Exhibit 4.10
FINGERHUT COMPANIES, INC.
Form of Preferred Stock Warrant Agreement
THIS WARRANT AGREEMENT dated as of __________ between Fingerhut
Companies, Inc., a Minnesota corporation (hereinafter called the "Company,")
and ____________________ as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF WARRANTS ARE SOLD
WITH OTHER SECURITIES -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right
to purchase [title of Preferred Stock or Depositary Shares 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 in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
Section 1.01. ISSUANCE OF WARRANTS. [IF WARRANTS ALONE --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[IF OFFERED SECURITIES AND WARRANTS -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after ________________ (the "Detachable Date")]
[and shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
one Warrant Security. [IF OFFERED SECURITIES AND WARRANTS -- Warrant
Certificates shall be initially issued in units with the Offered Securities
and each Warrant Certificate included in such a unit shall evidence
Warrants for each [________ principal amount] [__________ shares] of Offered
Securities included in such unit.]
Section 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in
Exhibit A hereto, shall be dated _______________________ and may have such
letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to
be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of the
Company by the Chairman of the Board, the President or a Vice President of
the Company and by the Treasurer or one of the Assistant Treasurers or the
Secretary or one of the Assistant Secretaries of the Company under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the Warrant
Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the
date of the execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [IF OFFERED SECURITIES AND WARRANTS ARE NOT
IMMEDIATELY DETACHABLE -- or upon the register of the Offered Securities prior
to the Detachable Date. Prior to the Detachable Date, the Company will, or
will cause the Registrar of the Offered Securities to, make available at all
times to the Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant Agent's
records up to date].
Section 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
_________ 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
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Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing Warrants representing the right to purchase up to _________
Warrant Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such 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 or in connection with
their transfer, as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
Section 2.01. WARRANT PRICE. During the period from
__________________, through and including ________________, the exercise price
of each Warrant will be . During the period from ____________________,
through and including _______________, the exercise price of each Warrant will
be _________. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". No adjustment shall be made for any dividends
on any Warrant Securities issuable upon exercise of any Warrant.
Section 2.02. DURATION OF WARRANTS. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [___________________] and at or before 3:30 p.m., New York City time,
on ________________ or such later date as the Company may designate, by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent (the
"Expiration Date"). Each Warrant not exercised at or before 3:30 p.m., New
York City time, on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease.
Section 2.03. EXERCISE OF WARRANTS. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] the Warrant Price for each Warrant exercised to the Warrant Agent at
its corporate trust office [or at _____________], provided that such exercise
is subject to receipt within five business days 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
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Warrant Agent shall deposit all funds received by it in payment of the
Warrant Price in an account of the Company maintained with it and shall
advise the Company by 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
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company of (i) the number of Warrants exercised,
(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) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company shall
reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the 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. 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, a new Warrant Certificate evidencing the number of
such 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 Security 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.
(e) Prior to the issuance of any Warrants there shall have
been reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrant Certificates.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED
BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
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Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of
any new Warrant Certificate under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, stolen or destroyed Warrant Certificate shall
represent an additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
Section 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE
RIGHTS. Notwithstanding any of the provisions of this Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent, the
holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder's own behalf and for such holder's own
benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect
of, such holder's right to exercise the Warrants evidenced by such holder's
Warrant Certificate in the manner provided in such holder's Warrant
Certificate and in this Agreement.
