EXHIBIT 4.6
EEX CORPORATION
AND
-----------------------,
Warrant Agent
-----------------
WARRANT AGREEMENT
-----------------
Providing for the Issuance of
% [Notes/Debentures] due Purchase Warrants
Dated as of ____________, 1998
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is entered into as of ____________, 1998 between EEX
Corporation, a corporation incorporated under the laws of Texas (the "Company")
and _____________________, a ________ incorporated under the laws of
____________ (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants (as hereinafter
defined), each Warrant entitling the registered owner thereof to purchase ___%
[Notes/Debentures] due ______ (as hereinafter defined) of the Company at the
price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as herein
provided; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as in this Agreement
provided legal and valid and binding upon the Company with the benefits and
subject to the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration mutually given and received, the receipt and sufficiency whereof
is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Section 1.1 shall for
all purposes of this Agreement, have the meanings herein specified, the
following definitions to be equally applicable to both the singular and plural
forms of any of the terms herein defined:
"Agent" shall mean _____________, a _________ incorporated under the laws
of ____________ or its lawful successors from time to time appointed in
accordance with this Agreement.
"Agreement" shall mean this Warrant Agreement between the Company and the
Agent, as such agreement is originally executed or as it may from time to time
be supplemented, modified or amended as provided herein.
"Business Day" shall mean any day which is not a Saturday or Sunday or
which in the City of Dallas, Texas or in The City of New York, New York or
____________ is neither a legal holiday nor a day on which banking institutions
are authorized by law or regulation to close.
"Company" shall mean EEX Corporation, a Texas corporation, until a
successor entity shall have become such pursuant to the applicable provisions of
this Agreement and thereafter the term "Company" shall mean such successor
entity.
"Event of Default" shall mean any event specified as such in Section 6.1
hereof. An Event of Default shall "exist" if an Event of Default shall have
occurred and be continuing.
"Exercise Date" shall mean each date during the Exercise Period on which
[Notes/Debentures] are purchased by a Registered Owner through the exercise of
all or a portion of its Warrants.
"Exercise Form" shall mean the form designated Exercise Form attached as
Annex II to each Warrant.
"Exercise Period" shall mean the period commencing at 9:00 a.m. (time) on
_____________, ____ and ending at 4:00 p.m. (___________ time) on _____________,
_____.
"Exercise Price" shall have the meaning accorded such term in Section 2.1
of this Agreement.
"Indenture" shall mean that certain Indenture dated as of ___________, ____
between the Company and ___________, as trustee, as such Indenture was
originally executed or as it may from time to time be supplemented, modified or
amended in accordance with the terms thereof.
"[Notes/Debentures]" means any or all, as the case may be, of the Company's
___% [Notes/Debentures] due ___________, authenticated and delivered as provided
in the Indenture.
"Notice of Intent to Exercise" shall have the meaning accorded thereto in
Section 4.1 of this Agreement. The form of Notice of Intent to Exercise is
attached as Annex I to each Warrant.
"Outstanding" when used with reference to the Warrants shall mean, as of
the date of determination, all Warrants theretofore authenticated and delivered
under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or delivered to the
Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other Warrants shall
have been authenticated and delivered under this Agreement.
"Person" shall mean an individual, a corporation, a partnership, a joint
venture, an association, a joint stock company, a trust, an unincorporated
organization, or a government or any agency, authority or political subdivision
thereof.
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"Register" shall mean the books for the registration and transfer of
Warrants which books are kept by the Agent pursuant to Section 3.1 hereof.
"Time of Expiry" means 4:00 p.m., _________ time, on ____________, 19___.
"Warrantholders" or "Registered Owners" means the persons from time to time
who are Registered Owners of the Warrants.
"Warrantholders' Request" means an instrument signed in one or more
counterparts by the Warrantholders entitled to purchase in the aggregate not
less than a majority of the aggregate principal amount of [Notes/Debentures]
which could be purchased pursuant to all Warrants then Outstanding requesting
the Agent to take some action or proceeding specified therein.
"Warrants" means the ___% [Notes/ Debentures] due 200__ Purchase Warrants
issued hereunder pursuant to which Warrantholders have the right to purchase
[Notes/Debentures] on the terms and conditions herein set forth.
