EXHIBIT 4.13
OLD KENT FINANCIAL CORPORATION
and
_____________________,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ____________, ____
TABLE OF CONTENTS
PAGE
ARTICLE I - ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . .2
SECTION 1.01. Issuance of Warrants . . . . . . . . . . . . . . . . .2
SECTION 1.02. Execution and Delivery of Warrant Certificates . . . .2
SECTION 1.03. Issuance of Warrant Certificates . . . . . . . . . . .4
ARTICLE II - WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS. . . . . . .4
SECTION 2.01. Warrant Price. . . . . . . . . . . . . . . . . . . . .4
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . . . .5
SECTION 2.03. Exercise of Warrants . . . . . . . . . . . . . . . . .5
ARTICLE III - OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES. . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.01. No Rights as Warrant Securityholders Conferred by
Warrants or Warrant Certificates . . . . . . . . . . .6
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights . . .7
ARTICLE IV - EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES . . . . . . . .7
SECTION 4.01. Exchange and Transfer of Warrant Certificates. . . . .7
SECTION 4.02. Treatment of Holders of Warrant Certificates. . . . .8
SECTION 4.03. Cancellation of Warrant Certificates . . . . . . . . .8
ARTICLE V - CONCERNING THE WARRANT AGENT . . . . . . . . . . . . . . . . .9
SECTION 5.01. Warrant Agent. . . . . . . . . . . . . . . . . . . . .9
SECTION 5.02. Conditions of Warrant Agent's Obligations. . . . . . .9
SECTION 5.03. Resignation and Appointment of Successor. . . . . . 10
SECTION 5.04. Payment of Taxes . . . . . . . . . . . . . . . . . . 12
ARTICLE VI - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Notices and Demands to the Company and Warrant Agent 12
SECTION 6.03. Addresses. . . . . . . . . . . . . . . . . . . . . . 12
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SECTION 6.04. Applicable Law; Construction . . . . . . . . . . . . 12
SECTION 6.05. Delivery of Prospectus.. . . . . . . . . . . . . . . 13
SECTION 6.06. Obtaining of Governmental Approvals. . . . . . . . . 13
SECTION 6.07. Persons Having Rights under Warrant Agreement. . . . 13
SECTION 6.08. Headings . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.09. Counterparts . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.10. Inspection of Agreement. . . . . . . . . . . . . . . 13
[SECTION 6.11. Adjustment of Number of [Preferred Shares]
[Shares of Common Stock]; Notices. . . . . . . . . . 14
SECTION 6.12. Fractional Shares. . . . . . . . . . . . . . . . . . 19
EXHIBIT A Form of Warrant Certificate
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of _____________, ____ between Old
Kent Financial Corporation, a Michigan corporation (the "Company"), and
_____________________, a ______________ organized and existing under the
laws of _________________, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time,
either jointly or separately, certain of its (i) senior debt securities
(the "Senior Debt Securities"), and/or (ii) subordinated debt securities
(the "Subordinated Debt Securities" and, together with the Senior Debt
Securities, the "Debt Securities"), and/or (iii) preferred stock, no par
value per share (the "Preferred Shares"), and/or (iv) depositary shares
that represent fractional interest in the Preferred Shares (the "Depositary
Shares"), and/or (v) common stock, par value $1.00 per share ("Common
Stock"), and/or (vi) warrants (the "Warrants") to purchase Debt Securities,
Preferred Shares or Common Stock in one or more offerings on terms
determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No.
