UNIT AGREEMENT
Between
NORTH ATLANTIC TRADING ACQUISITION COMPANY, INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK
Dated as of June 25, 1997
UNIT AGREEMENT dated as of June 25, 1997 between North
Atlantic Trading Acquisition Company, Inc., a Delaware corporation (the
"Company"), and United States Trust Company of New York, a bank and trust
company organized and existing under the laws of the State of New York.
WHEREAS, the Company proposes to issue 1,360,000 shares of its
12% Senior PIK Preferred Stock (the "Senior PIK Preferred Stock") and warrants
(the "Warrants") to purchase 44,440 shares of its Common Stock, par value $.01
per share (the "Common Stock"), in the form of 1,360 units (the "Units"), with
each Unit consisting of 1,000 shares of Senior PIK Preferred Stock and one
Warrant to purchase 32.6765 shares of Common Stock;
WHEREAS, the Company and United States Trust Company of New
York, in its capacity as warrant agent for the Warrants (the "Warrant Agent")
and transfer agent for the Senior PIK Preferred Stock (the "Transfer Agent")
desire to appoint United States Trust Company of New York to act as their agent
for the purpose of issuing certificates ("Unit Certificates") representing the
Units and registration of transfers and exchanges thereof. United States Trust
Company of New York in such capacity is referred to herein as the "Unit Agent";
WHEREAS, the Units will be exchangeable for the Senior PIK
Preferred Stock and Warrants represented thereby upon the earliest to occur of:
(i) the tenth (10) business day after the date of original issuance of the Units
or (ii) such earlier date as may be determined by NatWest Capital Markets
Limited with the consent of the Company. The date on which an event listed in
the preceding sentence occurs is referred to as the "Separability Date";
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NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Unit Agent. (a) The Company hereby
appoints the Unit Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Unit Agent hereby
accepts such appointment.
(b) The Transfer Agent and the Company hereby appoint the Unit
Agent as a co-transfer agent for the Senior PIK Preferred Stock for so long as
the Senior PIK Preferred Stock is represented by the Units. In its capacity as a
cotransfer agent, the Unit Agent shall have the rights and obligations provided
for a transfer agent in the Certificate of Designation governing the Senior PIK
Preferred Stock.
(c) The Warrant Agent and the Company hereby appoint the Unit
Agent as an agent of the Warrant Agent for the purposes of maintaining a
register of the registered owners of and the registration of transfers and
exchanges of the Warrants represented by the Units.
SECTION 2. Unit Certificates. The Units will initially be
issued either in global form (the "Global Units"), or in registered form as
definitive Unit certificates ("Physical Units") substantially in the form of
Exhibit A attached hereto. Any certificates evidencing the Global Units to be
delivered pursuant to this Agreement shall be substantially in the form set
forth in Exhibit A attached hereto, and shall bear the legend set forth in
Exhibit B attached hereto. Such Global Units shall represent such of the
outstanding Units as shall be specified therein and each shall provide that it
shall represent the aggregate Units from time to time endorsed thereon and that
the aggregate amounts of outstanding Units represented thereby may from time to
time be reduced or increased, as appropriate. Any endorsement of a Global Unit
to reflect the amount of any increase or decrease in the amount of outstanding
Units represented thereby shall be made by the Unit Agent and Depository (as
defined blow) in accordance with instructions given by the holder thereof. The
Depository Trust Company shall act as the Depository with respect to the Global
Units until a successor shall be appointed by the Company and the Unit Agent.
Upon written request, a Unit holder may receive from the Depository and Unit
Agent Physical Units as set forth in Section 5 below.
SECTION 3. Execution of Unit Certificates. Each Unit
Certificate shall be signed on behalf of the Company by its Chairman of the
Board or its President, Chief Executive Officer, Treasurer, Chief Financial
officer or a Vice
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President and by its Secretary or an Assistant Secretary. Each such signature
upon the Unit Certificates may be in the form of a facsimile signature of the
present or any future Chairman of the Board, President, Vice President, Chief
Financial Officer, Treasurer, Secretary or Assistant Secretary and may be
imprinted or otherwise reproduced on the Unit Certificates and for that purpose
the Company may adopt and use the facsimile signature of any person who shall
have been Chairman of the Board, President, Chief Executive Officer, Vice
President, Treasurer, Chief Financial Officer, Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Unit Certificates shall be
countersigned and delivered or disposed of he shall have ceased to hold such
office.