"Written Order of the Company" and "Written Consent of the Company" mean,
respectively, a written order or consent signed in the name of the Company by
any one of its officers and may consist of one or more instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
Section 2.1. Issuance and Terms of Warrants. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than [U.S. $/Specified Currency]_______ in principal amount of the
[Notes/Debentures] is hereby authorized. The Warrants are hereby designated as
the "[Notes/Debentures] due ______ Purchase Warrants." The Warrants shall be
delivered by the Company to the Agent to be authenticated by the Agent and
delivered in accordance with the Written Order of the Company. The Warrants
shall be dated _____________, 19__ and shall be issuable in fully registered
form and in denominations that permit upon exercise the purchase of [U.S.
$/Specified Currency]_______ principal amount of [Notes/Debentures] and any
integral multiples thereof.
The Warrants shall be exercisable on any Business Day during the Exercise
Period. Each Warrant in the denomination of [U.S. $/Specified Currency] shall
entitle the Registered Owner thereof to exercise such Warrant in accordance with
and pursuant to the terms thereof for the purchase of a [Note/Debenture] in the
principal amount of [U.S. $/Specified Currency] at a purchase price equal to par
plus interest which would have accrued thereon if the [Note/Debenture] had been
issued on _______________, _______, to but not including, the Exercise Date (the
"Exercise Price").
Section 2.2. Form of Warrants. The Warrants shall be in substantially the
form set out in this Section 2.2, with such additional provisions, omissions,
variations or substitutions as are not
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inconsistent with the provisions of this Agreement. The Warrants may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
officer executing such Warrants as evidenced by such officer's execution
thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up to [U.S.
$/Specified Currency] ________ in Aggregate Principal Amount of ___%
[Notes/Debentures] due .
This Warrant expires at 4:00 p.m. (_______ time) on [________, _________]
and thereafter will be void and of no value. Notice of the holder's intent to
exercise this Warrant must be given to ________________, as Agent not later than
4:00 p.m. (________ time) [____________, _____].
EEX CORPORATION
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the Registered Owner
hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
EEX Corporation (the "Company") and ______________, as Agent, (the "Agent"), to
purchase at any time from 9:00 a.m. (___________ time) [____________, _____] to
4:00 p.m. (________ time) [________________, _____], inclusive (each such date
being referred to as an "Exercise Date") up to [U.S. $/Specified Currency]
___________ in aggregate principal amount of ___% [Notes/Debentures] due _______
(the "[Notes/Debentures]") of the Company, at a purchase price equal to par plus
interest which would have accrued thereon if the [Notes/Debentures] had been
issued on _______, ____, by providing written notice to the Agent of the
Warrantholder's intention to exercise its right to purchase provided for herein
specifying the number of Warrants which the Warrantholder wishes to exercise,
such notice to be provided in the notice form annexed hereto as Annex II not
earlier than 9:00 a.m. (________ time)on [_________________, ____] and not later
than 4:00 p.m. (___________ time) [____________, ___], and by surrendering to
the Agent at its principal office in _____________, ___________ on any Exercise
Date, this Warrant, with the Exercise Form on which this Warrant is exercised,
the [Notes/Debentures] will be delivered as described below against payment
therefor in [U.S. Federal Reserve or other United States/Specified Currency]
funds current and immediately available to the Agent at the amount designated in
the Warrant Agreement, in each case in an amount equal to the purchase price of
the [Notes/Debentures] so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued under the
provisions of the Warrant Agreement. Reference is hereby made for particulars of
the rights of the Warrantholders and of the Company in respect thereof and the
terms and conditions upon which the Warrants are issued and held, all to the
sole effect as if the provisions of the Warrant
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Agreement were herein set forth, to all of which the Warrantholder by acceptance
hereof assents. The Company will furnish to the Warrantholder, upon written
request and without charge, a copy of the Warrant Agreement. All capitalized
terms not otherwise defined herein, shall have the meanings ascribed thereto in
the Warrant Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this Warrant
will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date. If
[Notes/ Debentures] are purchased in an aggregate principal amount which is less
than the total principal amount of the [Note/Debentures] that can be purchased
pursuant to this Warrant, the Warrantholder hereof will be entitled to receive
without charge a new Warrant in respect of the balance of the principal amounts
of [Notes/Debentures] which the Registered Owner hereof was entitled to purchase
under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
This Warrant is registered on the books of the Company and is transferable
only in accordance with the provisions of the Warrant Agreement by surrender
thereof at the principal office of the Agent duly endorsed or accompanied by a
written instrument of transfer duly executed by the Registered Owner of this
Warrant or its attorney duly authorized in writing all in accordance with the
terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed in
accordance with the laws of [New York], without regard to the conflicts of law
principles thereof.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly executed
as of _________________, ___.