________), including a prospectus, relating to the securities described
above and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"); and
[IF SENIOR DEBT SECURITIES - WHEREAS, the Company has entered into an
indenture dated as of ____________, ____ (the "Senior Indenture"), with
_______________________, as trustee (such trustee and any successor, the
"Senior Trustee"), providing for the issuance from time to time of its
Senior Debt Securities to be issued in one or more series as provided in
the Senior Indenture; and]
[IF SUBORDINATED DEBT SECURITIES - WHEREAS, the Company has entered
into an indenture dated as of ____________, _____ (the "Subordinated
Indenture"), with ___________________, as trustee (such trustee and any
successor, the "Subordinated Trustee"), providing for the issuance from
time to time of its Subordinated Debt Securities to be issued in one or
more series as provided in the Subordinated Indenture; and]
[IF PREFERRED SHARES - WHEREAS, the Company has established a series
of Preferred Shares in accordance with the terms of the Certificate of
Designation relating to that series (a "Certificate of Designation"); and]
[IF WARRANTS ATTACHED - WHEREAS, the Company proposes to sell the
[Senior Debt Securities] [Subordinated Debt Securities] [Preferred Shares]
[Common Stock] now being offered (the "Offered Securities") with warrant
certificates evidencing one or more Warrants representing the right to
purchase the [Senior Debt Securities] [Subordinated Debt Securities]
[Preferred Shares] [Common Stock] purchasable through exercise of the
Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
[IF WARRANTS ALONE - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more Warrants representing the right to
purchase the [Senior Debt Securities] [Subordinated Debt
Securities][Preferred Shares][Common Stock] purchasable through exercise of
Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates,
and in this Warrant Agreement wishes to set forth, among other things, the
form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [IF OFFERED SECURITIES WITH
WARRANTS ATTACHED] - Warrants shall be [initially] issued in connection
with the issuance of the Offered Securities [but shall be separately
transferable on and after _____, ____ (the "Detachable Date")][and shall
not be separately transferable]. Warrant Certificates shall be [initially]
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence ________ Warrants for each [share of
Offered Securities] [$________ principal amount of Offered Securities or
its equivalent in a foreign currency or composite currency] included in
such unit.] [IF WARRANTS ALONE - Upon issuance each Warrant Certificate
shall evidence one or more Warrants.] Each Warrant evidenced by a Warrant
Certificate shall represent the right, subject to the provisions contained
herein and therein, to purchase ________ shares of Warrant Securities.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. (a)
Each Warrant Certificate, whenever issued, shall be in [bearer]
[registered] form substantially in the form set forth in Exhibit A, shall
be dated as of its issue date and may have such letters, numbers or other
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marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Warrant Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Warrant Certificates may be listed or
authorized for trading, or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, the
Chief Executive Officer, President, Chief Financial Officer or Treasurer,
and attested by its Secretary or any of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant
Certificates.
(b) No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned
has been duly issued under this Agreement.
(c) In case any officer of the Company who shall have signed any of
the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates nevertheless may be countersigned and delivered as though the
person who signed such Warrant Certificates had not ceased to be such
officer of the Company, and any Warrant Certificate may be signed on behalf
of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was
not such officer.
(d) Pending the preparation of definitive Warrant Certificates, the
Company may execute, and upon the order of the Company the Warrant Agent
shall authenticate and deliver, temporary Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced
substantially of the tenor of the definitive Warrant Certificates in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Warrant
Certificates may determine, as evidenced by their execution of such Warrant
Certificates.
(e) If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the
temporary Warrant Certificates shall be exchangeable for definitive Warrant
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Certificates upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or _________], without charge
to the holder. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants.
Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Warrant Agreement as
definitive Warrant Certificates.
[(f) IF BEARER WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used in this Agreement shall mean [IF OFFERED SECURITIES
WITH WARRANTS THAT ARE NOT IMMEDIATELY DETACHABLE - , prior to the
Detachable Date, the [bearer] [registered owner] of the Offered Security to
which such Warrant Certificate was initially attached, and after such
Detachable Date] the bearer of such Warrant Certificate.]
[(g) IF REGISTERED WARRANTS - The term "holder" or "holder of a
Warrant Certificate" as used herein shall mean any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose [IF OFFERED SECURITIES
WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - or upon the register
of the Offered Securities prior to the Detachable Date.] The Company will,
or will cause the registrar of the Offered Securities to, make available at
all times to the Warrant Agent such information as to holders of the
Offered Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date.]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase [___ shares of Warrant Securities] [an
aggregate principal amount not exceeding $250,000 of Warrant Securities
(except as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing
the right to purchase [____ shares of Warrant Securities] [up to
$___________ aggregate principal amount of Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates [IF REGISTERED WARRANTS - or
in connection with their transfer], as hereinafter provided.