In case any officer of the Company who shall have signed any
of the Unit Certificates shall cease to be such officer before the Unit
Certificates so signed shall have been countersigned by the Unit Agent, or
disposed of by the Company, such Unit Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Unit Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Unit Certificate, shall be a proper officer of the Company to sign such
Unit Certificate, although at the date of the execution of this Unit Agreement
any such person was not such officer.
Unit Certificates shall be dated the date of counter-signature
by the Unit Agent.
SECTION 4. Registration and Countersignature. The Unit
Agent, on behalf of the Company, shall number and register the Unit Certificates
in a register as they are issued by the Company.
Unit Certificates shall be manually countersigned by the Unit
Agent and shall not be valid for any purpose unless so countersigned. The Unit
Agent shall, upon written instructions of the Chairman of the Board, the
President, Chief Executive Officer, a Vice President, Chief Financial Officer,
Treasurer, the Secretary or an Assistant Secretary of the Company, initially
countersign and deliver not more than 1,360 Units and shall thereafter
countersign and deliver Units as otherwise provided in this Agreement.
The Company and the Unit Agent may deem and treat the
registered holder(s) of the Unit Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone) for all purposes, and neither the Company nor the Unit Agent shall be
affected by any notice to the contrary.
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SECTION 5. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Units. Prior to
the Separability Date, when Physical Units are presented to the Unit Agent with
a request:
(i) to register the transfer of the Physical Units; or
(ii) to exchange such Physical Units for an equal number
of Physical Units of other authorized denominations,
The Unit Agent shall register the transfer or make the exchange as requested if
the requirements under this Agreement as set forth in this Section 5 for such
transactions are met; provided, however, that the Physical Units presented or
surrendered for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Unit Agent, duly executed by the holder thereof or by
his attorney, duly authorized in writing; and
(y) in the case of Units the offer and sale of which
have not been registered under the Securities Act and
are presented for transfer or exchange prior to (x)
the date which is two years after the date of
original issue and (y) such later date, if any, as
may be required by any subsequent change in
applicable law (the "Resale Restriction Separation
Date"), such Units shall be accompanied by the
following additional information and documents, as
applicable, however, it being understood that the
Unit Agent need not determine which clause (A)
through (D) below is applicable:
(A) if such Unit is being delivered to the Unit
Agent by a holder or registration in the
name of such holder, without transfer, a
certification from such holder to that
effect (in substantially the form of Exhibit
C hereto); or
(B) if such Unit is being transferred to a
qualified institutional buyer (as defined in
Rule 144A under the Securities Act) in
accordance with Rule 144A under the
Securities Act or pursuant to an exemption
for
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registration in accordance with Rule 144 or
Regulation S under the Securities Act or
pursuant to an effective registration
statement under the Securities Act, a
certification to that effect (in
substantially the form of Exhibit C hereto);
or
(C) if such Unit is being transferred to an
institutional "accredited investor" within
the meaning of subparagraph (a)(1), (a)(2),
(a)(3) or (a)(7) of Rule 501 under the
Securities Act, delivery of a Certificate of
Transfer in the form of Exhibit D hereto and
an opinion of counsel and/or other
information satisfactory to the Company to
the effect that such transfer is in
compliance with the Securities Act; or
(D) if such Unit is being transferred in
reliance on another exemption from the
registration requirements of the Securities
Act, a certification to that effect (in
substantially the form of Exhibit C hereto)
and an opinion of counsel reasonably
acceptable to Company to the effect that
such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of Physical Unit for a Beneficial
Interest in a Global Unit. A Physical Unit may not be exchanged for a beneficial
interest in a Global Unit except upon satisfaction of the requirements set forth
below. Upon receipt by the Unit Agent of a Physical Unit, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Unit Agent, together with:
(i) certification, substantially in the form of Exhibit C
hereto, that such Physical Unit is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act)
in accordance with Rule 144A under the Securities Act, or delivery of a
Certificate of transfer in the form of Exhibit D hereto if such
Physical Unit is being transferred to an accredited investor within the
meaning of subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Securities Act; and
(ii) written instructions directing the Unit Agent to
make, or to direct the Depositary to make, and endorsement on the
Global Unit to reflect
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an increase in the aggregate amount of the Units represented by the
Global Unit,
then the Unit Agent shall cancel such Physical Unit and cause, or direct the
Depositary to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Unit Agent, the number of Units
represented by the Global Unit to be increased accordingly. If no Global Unit is
then outstanding, the Company shall issue and the Unit Agent shall authenticate
a new Global Unit in the appropriate amount.