EEX CORPORATION
By:
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Certificate of Authentication
This is one of the Warrants described
in the within-mentioned Warrant Agreement
______________________, as Agent
By
Authorized Officer
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ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant Number
(the "Warrant") hereby notifies you pursuant to Section 4.1 of the Warrant
Agreement dated as of _______________, _____ (the "Warrant Agreement") between
EEX Corporation (the "Company") and, __________ as Agent (the "Agent"), of the
undersigned's intention to exercise _______ of such Warrants on ____________,
____ (the "Exercise Date") to purchase [U.S. $/Specified Currency]
________________ in aggregate principal amount of the Company's ___%
[Notes/Debentures] due __________________ (the "[Notes/Debentures]") at a
purchase price equal to par plus interest which would have accrued thereon if
the [Note/Debenture] had been issued on [___________, _____]. The purchase price
shall be a total of [U.S. $/Specified Currency] __________ representing [U.S.
$/Specified Currency] _______ in principal and [U.S. $/Specified Currency] in
accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered to the
Agent at its principal office in ________________, ________. Payment of the
purchase price of the [Notes/Debentures] shall be made in [U.S. Federal Reserve
or other United States/Specified Currency funds] immediately available at the
principal office of the Agent on the Exercise Date. The undersigned shall direct
such [Notes/Debentures] be registered and delivered in the name(s) and the
amount(s) set forth opposite the undersigned's name on Annex II to the Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By
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ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the Warrant
attached hereto hereby exercises on _____________, ____ (the "Exercise Date")
Warrants to purchase [U.S. $/Specified Currency] _______ in aggregate principal
amount of EEX Corporation's ___% [Notes/Debentures] due ____________ (the
"[Notes/ Debentures]") at a purchase price equal to par plus $______ in accrued
interest on the [Notes/Debentures] from [_________________, ___], and agrees to
transfer on the Exercise Date in [U.S. $/Specified Currency] funds immediately
available to the Agent (at [account]) such purchase price of the
[Notes/Debentures] all in accordance with the terms and conditions of the
Warrant Agreement dated as of ____________, ____ (the "Warrant Agreement")
between EEX Corporation and [____________________], as Agent. The undersigned
hereby irrevocably directs that such [Notes/Debentures] be registered and
delivered in accordance with the directions set forth herein.
The undersigned acknowledges that all taxes or other governmental charges
payable upon the registration and delivery of such [Notes/Debentures] (other
than in connection with each original issue and sale of the [Notes/Debentures]),
including any transfer taxes payable if the [Notes/Debentures] are to be
registered in the name of a person or persons other than the undersigned
Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
By:________________________
[ ] Please check box if [Notes/Debentures] are to be delivered at the offices
of _______________ on the Exercise Date, failing which the
[Notes/Debentures] will be mailed by certified mail return receipt
requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
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Section 2.3. Warrants Mutilated, Lost, Destroyed or Stolen Warrants. If (i)
any mutilated Warrant is surrendered to the Agent, or the Company and the Agent
receive evidence to their satisfaction of the destruction, loss or theft of any
Warrant and (ii) there is delivered to the Company and the Agent such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Agent that such Warrant has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, 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 connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Warrants.
Section 2.4. Warrantholder not a Registered Owner of the
[Notes/Debentures]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
Section 2.5. Warrants to Rank Pari Passu. All Warrants shall rank pari
passu with each other.
Section 2.6. Execution of Warrants. The Warrants shall be signed in the
name and on behalf of the Company by one of its officers. The signature of the
officer executing the Warrants may be manual or facsimile. In case any officer
of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant 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.