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ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. [On__________, ____] the exercise price
of each Warrant is [$]___________. [During the period from __________,
____ through and including _________, ____, the exercise price of each
Warrant will be [$]________ plus [accreted original issue discount]
[accrued interest] from ______, ____. On _______, ____ the exercise price
of each Warrant will be [$]_________. During the period from ____________,
____ through and including __________, ____, the exercise price of each
Warrant will be [$]_______________ plus [accreted original issue discount]
[accrued interest] from ___________, ____; [in each case the [original
issue discount] [accrued interest] will be [accreted] [computed] at a __%
annual rate, computed on a [semiannual] [annual] basis using a 360-day year
consisting of twelve 30-day months]. Such purchase price of Warrant
Securities (the "Warrant Price") may be denominated in U.S. dollars and may
be determined in reference to an index. [The original issue discount for
each $1,000 principal amount of Warrant Securities is [$_____________.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a
Warrant Certificate may be exercised in whole at any time, as specified
herein, on or after [the date thereof] [_____________, ____] and at or
before the close of business on _____________, ____ (the "Expiration
Date"). Each Warrant not exercised at or before the close of business on
the Expiration Date shall become void, and all rights of the holder of the
Warrant Certificate evidencing such Warrant and under this Warrant
Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified
in Section 2.02, any whole number of Warrants, if the Warrant Certificate
evidencing the same shall have been countersigned by the Warrant Agent, may
be exercised by providing certain information set forth on the reverse side
of the Warrant Certificate and by paying in full, [in cash or by certified
check or official bank check or by bank wire transfer, in each case,] [by
bank wire transfer] in immediately available funds, the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust office,
____________________ [or at ________________________,] provided that such
exercise is subject to receipt within five Business Days (as defined in
Section 6.11(f) hereof) of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date
on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the Company by
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telephone at the end of each day on which a [payment] [wire transfer] for
the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephonic advice
to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Senior Trustee under the Senior
Indenture] [and the Subordinated Trustee under the Subordinated Indenture]
of (i) the number of Warrants exercised in accordance with the terms and
conditions of this Warrant Agreement and the Warrant Certificates, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) the delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iv) such other information as the Company [or the
Senior Trustee] [or the Subordinated Trustee] shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue[, pursuant to the [Senior Indenture]
[Subordinated Indenture]], in authorized denominations to or upon the order
of the holder of the Warrant Certificate evidencing such Warrant or
Warrants,] the Warrant Security or Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as
may be directed by such holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver to or upon the order of such holder, a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities; and in the event
that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Securities until such tax or other charge
shall have been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDERS CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of
a holder of the Warrant Securities, including the right [to vote or] to
receive payments of [dividends or distributions of any kind] [principal of
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(and premium, if any,) or interest, if any, on the Warrant Securities or to
enforce any of the covenants in the [Senior Indenture] [Subordinated
Indenture].
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Company and the Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Warrant Certificate and of
indemnity reasonably satisfactory to them and, in the case of mutilation,
upon surrender thereof to the Warrant Agent for cancellation, then, in the
absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a BONA FIDE purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants. Upon the issuance
of any new Warrant Certificate under this Section, the Company may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Warrant Agreement equally and proportionately with any and
all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Warrant Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent, [the
[Senior] [Subordinated] Trustee,] the holder of any Warrant Securities or
the holder of any other Warrant Certificate, may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in
respect of, his right to exercise the Warrant or Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and
in this Warrant Agreement.
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ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH WARRANTS THAT ARE IMMEDIATELY DETACHABLE OR
WARRANTS ALONE - Upon] [IF OFFERED SECURITIES WITH WARRANTS THAT ARE NOT
IMMEDIATELY DETACHABLE - Prior to the Detachable Date, a Warrant
Certificate may be exchanged or transferred only together with the Offered
Security to which the Warrant Certificate was initially attached, and only
for the purposes of effecting or in conjunction with an exchange or
transfer of such Offered Security. On or prior to the Detachable Date,
each transfer of the Offered Security on the register of the Offered
Securities shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of
the Warrant Agent or [__________], Warrant Certificates may be exchanged
for other Warrant Certificates in denominations evidencing Warrants, each
Warrant entitling the holder thereof to purchase [_____ shares of Warrant
Securities] [$_____________ principal amount of Warrant Securities or its
equivalent in a foreign currency or composite currency] at the Warrant
Price [IF REGISTERED WARRANTS - or may be transferred in whole or in part]
[IF BEARER OR REGISTERED WARRANTS - provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered.] [IF REGISTERED WARRANTS - The Warrant Agent
shall keep, at its corporate trust office [or at __________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or at
______] for transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall
be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or transfer. Whenever any Warrant Certificates are so
surrendered for exchange or transfer an authorized officer of the Warrant
Agent shall countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or transfer that will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Warrant
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
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SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE NOT IMMEDIATELY DETACHABLE
- Subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER
WARRANTS THAT ARE IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - Each]
Warrant Certificate shall be transferable by delivery and shall be deemed
negotiable and the bearer of each Warrant Certificate may be treated by the
Company, the Warrant Agent and all other persons dealing with such bearer
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any
notice to the contrary notwithstanding.] [IF REGISTERED WARRANTS ALONE OR
REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Every holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that until the Warrant Certificate is transferred on the books
of the Warrant Agent [or the register of the Offered Securities prior to
the Detachable Date], the Company and the Warrant Agent may treat the
registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange, transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly cancelled by the Warrant Agent and
shall not be reissued and, except as expressly permitted by this Warrant
Agreement, no Warrant Certificate shall be issued hereunder in exchange or
in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints
___________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and ____________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the Company
may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions
hereof.