(c) Transfer and Exchange of Global Units. The transfer and
exchange of Global Units or beneficial interests therein shall be effected
through the Depositary, in accordance with the Unit Agreement (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor.
(d) Transfer of a Beneficial Interest in a Global Unit for a
Physical unit.
(i) Prior to the Separation Date, any person having a
beneficial interest in a Global Unit may upon request exchange such
beneficial interest for a Physical Unit. Upon receipt by the Unit Agent
of written instructions or such other form of instructions as is
customary for the Depositary from the Depositary or its nominee on
behalf of any person having a beneficial interest in a Global Unit and
upon receipt by the Unit Agent of a written order or such other form of
instructions as is customary for the Depositary or the person
designated by the Depositary as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange prior to the Resale Restriction Separation Date,
the following additional information and documents, however, it being
understood that the unit Agent need not determine which clause (A)
through (D) below is applicable:
(A) if such beneficial interest is being
transferred to the person designated by the
Depositary as being the beneficial owner, a
certification from such person to that
effect (in substantially the form of Exhibit
C hereto); or
(B) if such beneficial interest is being
transferred to a qualified institutional
buyer (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A
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under the Securities Act or pursuant to an
exemption from registration in accordance
with Rule 144 or Regulation S under the
Securities Act or pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from the
transferee or transferor (in substantially
the form of Exhibit C hereto); or
(C) if such beneficial interest is being
transferred to an institutional "accredited
investor" within the meaning of subparagraph
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Securities act, delivery of a
Certificate of Transfer in the form of
Exhibit D hereto and an opinion of counsel
and/or other information satisfactory to the
Company to the effect that such transfer is
in compliance with the Securities Act, or
(D) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act, a certification to that
effect from the transferee or transferor (in
substantially the form of Exhibit C hereto)
and an opinion of counsel from the
transferee or transferor reasonably
acceptable to the Company to the effect that
such transfer is in compliance with the
Securities Act,
then the Unit Agent will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Unit Agent the aggregate
amount of the Global Unit to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate (as defined in Section 5(f) below), the Unit Agent will
authenticate and deliver to the transferee a Physical Unit.
(ii) Physical Units issued in exchange for a beneficial
interest in a Global Unit pursuant to this Section 5(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the unit Agent in writing.
The Unit Agent shall deliver such Physical Units to the persons in
whose names such Units are so registered.
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(e) Restrictions on Transfer and Exchange of Global Units.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 5), a Global Unit may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or any such
nominee of such Depositary.
(f) Authentication of Physical Units in Absence of
Depositary. If at any time:
(i) the Depositary for the Units notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the
Global Unit and a successor Depositary for the Global Unit is not
appointed by Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Unit
Agent in writing that it elects to cause the issuance of Physical Units
in place of the Global Unit under this Unit Agreement,
then the Company will execute, and the Unit Agent, upon receipt of an officers'
certificate signed by two officers of the Company (one of whom must be the
principal executive officer, principal financial officer or principal accounting
officer) (an "Officer's Certificate") requesting the authentication and delivery
of Physical Units, will authenticate and deliver Physical Units, in an aggregate
number equal to the aggregate number of Units represented by the Global Unit, in
exchange for such Global Unit.
(g) Legends.
