
The
Global Warrant Certificate may be transferred as provided above when surrendered
to the Warrant Agent’s Transfer Office, or at the location of any successor
Warrant Agent for another Global Warrant Certificate of like tenor and
representing a like number of unexercised Warrants. The “Warrant Agent’s Transfer Office” shall be the
office of the Warrant Agent maintained for purposes of transfer and
tender in the Borough of Manhattan, The City of New York or at the address of
any successor Warrant Agent (as provided in the Warrant Agreement) and which is,
on the date of this Agreement, 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX
00000.
The
Warrant Agent will act as registrar and transfer agent for the Warrants. The
Warrant Agent will also act as paying agent and may designate additional paying
agents.
No
service charge will be made for any registration of transfer or exchange of this
Warrant Certificate, but the Company may require the payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in relation thereto,
other than exchanges not involving any transfer.
“Business Day” means any day
other than a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to close or a day
on which transactions in U.S. Dollars are not conducted.
“Trading Day” means a day, as
determined by the Calculation Agent, on which trading is generally conducted on
the NYSE, the NYSE Alternext, The NASDAQ Stock Market, the Chicago Mercantile
Exchange Inc., the Chicago Board Options Exchange, Incorporated and in the
over-the-counter market for equity securities in the United States.
The
Warrant Agreement and the terms of the Warrants are subject to amendment, as
provided in the Warrant Agreement.
A-1-8
This
Global Warrant Certificate shall be governed by, and interpreted in accordance
with, the laws of the State of New York, excluding choice of law
provisions.
Capitalized
terms included herein but not defined herein have the meanings assigned thereto
in the Warrant Agreement.
Dated: ______________
| JPMORGAN CHASE & CO. | |||
|
|
By:
|
||
| Name | |||
| Title | |||
| Attest: | |||
| By: | |||
| Name: | |||
| Title: | |||
|
|
|||
| Countersigned as of the date above written: | |||
|
THE
BANK OF NEW YORK MELLON,
as
Warrant Agent
|
|||
|
By:
|
|
||
| Authorized Officer | |||
A-1-10
Schedule
A
|
Number
of Warrants Represented by
|
|
|
Date
|
this
Global Warrant Certificate
|
A-1-11
THE
BANK OF NEW YORK MELLON FEE SCHEDULE
The
Issuer shall be responsible for the payment to The Bank of New York Mellon, as
Warrant Agent, the fees, expenses and charges as set forth in this Fee
Schedule.
ACCEPTANCE
FEE — $2,500 per occurrence
This one
time charge of $2,500 covers the review and execution of all documents in
relation to the establishment of the Warrant program.
ANNUAL
ADMINISTRATIVE FEE — $650 per CUSIP
The
Annual Administrative Fee covers the day-to-day maintenance of the appointment
and performance of duties established in the agreements, including the issuance
and payment of securities/warrants and Warrant Agent services related to account
administration and warrantholder services. Assumes all warrants issued are
book-entry. Fees will be assessed on all outstanding CUSIPs outstanding at the
end of each year and will be billed on an annual basis. This fee shall not be
prorated.
OTHER
SERVICES/ACTIVITY CHARGES WILL BE CHARGED
| Audit Confirmation | $200 per confirmation (if applicable) |
| Wires (other than debt service) | $25.00 per wire |
| Early Warrant Exercise | $200.00 per exercise (if applicable) |
| DWAC Transfers | $10.00 per transfer |
B-1