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SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the holders from time to
time of the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the
Warrant Agent promptly the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
such Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim or liability in the premises.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrants, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or relationship of
agency or trust with any of the owners or holders of the Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificates, 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.
(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not
the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as [Senior] [Subordinated]
Trustee under the [Senior] [Subordinated] Indenture.]
(e) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Warrant Agreement or of the
Warrants.
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(f) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur
any liability with respect to the validity of any of the Warrants.
(g) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in
the Warrant Certificates contained (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(h) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
under this Agreement that may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation will become effective; PROVIDED that
such date shall not be less than three months after the date on which such
notice is given unless the Company agrees to accept less notice. The
Warrant Agent hereunder may be removed at any time by the filing with it of
an instrument in writing signed by or on behalf of the Company and
specifying such removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Warrant Agent (which shall
be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligations of the
Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
-11-
(c) In case at any time the Warrant Agent shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall file a
petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable Federal or
State bankruptcy law or similar law or make an assignment for the benefit
of its creditors or consent to the appointment of a receiver or custodian
of all or any substantial part of its property or assets, 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 or assets shall be appointed, or if an order of any court shall be
entered for relief against it under the provisions of Title 11 of the
United States Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or
of its property or affairs, for the purpose of rehabilitation, conservation
or liquidation, it shall be disqualified from serving as Warrant Agent and
a successor Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent so disqualified shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without further act, deed or conveyance, shall become vested with
all 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, 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 assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Warrant Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 5.04. PAYMENT OF TAXES. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of
America, this Warrant Agreement or the original issuance of the Warrant
Certificates may be subject.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Warrant Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein, or
making any other provisions with respect to matters or questions arising
under this Warrant Agreement as the Company and the Warrant Agent may deem
necessary or desirable; PROVIDED that such action shall not adversely
affect the interests of the holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice of demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Warrant Agreement shall be addressed
to____________________, Attention: ____________, and any communications
from the Warrant Agent to the Company with respect to this Warrant
Agreement shall be addressed to Old Kent Financial Corporation, 000 Xxxx
Xxxxxx X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000, Attention: Secretary (or such
other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.04. APPLICABLE LAW; CONSTRUCTION. The validity,
interpretation and performance of this Warrant Agreement and each Warrant
Certificate issued hereunder and of the respective terms and provisions
thereof shall be governed by the laws of the State of [________________].
Whenever used herein, the term "including" shall mean "including but not
limited to," unless expressly provided otherwise.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and
the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant
Securities issued upon such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including maintenance of the effectiveness of a
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registration statement in respect of the Warrants and Warrant Securities
under the 1933 Act), that may be or become requisite in connection with the
issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Warrant 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 holders of the Warrant Certificates
any right, remedy or claim under or by reason of this Warrant Agreement or
of any covenant, condition, stipulation, promise or agreement hereof. All
covenants, conditions, stipulations, promises and agreements in this
Warrant Agreement contained shall be for the sole and exclusive benefit of
the Company and the Warrant Agent and their successors and of the holders
of the Warrant Certificates.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Warrant Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 6.09. COUNTERPARTS. This Warrant 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 6.10. INSPECTION OF AGREEMENT. A copy of this Warrant
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to
submit his or her Warrant Certificate for inspection by it.
[SECTION 6.11. ADJUSTMENT OF NUMBER OF [PREFERRED SHARES] [SHARES OF
COMMON STOCK]; NOTICES. The number of [Preferred Shares] [shares of Common
Stock] purchasable upon the exercise of each Warrant (the "Exercise Rate")
is subject to adjustment from time to time as provided in this Section.
(a) DIVIDENDS OR DISTRIBUTIONS IN [PREFERRED SHARES] [SHARES OF
COMMON STOCK]. In case the Company shall pay or make a dividend or other
distribution on [any class or series of Preferred Shares for which Warrants
may be exercised] [its Common Stock] in [such Preferred Shares] [shares of
its Common Stock], the Exercise Rate in effect at the opening of business
on the day following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be increased
by dividing such Exercise Rate by a fraction of which the numerator shall
-14-
be the number of [such Preferred Shares] [shares of such Common Stock]
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. [For the purposes of this paragraph (a), the number of
[Preferred Shares] [shares of Common Stock] at any time outstanding shall
not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on [Preferred Shares] [shares
of Common Stock] held in the treasury of the Company.]