(i) Except as permitted by the following paragraph (iii),
and unless specified in an Officer's Certificate delivered to the
Unit Agent defined, each Unit Certificate evidencing the Global Units
(and all Units issued in exchange therefor or substitution thereof)
shall bear a legend substantially to the following effect:
THIS SECURITY IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
UNIT AGREEMENT,
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AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE SECURITYHOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE UNIT AGENT A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
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RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE UNIT AGENT), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND; PROVIDED THAT AN INITIAL INVESTOR THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR PURCHASING AS DESCRIBED IN CLAUSE (1)(B) ABOVE SHALL NOT BE
PERMITTED TO TRANSFER THIS SECURITY TO AN INSTITUTIONAL ACCREDITED INVESTOR IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE UNIT
AGENT. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR
PURCHASING PURSUANT TO CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE UNIT AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "UNITED
STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
(ii) Upon any sale or transfer of a Unit pursuant to Rule 144
under the Securities Act or an effective registration statement under
the Securities Act:
(A) in the case of any Unit that is a Physical
Unit, the Unit Agent shall permit the holder
thereof to exchange such Unit for a Physical
Unit that does not bear the first two
paragraphs of the legend set forth above and
rescind any related restriction on the
transfer of such Unit; and
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(B) any such Unit represented by a Global Unit
shall not be subject to the provisions set
forth in (i) above (such sales or transfers
being subject only to the provisions of
Section 5(c) hereof); provided, however,
that with respect to any request for an
exchange of a Unit that is represented by a
Global Unit for a Physical Unit that does
not bear the first two paragraphs of the
legend set forth above, which request is
made in reliance upon Rule 144 under the
Securities Act, the holder thereof shall
certify in writing to the Unit Agent that
such request is being made pursuant to Rule
144 under the Securities Act (such
certification to be substantially in the
form of Exhibit C hereto).
(h) Cancellation and/or Adjustment of a Global Unit. At such
time as all beneficial interest in a Global Unit have either been exchanged for
Physical Units, exchanged, redeemed, repurchased or cancelled, such Global Unit
shall be returned to or retained and cancelled by the Unit Agent. At any time
prior to such cancellation, if any beneficial interest in a Global Unit is
exchanged for Physical Units, redeemed, repurchased or cancelled, the number of
units represented by such Global Unit shall be reduced and an endorsement shall
be made on such Global Unit, by the Unit Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
Physical Units.
(i) Prior to the Separation Date, to permit registrations of
transfers and exchanges, Company shall deliver to the Unit Agent, upon
execution of this Agreement, and from time to time thereafter,
sufficient inventory of executed Physical Units and Global Units.
(ii) All Physical Units and Global Units issued upon any
registration, transfer or exchange of Physical Units or Global Units
shall be the valid obligations of Company, entitled to the same
benefits under this Unit Agreement as the Physical Units or Global
Units surrendered upon the registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of
any Unit, the Unit Agent and the Company may deem and treat the person
in whose name any Unit is registered as the absolute owner of such
Unit, and
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neither the Unit Agent nor the Company shall be affected by notice to
the contrary.
(j) The Unit Agent shall be under no duty to monitor
compliance with any federal, state or other securities laws.
SECTION 6. Separation of the Senior PIK Preferred Stock and
Warrants. After the Separability Date, the Senior PIK Preferred Stock and the
Warrants represented by the Units shall be separately transferable. Upon
presentation after the Separability Date of any Unit Certificate for exchange
for Senior PIK Preferred Stock and Warrants or for registration of transfer or
otherwise, (i) the Unit Agent shall notify the Transfer Agent and the Warrant
Agent of the number of Units so presented, the registered owner thereof, such
owner's registered address, the nature of any legends or restrictive
endorsements set forth on such Unit Certificate and any other information
provided by the holder thereof in connection therewith, (ii) the Transfer Agent,
if the requirements of the Certificate of Designation with respect to the Senior
PIK Preferred Stock for such transaction and any applicable legend are met,
shall promptly register, authenticate and deliver a new Senior PIK Preferred
Stock Certificate equal in number of shares of Senior PIK Preferred Stock
represented by such Unit Certificate in accordance with the direction of such
holder and (iii) the Warrant Agent, if its requirements for such transactions
are met, shall promptly countersign, register and deliver a new Warrant
Certificate for the number of Warrants previously represented by such Unit
Certificate in accordance with the directions of such holder. The Warrant Agent
and the Transfer Agent will notify the Unit Agent of any additional requirements
in connection with a particular transfer or exchange.