Section 3.04. RECLASSIFICATION, CONSOLIDATION, MERGER, SALE,
CONVEYANCE OR LEASE. In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the
outstanding shares of Warrant Securities; or (b) any consolidation or merger
to which the Company is party (other than a consolidation or a merger in
which the Company is the continuing corporation and which does not result in
any reclassification of, or change in, the outstanding shares of Warrant
Securities issuable upon exercise of the Warrants); or (c) any sale,
conveyance or lease to another corporation of the property of the Company as
an entirety or substantially as an entirety; then the Company, or such
successor or purchasing corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or otherwise so that the
holders of the Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such Warrants, to
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purchase the kind and amount of shares of stock and other securities and
property receivable upon such a reclassification, change, consolidation,
merger, sale, conveyance or lease as would be received by a holder of the
number of shares of Warrant Securities issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger,
sale, conveyance or lease, and, in the case of a consolidation, merger, sale,
conveyance or lease, the Company shall thereupon be relieved of any further
obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of
the Company, any or all of the Warrants issuable hereunder which heretofore
shall not have been signed by the Company, and may execute and deliver
Warrant Securities in its own name, in fulfillment of its obligations to
deliver Warrant Securities upon exercise of the Warrants. All the Warrants
so issued shall in all respects have the same legal rank and benefit under
this Agreement as the Warrants theretofore or thereafter issued in accordance
with the terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be approriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
consolidation, merger, conveyance, transfer or lease complies with the
provisions of this Section 3.04.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE -- Upon]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or
in conjunction with an exchange or transfer of such Offered Security. Prior
to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to transfer
the related Warrant Certificates. After the Detachable Date upon] surrender
at the corporate trust office of the Warrant Agent [or __________________],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such other
Warrant Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. The Warrant Agent shall keep, at its
corporate trust office [and at __________________________], books in which,
subject to such reasonable
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regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender
of the Warrant Certificates to the Warrant Agent at its corporate trust
office [or __________________________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants
and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant Certificate
surrendered for such exchange or registration of transfer.
Section 4.02 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF
OFFERED SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer,] [T]he Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled
by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder
in exchange therefor 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.
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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.
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
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred other than as a result of the Warrant Agent's negligence, bad faith
or willful misconduct 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
other than as a result of the Warrant Agent's negligence, bad faith or
willful misconduct, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the reasonable costs and expenses of
defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations
or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or
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document reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, and its
shareholders, officers, directors and employees, may become the owner of, or
acquire any interest in, Warrants, with the same rights that it or they would
have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity
(f) NO LIABILITY FOR INTEREST. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be accountable
or under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility
to initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 6.02 hereof, to make any demand upon the
Company.
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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 it all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying
such removal and the intended date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the Company,
as hereinafter provided, of a successor Warrant Agent (which shall be a bank
or trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or State bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Warrant Agent or its property or affairs, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action, or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of the
Warrant Agent in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law, or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of its property
or affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts,
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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 Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement
as the Company and the Warrant Agent may deem necessary or desirable;
PROVIDED that such action shall not materially adversely affect the interests
of the holders of the Warrant Certificates. The parties hereto may also
modify or amend this Agreement and the terms of the Warrant Certificates with
the consent of the holders of not less than a majority in number of the then
outstanding unexercised Warrant Certificates affected thereby; provided that
no such modification or amendment that accelerates the expiration date,
increases the exercise price, reduces the number of outstanding Warrant
Certificates the consent of the holders of which is required for any such
modification or amendment, or otherwise materially adversely affects the
rights of the holders of the Warrant Certificates, may be made without the
consent of each holder affected thereby.
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 or demand to the Company.
Section 6.03. ADDRESSES. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
_________________________________________________, Attention: ________________
and any communication from the Warrant Agent to the Company with respect to
this Agreement shall be addressed to Fingerhut
-11-
Companies, Inc., 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Treasurer and General Counsel (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
Section 6.04. APPLICABLE LAW. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued
hereunder and of the respective terms and provisions thereof shall be
governed by, and construed in accordance with, the laws of the State of
__________________.
Section 6.05. DELIVERY OF PROSPECTUS. The Company shall
furnish to the Warrant Agent sufficient copies of a prospectus relating to
the Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.
Section 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 act filings under United
States Federal and State laws (including without limitation a registration
statement in respect of the Warrants and Warrant Securities under the
Securities Act of 1933), which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant Securities issued
upon exercise of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the expiration
of the period during which the Warrants are exercisable.