(b) RIGHTS OR WARRANTS. In case the Company shall issue rights or
warrants to all holders of [a class or series of its Preferred Shares for
which Warrants may be exercised] [shares of its Common Stock] entitling
them to subscribe for or purchase [such Preferred Shares] [shares of Common
Stock] at a price per share less than the current market price per share
(determined as provided in paragraph (f) of this Section) of [such
Preferred Shares] [Common Stock] on the date fixed for the determination of
shareholders entitled to receive such rights or warrants, the Exercise Rate
in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Exercise Rate by
a fraction of which the numerator shall be the number of [such Preferred
Shares] [shares of Common Stock] outstanding at the close of business on
the date fixed for such determination plus the number of [such Preferred
Shares] [shares of Common Stock] which the aggregate of the offering price
of the total number of [such Preferred Shares] [shares of Common Stock] so
offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of [such Preferred Shares]
[shares of Common Stock] outstanding at the close of business on the date
fixed for such determination plus the number of [such Preferred Shares]
[shares of Common Stock] so offered for subscription or purchase, such
increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. [For the purposes
of this paragraph (b), the number of [Preferred Shares] [shares of Common
Stock] at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of [Preferred Shares]
[shares of Common Stock]. The Company will not issue any rights or
warrants in respect of [Preferred Shares] [shares of Common Stock] held in
the treasury of the Company.]
(c) SUBDIVISION OR COMBINATION. In case outstanding shares of [a
class or series of its Preferred Shares for which Warrants are exercisable]
[Common Stock] shall be subdivided into a greater number of shares of [such
Preferred Shares] [Common Stock], the Exercise Rate in effect at the
opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and,
-15-
conversely, in case outstanding shares of [a class or series of its
Preferred Shares for which Warrants are exercisable] [Common Stock] shall
each be combined into a smaller number of shares of [such Preferred Shares]
[Common Stock], the Exercise Rate in effect at the opening of business on
the day following the day upon which such combination becomes effective
shall be proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination
becomes effective.
(d) DIVIDEND OR DISTRIBUTION OF ASSETS. In case the Company shall,
by dividend or otherwise, distribute to all holders of [a class or series
of its Preferred Shares for which Warrants are exercisable] [shares of its
Common Stock] evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph
(b) of this Section, any dividend or distribution paid in cash and any
dividend or distribution referred to in paragraph (a) of this Section), the
Exercise Rate shall be adjusted so that the same shall equal the price
determined by dividing the Exercise Rate in effect immediately prior to the
close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Shares] [Common Stock] on
the date fixed for such determination less the then fair-market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Warrant Agent
and any other Registrar) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of [such Preferred
Shares] [Common Stock] and the denominator shall be such current market
price per share of [such Preferred Shares] [Common Stock], such adjustment
to become effective immediately prior to the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such distribution.
(e) RECLASSIFICATION. The reclassification of [a class or series of
its Preferred Shares for which Warrants are exercisable] [the Company's
Common Stock] into securities other than such [Preferred Shares] [Common
Stock] (other than any reclassification upon a consolidation or merger to
which paragraph (l) of this Section applies) shall be deemed to involve
(i) a distribution of such securities other than such [Preferred Shares]
[Common Stock] to all holders of [such Preferred Shares] [Common Stock]
(and the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of shareholders entitled to receive such
distribution" and "the date fixed for such determination" within the
meaning of paragraph (d) of this Section), and (ii) a subdivision or
combination, as the case may be, of the number of shares of [such Preferred
Shares] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Shares]
-16-
[Common Stock] outstanding immediately thereafter (and the effective date
of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (c) of this Section).
(f) CURRENT MARKET PRICE. For the purpose of any computation under
paragraphs (b) and (d) of this Section, the current market price per share
of [Preferred Shares] [Common Stock] on any date shall be deemed to be the
average of the daily closing prices for the 15 consecutive Business Days
selected by the Company commencing not less than 20 nor more than 30
Business Days before the day in question. The closing price for each day
shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York Stock
Exchange or, if such [Preferred Shares are] [Common Stock is] not listed or
admitted to trading on such Exchange, on the principal national securities
exchange on which such [Preferred Shares are] [Common Stock is] listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if such [Preferred
Shares are] [Common Stock is] not listed or admitted to trading on any
national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time
to time by the Company for the purpose. In the event that no such market
trading exists, the current market price will be determined by three
independent nationally reorganized investment banking firms selected by the
Company in such manner as the Board of Directors deems appropriate.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions where Warrants may be
surrendered for exercise or in Grand Rapids, Michigan, are authorized or
obligated by law or executive order to close.