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Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
Section 2.7. Purchase of Warrants by the Company. The Company may purchase
in the market, by private contracts or otherwise all or any portion of the
Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
Section 3.1. Register. The Agent, as agent of the Company, shall maintain,
at its principal office in ____________, ____, the Register in which, subject to
such reasonable regulations as it and the Company may prescribe, it shall
provide for the registration of the Warrants and the transfer of Warrants as in
this Agreement provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. The
Registered Owners of the Warrants shall present directly to the Agent all
requests for (a) registration of transfer of Warrants, (b) exchange of Warrants
for new Warrants in authorized denominations and (c) replacement of Warrants in
the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a list
of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
Section 3.2. Exchange of Warrants. Warrants entitling the Registered Owner
to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/ Debentures].
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
Section 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
Section 3.4. Registration of Transfer; Restrictions on Transfers. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________,
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__________ or at any other place that is designated by the Company as an office
for registration of transfer by the Registered Owner or such Registered Owner's
executors, administrators or other legal representatives or attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Agent and upon compliance with such reasonable requirements as the Agent and the
Company may prescribe. Any Warrants tendered for registration of transfer shall
be surrendered to the Agent.
Section 3.5. Notice to Warrantholders. Unless herein otherwise expressly
provided, any notice to be given hereunder to Warrantholders shall be deemed to
be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
Section 4.1. Method of Exercise of Warrants. The Registered Owner of any
Warrant may exercise the right thereby to purchase [Notes/Debentures] by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its Warrants, a
completed and executed Notice of Intent to Exercise in the form thereof set
forth in Annex I to each Warrant (a "Notice of Intent to Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise Form
in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
The items described in the foregoing clauses (a) and (b) shall be deemed
received when an actual copy or a facsimile thereof is received by the Agent.
Each Warrant shall be deemed to be surrendered only upon personal delivery
thereof to or, if sent by mail or other means of transmission, upon receipt
thereof by, the Agent at the office specified in this Section 4.1. Each Warrant
shall be deemed exercised as of the first Business Day on which all of the
foregoing conditions are satisfied with respect to such Warrant. The first day
on which the Warrants may be exercised is ________________, ____________, ___.
The Company acknowledges that the Registered Owners of the Warrants are not
required under any circumstances to take any other actions in order to exercise
their Warrants.
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Section 4.2. Effect of Exercise of Warrants. Upon surrender and payment of
the Exercise Price by the Registered Owner of any Warrant in accordance with
Section 4.1, the [Notes/Debentures] so purchased shall be deemed to have been
issued and the person or persons to whom such [Notes/Debentures] are to be
issued shall be deemed to have become the Registered Owner or owners of such
[Notes/ Debentures] on the Exercise Date.
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of [Notes/Debentures] not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
Section 4.3. Partial Exercise of Warrants. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase (Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant, but not less than $1,000 principal amount. In the event of any purchase
of a principal amount of [Notes/Debentures] less than the principal amount which
can be purchased pursuant to a Warrant, the Registered Owner thereof upon
exercise thereof prior to the Time of Expiry shall, in addition, be entitled to
receive forthwith a new Warrant in respect of the balance of the principal
amount of [Notes/Debentures] which such Registered Owner was entitled to
purchase pursuant to the surrendered Warrant and which were not then exercised.
The Company shall not be responsible for any taxes which may be payable in
connection with the issuance of such new Warrant.
Section 4.4. Expiration of Warrants. After the Time of Expiry, all rights
under any Warrant in respect of which the right of purchase herein and therein
provided for shall not theretofore have been exercised pursuant to Section 4.1
shall cease and terminate and such Warrant shall become void and of no effect
and all rights of the Registered Owner thereof under this Warrant Agreement
shall cease and terminate as of such termination; provided that such Registered
Owner's rights under this Warrant Agreement with respect to actions occurring
prior to such termination shall remain in full force. After the Time of Expiry,
each Registered Owner of any Warrants shall return any unexercised Warrants to
the Agent for cancelation in accordance with Section 4.5 of this Agreement.
Section 4.5. Cancellation of Surrendered Warrants. All Warrants surrendered
to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall forthwith be
canceled by the Agent. All Warrants canceled or required to be canceled under
this or any other provision of this Agreement may be destroyed by or under the
direction of the Agent and the Agent shall furnish the Company with a
destruction certificate identifying the Warrants so destroyed and the principal
amount of [Notes/Debentures] which could have been purchased pursuant to each.