Following the Separability Date, no Unit Certificates shall be
issued upon transfer or exchange of Unit Certificates, or otherwise.
SECTION 7. Rights of Unit Holders. The registered owner of a
Unit Certificate shall have all the rights and privileges of a registered owner
of the number of shares of Senior PIK Preferred Stock represented thereby and
the number of Warrants represented thereby and shall be treated as the
registered owner thereof for all purposes. The Company agrees that it shall be
bound by all provisions of the Certificate of Designation governing the Senior
PIK Preferred Stock, the Senior PIK Preferred Stock, the Warrants, the Warrant
Agreement and the Common Stock Registration Rights and Stockholders Agreement
dated as of June 25, 1997 and that the Senior PIK Preferred Stock and Warrants
represented by each Unit Certificate shall be deemed valid and obligatory
obligations of the Company.
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SECTION 8. Unit Agent. The Unit Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Units, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Unit
Certificates shall be taken as statements of the Company, and the Unit Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Unit Agent or action taken or to be taken by it. The Unit Agent
assumes no responsibility with respect to the distribution of the Unit
Certificates except as herein otherwise provided.
(b) The Unit Agent shall not be responsible for and shall
incur no liability to the Company or any holder of the Units for any failure of
the Company to comply with any of the covenants in this Agreement or in the Unit
Certificates to be complied with by the Company.
(c) The Unit Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Unit Agent shall
incur no liability or responsibility to the Company or to any holder of any Unit
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel
provided, that the foregoing clause shall not apply if the Unit Agent is found
to have acted with willful misconduct or gross negligence.
(d) The Unit Agent shall incur no liability or responsibility
to the Company or to any holder of any Unit Certificate for any action taken in
reliance on any unit Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties provided, that the foregoing clause shall not apply if
the Unit Agent is found to have acted with willful misconduct or gross
negligence.
(e) The Company agrees to pay to the Unit Agent reasonable
compensation for all services rendered by the Unit Agent in connection with this
Agreement, to reimburse the Unit Agent for all expenses, taxes and governmental
charges and other charges of any kind and nature incurred by the Unit Agent in
the connection with this Agreement and to indemnify the Unit Agent and its
agents, employees, directors, officers and affiliates and save it and them
harmless against any and all liabilities, losses and expenses including without
limitation judgments, costs and counsel fees and actual expenses, for anything
done or omitted by the Unit
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Agent in connection with this Agreement except as a result of the Unit Agent's
gross negligence or willful misconduct.
(f) The Unit Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action unless the
Company or one or more registered holders of Unit Certificates shall furnish the
Unit Agent with security and indemnity for any costs and expenses which may be
incurred acceptable to the Unit Agent. This provision shall not affect the power
of the Unit Agent to take such action as it may consider proper, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Units my be enforced by the Unit Agent without the
possession of any of the Unit Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Unit Agent shall be brought in its name as Unit
Agent and any recovery of judgment shall be for the ratable benefit of the
registered holders of the Units, as their respective rights or interests may
appear.
(g) The Unit Agent, and any stockholder, director, officer or
employee of it (the "Related Parties"), may buy, sell or deal in any of the
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Unit Agent
under this Agreement. Nothing herein shall preclude the Unit Agent or such
Related Parties from acting in any other capacity for the Company or for any
other legal entity.
(h) The Unit Agent shall act hereunder solely as agent for the
Company, the Transfer Agent and the Warrant Agent, and its duties shall be
determined solely by the provisions hereof. The Unit Agent shall not be liable
for anything which it may do or refrain from doing in connection with this
Agreement except for its own gross negligence or bad faith or willful
misconduct.
(i) Before the Unit Agent acts or refrains from acting with
respect to any matter contemplated by this Unit Agreement, it may require:
(1) an officers' certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Unit Agreement relating to the proposed action have been
complied with; and
(2) an opinion of counsel for the Company stating
that, in the opinion of such counsel, all such conditions precedent
have been complied with.
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Each officers' certificate or opinion of counsel with respect
to compliance with a condition or covenant provided for in this Unit Agreement
shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that in the opinion of such person,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been complied with.
The Unit Agent shall not be liable for any action it takes or
omits to take in good faith in reliance on any such certificate or opinion.