(g) ADJUSTMENTS FOR TAX PURPOSES. The Company may make such
adjustments in the Exercise Rate, in addition to those required by
paragraphs (a), (b), (c) and (d) of this Section, as it considers to be
advisable in order that any event treated for Federal income tax purposes
as a dividend of stock or stock rights shall not be taxable to the
recipients.
(h) NO ADJUSTMENT BELOW PAR VALUE. Notwithstanding the provisions of
this Section, the Exercise Rate shall not be increased such that the price
paid per share would be less than the par value thereof as a result of any
adjustment made hereunder unless, under applicable law then in effect,
Warrants may be exercised, at such lower Exercise Rate, for legally issued,
fully paid and nonassessable [Preferred Shares] [shares of Common Stock].
-17-
(i) PERMITTED DISTRIBUTIONS. The granting of the right to purchase
shares of [Preferred Shares] [Common Stock], pursuant to (i) any dividend
or interest reinvestment plan or [Preferred Shares] [Common Stock] purchase
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and/or the investment of periodic optional
payments, and (ii) any stock option plans and/or employee benefit or
similar plans, shall not be deemed to constitute an issue of rights or
warrants by the Company.
(j) NO ADJUSTMENTS NECESSARY. No adjustment in the Exercise Rate
shall be required unless such adjustment would require an increase or
decrease of at least one percent in such Exercise Rate, PROVIDED, HOWEVER,
that any adjustment that by reason of this paragraph (j) is not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be.
(k) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted as
herein provided, the Company shall promptly (i) compute the adjusted
Exercise Rate in accordance herewith and prepare a certificate signed by an
officer of the Company setting forth the adjusted Exercise Rate and showing
in reasonable detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Warrant Agent and any
other Registrar and (ii) cause a notice stating that such adjustment has
been effected and the adjusted Exercise Rate to be mailed to the holders of
Warrants at their last addresses as they shall appear on the Warrant
Register.
(l) SUCCESSOR COMPANY. In case of any reclassification or change of
outstanding shares of [the class or series of Preferred Shares issuable
upon exercise of the Warrants] [Common Stock] (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or in case of any
merger or consolidation of the Company with one or more other corporations
(other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification or
change of outstanding shares of [the class or series of Preferred Shares
issuable upon exercise of the Warrants] [Common Stock]), or in case of the
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the holder of Warrants of each
series then outstanding shall have the right to exercise such Warrant for
the kind and amount of shares of capital stock or other securities and
property, including cash, receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
shares of [such class or series of Preferred Shares] [Common Stock] for
which such Warrant might have been exercised immediately prior to such
reclassification, change consolidation, merger, sale or conveyance. In any
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such case, the Company, or such successor or purchasing corporation, as the
case may be, shall execute and deliver to the Warrant Agent a supplemental
Warrant Agreement containing provisions to the effect set forth above and
providing further for adjustments that shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) COMPANY TO RESERVE CAPITAL SECURITIES. The Company shall at all
times reserve and keep available out of the aggregate of its authorized but
unissued shares for the purpose of effecting the exercise of the Warrants,
such full number of its duly authorized shares of [Preferred Shares]
[Common Stock] as shall from time to time be sufficient to effect the
exercise of all outstanding Warrants.
If any shares of [Preferred Shares] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require
registration with or approval of any governmental authority under any
Federal or State law before such shares may be validly delivered upon
exercise, then the Company covenants that it will in good faith and as
expeditiously as reasonably practicable endeavor to secure registration or
approval, as the case may be.
The Company covenants that all shares of [Preferred Shares] [Common
Stock] which may be delivered upon exercise of Warrants shall upon delivery
be fully paid and nonassessable by the Company, subject to Michigan
Compiled Laws Section 450.1551, and, except for taxes in connection with
the exercise of the Warrants, free from all taxes, liens and charges with
respect to the issue or delivery thereof.