Section 4.6. Accounting and Recording. The Agent shall forthwith account
and remit to the Company with respect to Warrants exercised and immediately
forward to the Company (or into an account or accounts of the Company with the
bank or trust company designated by the
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Company for that purpose) all monies received by the Agent on the purchase of
[Notes/Debentures] through the exercise of Warrants. All such monies, and any
[Notes/Debentures] or other instruments, from time to time received by the Agent
shall be received in trust for, and shall be segregated and kept apart by the
Agent in trust for, the Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price
and the number of [Notes/Debentures] reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
Section 5.1. Issuance of [Notes/Debentures]. The Company covenants that so
long as any Warrants remain Outstanding it will cause the [Notes/Debentures]
from time to time paid for pursuant to the Warrants in the manner herein
provided to be duly issued and delivered in accordance with the Warrants and the
terms hereof.
Section 5.2. Corporate Existence of the Company; Consolidation, Merger,
Sale or Transfer. The Company covenants that so long as any of the Warrants are
Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving , resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
Section 5.3. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange of Warrants. So long as any of the Warrants shall remain Outstanding,
the Company covenants that it will maintain an office or agency in
__________________, where the Warrants may be presented for registration,
exchange and transfer as in this Agreement provided, and where notices and
demands to or upon the Company in respect of the Warrants or of this Agreement
may be served, and where the Warrants may be presented for exchange for
[Notes/Debentures] as provided herein.
Section 5.4. Appointment to Fill a Vacancy in the Office of Agent. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
Section 6.1. Events of Default. The term "Event of Default" whenever used
herein with respect to any Warrant shall mean any one of the following events:
(a) Failure by the Company to deliver the [Notes/Debentures] in
exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform in any
material respect any of the covenants or agreements on its part in the
Warrants or in this Agreement specifically contained for the benefit of the
Warrantholders, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Agent, or to the
Company and the Agent by the Registered Owners of not less than 25%
(measured in terms of the principal amount of [Notes/Debentures] which can
be purchased pursuant thereto) of the Warrants at the time Outstanding
under this Agreement a written notice specifying such failure and stating
that such is a "Notice of Default" hereunder.
Section 6.2. Suits by Warrantholders. All or any of the rights conferred
upon the Registered Owner of any Warrant by the terms of such Warrant and/or
this Agreement may be enforced by the Registered Owner of such Warrants by
appropriate legal proceedings but without prejudice to the right which is hereby
conferred upon the Agent to proceed in its own name to enforce each and all of
the provisions herein contained for the benefit of the Registered Owners of the
Warrants from time to time Outstanding.
Section 6.3. Remedies not Waived; Enforcement Expense. No delay or failure
on the part of the Registered Owners of Warrants or the Agent to exercise any
right shall operate as a waiver of such right or otherwise prejudice such
Registered Owner's or Agent's, as the case may be, rights, powers and remedies.
The Company agrees to pay all costs, expenses and fees, including all reasonable
attorneys' fees, which may be incurred by a Registered Owner in enforcing or
attempting to enforce its rights thereunder and hereunder following the
occurrence and during the continuance of any Event of Default hereunder, whether
the same shall be enforced by suit or otherwise.
Section 6.4. Incorporators, Stockholders, Officers and Directors of Company
and Exempt Form Individual Liability. No recourse under or upon any obligation,
covenant or agreement of this Agreement, or of any Warrant, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the
14
Company because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied thereform are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
Section 7.1. Amendments Without Consent of Registered Owners of Warrants.
This Agreement and the terms and conditions of the Warrants may be amended by
the Company and the Agent, without the consent of any Registered Owner of
Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of the
Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the Company,
(c) to cure any ambiguity or correcting or supplementing any provision
contained herein or in the Warrants which may be defective or inconsistent
with any other provisions contained herein or in the Warrants,
(d) if deemed appropriate by the Company or required by law, to
evidence the permitted succession of another corporation to the Company and
the assumption by such successor of the covenants and obligations of the
Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or questions
arising under this Agreement or the Warrants which shall not adversely
affect the interests of the Registered Owners of the Warrants in any
material respect.