Section 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement shall give to any person other than the Company,
the Warrant Agent and the holders of the Warrant Certificates any right,
remedy or claim under or by reason of this Agreement.
Section 6.08. HEADINGS. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of
the provisions hereof.
Section 6.09. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and
the same instrument.
Section 6.10. INSPECTION OF AGREEMENT. A copy of this
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
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IN WITNESS WHEREOF Fingerhut Companies, Inc. and _____________
have caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and
the same to be attested by their respective Secretaries or one of their
respective Assistant Secretaries, all as of the day and year first above
written.
FINGERHUT COMPANIES, INC.
By _______________________________
Its ___________________________
Attest:
_______________________________________
[WARRANT AGENT]
By _______________________________
Its ___________________________
Attest:
_______________________________________
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[FORM OF LEGEND IF OFFERED Prior to _______________ this
SECURITIES WITH WARRANTS WHICH ARE Warrant Certificate cannot be
NOT IMMEDIATELY DETACHABLE. transferred or exchanged unless
attached to a [Title of Offered
Securities].]
[FORM OF LEGEND IF WARRANTS ARE NOT Prior to __________________,
IMMEDIATELY EXERCISABLE. Warrants evidenced by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FINGERHUT COMPANIES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON __________________
No. ____ ___________________ Warrants
This certifies that ______________________ or registered
assigns is the registered owner of the above indicated number of Warrants,
each Warrant entitling such owner [IF OFFERED SECURITIES WITH WARRANTS WHICH
ARE NOT IMMEDIATELY DETACHABLE --, subject to the registered owner qualifying
as a "holder" of this Warrant Certificate, as hereinafter defined] to
purchase, at any time [after 3:30 p.m., New York City time, on
___________________ and] on or before 3:30 p.m., New York City time, on
_________________, __________ shares of [Title of Warrant Securities]
(the "Warrant Securities"), of Fingerhut Companies, Inc. (the "Company") on
the following basis: during the period from _____________, through and
including ______________, the exercise price of each Warrant will be
________; during the period from ____________, through and including
____________, the exercise price of each Warrant will be __________ (the
"Warrant Price"). No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant. The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [in cash or by certified check or official bank check or
by bank wire transfer, in each case,] [by bank wire transfer] in immediately
available funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent"), [or ______________], which is, on the
date hereof, at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --, prior
to ______________ (the "Detachable Date"), the registered owner of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] the person in whose name
at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4.01 of
the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement dated as of _______________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _____________________].
[IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE -- Prior to ________________, this Warrant Certificate
may be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. After such date,
transfer of this] [IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE -- Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or ________________] by the registered owner or
such owner's assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant Agreement.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Except as provided in the immediately preceding paragraph, after]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANT
ALONE -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
________________] for Warrant Certificates representing the same aggregate
number of Warrants.
A-2
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of dividends or
distributions, if any, on the Warrant Securities or to exercise any voting
rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________
FINGERHUT COMPANIES, INC.
By ________________________________
Its ____________________________
Attest:
_______________________________________
Countersigned:
_______________________________________
As Warrant Agent
By ____________________________________
Authorized Signature
A-3
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
[in United States dollars] [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ___________________ [or ___________________], which
[payment] [wire transfer] must specify the name of the holder and the number
of Warrants exercised by such holder. In addition, the holder must complete
the information required below and present this Warrant Certificate in person
or by mail (certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase _________ shares of
the [Title of Warrant Securities] (the "Warrant Securities") of Fingerhut
Companies, Inc. and represents that he has tendered payment for such Warrant
Securities [in Dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds to the order of Fingerhut Companies, Inc., c/o [insert name and
address of Warrant Agent], in the amount of _________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
A-4
Dated: ___________________________ Name __________________________________
__________________________________ Address _______________________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________________
Signature Guaranteed
_________________________ Signature ____________________________
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
By mail at ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
[Instructions as to form and delivery of Warrant Securities and,
if applicable, Warrant Certificates evidencing unexercised Warrants -- complete
as appropriate.]
A-5