(n) COMPANY TO GIVE NOTICE OF CERTAIN EVENTS. In the event:
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of [Preferred Shares issuable
upon exercise of the Warrants] [Common Stock] otherwise than in cash
charged against consolidated net earnings or retained earnings of the
Company and its consolidated subsidiaries or in [such Preferred
Shares] [shares of Common Stock]; or
(2) that the Company shall offer for subscription or purchase,
PRO RATA, to the holders of [Preferred Shares issuable upon exercise
of the Warrants] [Common Stock] any additional shares of stock of any
class or any securities exercisable for or exchangeable for stock of
any class; or
(3) of any reclassification or change of outstanding shares of
[the class or series of Preferred Shares issuable upon the exercise of
the Warrants] [Common Stock] (other than a change in par value, or
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from par value to no par value, or from no par combination), or of
any merger of consolidation of the Company with, or merger of the
Company into, another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and
which does not result in reclassification or change of outstanding
shares of [Preferred Shares issuable upon exercise of the Warrants]
[Common Stock]), or of any sale or conveyance to another corporation
of the property of the Company as an entirety or substantially as an
entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least
twenty days (or ten days in any case specified in clause (1) or (2) above)
prior to (i) the record date fixed with respect to any of the events
specified in (1) and (2) above and (ii) the effective date of any of the
events specified in (3) above; and shall mail promptly after providing such
notice to the Warrant Agent or such other Registrar a copy of such notice
to the holders thereof at their last addresses as they shall appear upon
the Warrant Register. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
(o) COMPANY DETERMINATION FINAL. Any determination that the Company
or the Board of Directors must make pursuant to this Section is conclusive.
(p) WARRANT AGENT'S ADJUSTMENT DISCLAIMER. The Warrant Agent has no
duty to determine when an adjustment under this Section should be made, how
it should be made or what it should be. The Warrant Agent has no duty to
determine whether a supplemental warrant agreement under paragraph (l) need
be entered into or whether any provisions of any supplemental warrant
agreement are correct. The Warrant Agent shall not be accountable for and
makes no representation as to the validity or value of any securities or
assets issued upon exercise of Warrants. The Warrant Agent shall not be
responsible for the Company's failure to comply with this Section.
(q) ADJUSTMENTS AND WARRANT CERTIFICATES. Irrespective of any
adjustments in the number or kind of shares purchasable upon the exercise
of the Warrants, Warrant Certificates theretofore or thereafter issued may
continue to express the same number and kind of shares per Warrant as are
stated on the Warrant Certificates initially issuable pursuant to this
Agreement.
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(r) SUBSEQUENT EVENT. After an adjustment to the Exercise Rate under
this Section, any subsequent event requiring an adjustment under this
Section shall cause an adjustment to the Exercise Rate as so adjusted.
SECTION 6.12. FRACTIONAL SHARES. The Company shall not be required
to deliver fractions of shares of [Preferred Shares] [Common Stock] upon
exercises of Warrants. If more than one Warrant shall be surrendered for
exercise at one time by the same holder, the number of full shares which
shall be deliverable upon exercise thereof shall be computed on the basis
of the aggregate of the Warrants so surrendered instead of any fractional
share of [Preferred Shares] [Common Stock] that would otherwise be issuable
upon exercise of any Warrant or Warrants (or specified portions thereof).
The Company shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the market price per share of
[Preferred Shares] [Common Stock] (as determined in accordance with Section
6.11(f) or in any other manner prescribed by the Board of Directors) at the
close of business on the last Business Day prior to the Date of Exercise.]
[The remainder of this page intentionally blank.]
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IN WITNESS WHEREOF, Old Kent Financial Corporation has caused this
Warrant Agreement to be signed by one of its duly authorized officers and
the same to be attested by its Secretary or one of its Assistant
Secretaries; and ___________________ has caused this Warrant Agreement to
be signed by one of its duly authorized officers and the same to be
attested by its Secretary or one of its Assistant Secretaries, all as of
the day and year first written above.
OLD KENT FINANCIAL CORPORATION
By
Attest:
_________________________
[Warrant Agent]
By
Attest:
________________________
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EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants that transferred or exchanged
are not immediately unless attached to a
detachable:
exercisable: [Title of Offered
Securities].]