Section 7.2. Amendments with Consent of Registered Owners of Warrants. This
Agreement, the terms and conditions of the Warrants and the covenants contained
in either may also be modified or amended by the Company and the Agent and past
defaults thereunder or future compliance therewith by the Company may be waived
either with the written consent of the Registered Owners of not less than a
majority of Warrants (measured in terms of the principal amount of the
[Notes/Debentures] which could be purchased pursuant thereto) at the time
Outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the Warrants (measured in terms of the principal amount of the
[Notes/Debentures] which could be purchased pursuant thereto) at the time
Outstanding are present or represented, of a resolution by the
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Registered Owners of not less than 75% in aggregate principal amount of the
Outstanding Warrants present or represented at the meeting; provided that no
such modification, amendment or waiver may, without the consent or affirmative
vote of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver [Notes/Debentures] in
exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise
Dates or the Expiry Date with respect to any Warrant, or change the coin or
currency in which any Warrant is exercisable for [Notes/Debentures] or
impair the right to institute suit for the enforcement of any rights of any
Registered Owner of a Warrant or
(b) Reduce the percentage in amount of the Outstanding Warrants, the
consent of which Registered Owners is required for any modification or
amendment to this Agreement or to the terms and conditions of or covenants
contained in this Agreement or in the Warrants or for any waiver of
compliance therewith or
(c) modify any of the provisions of this Section 7.2 except to provide
that certain other provisions of this Agreement or the terms and conditions
of the Warrants cannot be modified, amended or waived without the consent
of the Registered Owner of each Outstanding Warrant affected thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
Section 7.3. Binding Nature of Amendments; Notice. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
ARTICLE VIII
MEETINGS
Section 8.1. Meetings of Registered Owners of Warrants. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any
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request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement or the Warrants to be made, given or taken by
Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of Warrants
for any purpose specified herein to be held at such time and at such place in
______ or __________ as the Agent shall determine. Notice of every meeting of
Registered Owners of Warrants, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, by mail to each registered Owner at its address as it appears on
the Register, not less than 21 nor more than [45] days prior to the date fixed
for the meeting. In case at any time the Company or the Registered Owners of at
least 25% in aggregate amount of the Outstanding Warrants shall have requested
the Agent to call a meeting of the Registered Owners of Warrants for any
purpose, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Agent shall not have mailed notice
of such meeting within 14 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Registered Owners of Warrants in the amount previously specified,
as the case may be, may determine the time and the place in _______ or for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided herein.
To be entitled to vote at any meeting of Registered Owners of Warrants, a
Person shall be a registered Owner of Outstanding Warrants. The Persons entitled
to vote a majority in aggregate amount of the Outstanding Warrants shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Registered Owners of Warrants, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 5 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 5 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in this Section
8.1 with respect to an original meeting, except that such notice need be given
only once not less than 3 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage of the amount of the Outstanding Warrants
which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for a
lack of a quorum the persons entitled to vote 25% in aggregate amount of the
Outstanding Warrants shall constitute a quorum for the taking of any action set
forth in the notice of the original meeting. Any meeting of Registered Owners of
Warrants at which a quorum is present may be adjourned from time to time by a
vote as hereinafter provided in this Section 8.1, and the meeting may be held as
so adjourned without further notice. At a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid, any resolution and all
matters shall be effectively passed or decided if passed or decided by persons
entitled to vote the lesser of (a) a majority in aggregate amount of Outstanding
Warrants or (b) 75% in aggregate amount of Outstanding Warrants represented and
voting at such meeting.
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The Agent may make such reasonable regulations as it may deem advisable for
any meeting of Registered Owners of Warrants in regard to proof of the holding
of Warrants and such other matters concerning the conduct of the meeting as it
shall deem appropriate. The
Agent shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or Registered
Owners of Warrants as provided herein, in which case the Company or the
Registered Owners calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and permanent secretary of
the meeting shall be elected by note of the persons entitled to vote a majority
in aggregate principal amount of the Outstanding Warrants represented at the
meeting. The chairman of the meeting shall have no right to vote, except as a
Holder of Warrants.
Section 8.2. Record of Meetings. A record, at least in triplicate, of the
proceedings of each meeting of Registered Owners of Warrants shall be prepared,
and one such copy shall be delivered to the Company and the Agent. The copy
delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
Section 9.1. Appointment of Agent. The Company hereby appoints, at present
having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
Section 9.2. Acceptance of Appointment by Agent; Limitations of Duties of
Agent. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed upon with
the Company for all services rendered by it, and the Company agrees
promptly to pay such compensation and to reimburse the Agent for its
reasonable out-of-pocket expenses (including, without limitation, the
reasonable compensation of its counsel) incurred by it in connection with
the services rendered by it hereunder. The Company also agrees to indemnify
the Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with its acting as such Agent hereunder, including the
costs and expenses of defending against any claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and does
not assume any obligations or relationship of agency or trust for or with
any of the Registered Owners of the Warrants.