(j) In the absence of bad faith on its part, the Unit Agent
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Unit Agent and conforming to the requirements of this Unit Agreement. However,
the Unit Agent shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Unit Agreement.
(k) The Unit Agent may rely and shall be fully protected in
relying upon any document believed by it to be genuine and to have been signed
or presented by the proper person. The Unit Agent need not investigate any fact
or matter stated in the document.
(l) The Unit Agent may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
SECTION 9. Notices to Company and Unit Agent, Transfer Agent
and Warrant Agent. Any notice or demand authorized by this Agreement to be given
or made to or on the Company shall be sufficiently given or made when and if
deposited in the mail, first class or registered, postage paid, addressed
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If to the Company:
North Atlantic Trading Acquisition Company, Inc.
000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Unit Agent, Warrant Agent or the Transfer Agent:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
The parties hereto by notice to the other parties may
designate additional or different addresses for subsequent communications or
notice.
Any notice to be mailed to a holder of Units shall be mailed
to him or her at the address that appears on the register of Units maintained by
the Unit Agent. Copies of any such communication shall also be mailed to the
Unit Agent, Transfer Agent and Warrant Agent. The Unit Agent shall furnish the
Company, the Transfer Agent or the Warrant Agent promptly when requested with a
list of registered holders of Units for the purpose of mailing any notice or
communication to the holders of the Senior PIK Preferred Stock or Warrants and
at such other times as may be reasonably requested.
SECTION 10. Change of Unit Agent. The Unit Agent may resign
and be discharged from its duties under this Agreement by giving to the Company
30 days' notice in writing. The Unit Agent may be removed by like notice to the
Unit Agent from the Company. If the Unit Agent shall resign or be removed or
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shall otherwise become incapable of acting, the Company shall appoint a
successor to the Unit Agent. If the Company shall fail to make such appointment
within a period of 30 days after such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated Unit
Agent or by any holder of the Units (who shall with such notice submit his Unit
for inspection by the Company), then any such holder may apply to any court of
competent jurisdiction for the appointment of a successor to the Unit Agent.
Pending appointment of a successor to the Unit Agent, either by the Company or
by such court, the duties of the Unit Agent shall be carried out by the Company.
Any successor Unit Agent, whether appointed by the Company or such a court,
shall be a bank or trust company in good standing, incorporated under the laws
of the United States of America or any State thereof or the District of Columbia
and having at the time of its appointment as Unit Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor Unit Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Unit Agent without further act or deed; but the
former Unit Agent shall deliver and transfer to the successor Unit Agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for such purpose. Failure to file
any notice provided for in this Section 10, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Unit Agent or the appointment of the successor Unit Agent, as the case may be.
In the event of such resignation or removal, the Company or the successor Unit
Agent shall mail by first class mail, postage prepaid, to each holder of the
Units, written notice of such removal or resignation and the name and address of
such successor Unit Agent.
SECTION 11. Supplements and Amendments. The Company, the
Transfer Agent, the Warrant Agent and the Unit Agent may from time to time
supplement or amend this Agreement without the approval of any holders of Unit
Certificates in order to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company, the Transfer Agent, the Warrant
Agent and the Unit Agent may deem necessary or desirable and which shall not in
any way adversely affect the interests of the holders of Unit Certificates. Any
amendment or supplement to this Agreement that has a material adverse effect on
the interests of the Unit holders shall require the written consent of
registered holders of a majority of the then outstanding Units.
SECTION 12. Successors. All covenants and provisions of this
Agreement by or for the benefit of the Company, the Transfer Agent, the Warrant
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Agent or the Unit Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION 13. Governing Law. THIS AGREEMENT AND EACH UNIT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAW
RULES THEREOF.
SECTION 14. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company, the Transfer Agent, the Warrant Agent, the Unit Agent and the
registered holders of the Unit Certificates any legal or equitable right, remedy
or claim under this Agreement, but this Agreement shall be for the sole and
exclusive benefit of the Company, the Transfer Agent, the Warrant Agent, the
Unit Agent and the registered holders of the Unit Certificates.
SECTION 15. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
NORTH ATLANTIC TRADING
ACQUISITION COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President and CEO
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Transfer Agent,
Warrant Agent and Unit Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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