[Form of Legend if Prior to ________ this
Warrants are not Warrant cannot be
immediately exercisable: exercised in whole or in part.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
OLD KENT FINANCIAL CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN GRAND RAPIDS, MICHIGAN ON
___________, ____.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants,
each Warrant entitling such [bearer] [owner] to purchase, at any time
[after the close of business on ___________, ____ and] [on or before the
close of business on ____________, ____], [$]__________ [principal amount]
[shares] of [Title of Warrant Securities] (the "Warrant Securities") of Old
Kent Financial Corporation (the "Company"), issued and to be issued [under
the Indenture (as defined below)] [by the Company], on the following basis:
[on __________, ____,] the exercise price of each Warrant is
[$_______________, [during the period from _________, ____, through and
including ___________, ____, the exercise price of each Warrant will be
[$]___________ plus [accreted original issue discount] [accrued interest]
from __________, ____, on ______________, ____, the exercise price of each
Warrant will be [$]__________, during the period from __________, ____,
through and including _____________, ____, the exercise price of each
Warrant will be [$]________ plus [accreted original issue discount]
[accrued interest] from __________, ____, [in each case, the [original
issue discount] [accrued interest] will be accreted at a _ % annual rate,
computed on a [semiannual] [annual] basis, using a 360-day year consisting
of twelve 30-day months] (the "Warrant Price")]. [The original issue
discount for each [$]_________ principal amount of Warrant Securities is
[$]__________]. The [bearer] [owner] may exercise the Warrants evidenced
hereby by providing certain information set forth on the back of this
Warrant Certificate and by paying in full, in lawful money of _______, [in
cash or by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] in immediately available funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent] or its successor as warrant agent (the
"Warrant Agent"), currently at the address specified on the back of this
Warrant Certificate [or __________,] and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in
[denominations of [$]___________ and any integral multiples thereof] [any
number of whole shares]. Upon any exercise of fewer than all of the
Warrants evidenced by this Warrant Certificate, there shall be issued to
the [registered owner] [bearer] hereof a new Warrant Certificate evidencing
the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to
the terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions the [registered owner] [bearer] of this Warrant
Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent [and at
_________________].
[The Warrant Securities to be issued ___________, ____ and delivered
upon the exercise of the Warrants evidenced by this Warrant Certificate
will be issued [by the Company pursuant to the Certificate of Designation
applicable to such Warrant Securities] [under and in accordance with a
[Senior] [Subordinated] Indenture dated as of ___________, ____ (the
"Indenture"), between the Company and _____________________, as trustee
(such trustee, and any successor to such trustee to be herein called the
[Senior] [Subordinated] "Trustee") and will be subject to the terms and
provisions contained in the Indenture. Copies of the Indenture, including
the form of the Warrant Securities, are on file at the corporate trust
office of the Trustee [and at ________________].]
-2-
[IF OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE NOT IMMEDIATELY
DETACHABLE - Prior to ________, ____ this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After
such date, this Warrant Certificate, and all rights hereunder, may be
transferred by delivery and the Company and the Warrant Agent may treat the
bearer hereof as the owner for all purposes.]
[IF OFFERED SECURITIES WITH BEARER WARRANTS THAT ARE IMMEDIATELY
DETACHABLE OR BEARER WARRANTS ALONE - This Warrant Certificate, and all
rights hereunder, may be transferred by delivery and the Company and the
Warrant Agent may treat the bearer hereof as the owner for all purposes.
[IF OFFERED SECURITIES WITH REGISTERED WARRANTS THAT ARE NOT
IMMEDIATELY DETACHABLE - Prior to __________, ____ this Warrant Certificate
may be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After
such date, this [IF OFFERED SECURITIES WITH REGISTERED WARRANTS THAT ARE
IMMEDIATELY DETACHABLE OR REGISTERED WARRANTS ALONE - This] Warrant
Certificate may be transferred when surrendered at the corporate trust
office of the Warrant Agent [or ____________] by the registered owner or
his assigns, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS THAT ARE NOT IMMEDIATELY
DETACHABLE - Except as provided in the immediately preceding paragraph,
after] [IF OFFERED SECURITIES WITH WARRANTS THAT ARE IMMEDIATELY DETACHABLE
OR WARRANTS ALONE - After] countersignature by the Warrant Agent and prior
to the expiration of this Warrant Certificate, this Warrant Certificate may
be exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner]
[bearer] hereof to any of the rights of a registered owner of the Warrant
Securities, including, without limitation, the right [to vote or] to
receive payments of [dividends or distributions of any kind] [principal of
(and premium, if any) or interest, if any, on the Warrant Securities or to
enforce any of the covenants of the Indenture.]
-3-
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________, ____
OLD KENT FINANCIAL CORPORATION
By
Attest:
[Secretary] [Assistant Secretary]
Countersigned:
As Warrant Agent
By
Authorized Signatory
-4-