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(c) The Agent may consult with one or more counsel (who may also be
counsel to the Company), and, in the absence of bad faith, the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in the good faith
reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company
reasonably believed by the Agent to be genuine and to have been signed by
the proper persons.
(e) The 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 Agent hereunder, may engage
or be interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or body
of Registered Owners of the Warrants or holders of other obligations of the
Company as freely as if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in the
Agent's certificates of authentication) shall be taken as the statements of
the Company, and the Agent assumes no responsibility for their correctness.
The Agent makes no representation as to the validity or sufficiency of this
Agreement or the Warrants, provided that the Agent shall not be relieved of
its duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the Company of
the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only such
duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 9.3. Agent Required. The Company agrees that, until all Warrants
(i) shall have been delivered to the Agent for cancellation or (ii) have become
null and void because of the passage of the Expiry Date, there shall at all
times be a Agent hereunder which shall be a corporation doing business in the
United States and which alone or with its affiliates has a combined capital and
surplus of at least $[___,000,000].
Section 9.4. Resignation and Removal of Agent; Appointment of Successor.
The Agent may at any time resign by giving written notice (in accordance with
Section 10.1 hereof) to the Company of such intention on its part, specifying
the date on which its desired resignation shall
19
become effective; provided, however, that such date shall never be less than
[90] days after the receipt of such notice by the Company unless the Company
agrees to accept less notice. Upon receipt of such notice of resignation, the
Company shall promptly act to appoint a successor Agent. The Agent may be
removed at any time by the Company by delivering written notice thereof
specifying such removal and the date when it is intended to become effective.
Any resignation or removal of the Agent shall take effect upon the date of the
appointment by the Company as hereinafter provided of a successor and the
acceptance of such appointment by such successor.
In case at any time the Agent shall resign, or shall be removed, or shall
become incapable of acting or shall be adjudged as bankrupt or insolvent, or if
a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor agent,
eligible as aforesaid, shall be appointed by the Company. Upon the appointment
as aforesaid of a successor agent and acceptance by it of such appointment, the
Agent so superseded shall cease to be the Agent hereunder. If no successor Agent
shall have been so appointed by the Company and shall have accepted appointment
as hereinafter provided, then the Registered Owners of a majority in aggregate
amount of the Outstanding Warrants, on such Holders' behalf and on behalf of all
others similarly situated may petition any court of competent jurisdiction for
the appointment of a successor Agent.
Any successor 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 Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
Section 9.5. Merger, Conversion, Consolidation or Succession to Business of
Agent. Any corporation into which the Agent may be merged or converted, or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the assets and business of
the Agent, shall be the successor to the Agent hereunder, provided such
corporation shall be otherwise eligible under this Article IX, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered, by
the Agent then in office, any successor by merger, conversion or consolidation
to such authenticating Agent
20
may adopt such authentication and deliver the Warrants so authenticated with the
same effect as if such successor Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices. All notices or demands hereunder upon the Company or
the Agent may be electronically communicated or hand delivered or sent by
overnight courier, addressed to any party hereto as provided in this Section
10.1.
All communications intended for the Company shall be sent to:
EEX Corporation
0000 XxxxXxxx Xxxx.
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: (Chief Financial Officer)
Fax Number:
All communications intended for the Agent shall be sent to:
Agent Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a day on which commercial banks are
open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for
21
all purposes, if given, made or filed in writing with the Agent in accordance
with the provisions of this Section 10.1.
Section 10.2. Day Not a Business Day. If any date on which a payment is to
be made, notice given or other action taken hereunder is not a Business Day,
then such payments, notice or other action shall be made, given or taken on the
next succeeding business day in such place, and in the case of any payment, no
interest shall accrue for the delay.
Section 10.3. Currency. All amounts herein are expressed in [United States
Dollars/Specified Currency].
Section 10.4. Governing Law. This Agreement and the Warrants shall be
construed in accordance with the laws of [New York].
Section 10.5. Limitation of Rights to Parties and Registered Owners of
Warrants. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
Section 10.6. Separability of Invalid Provisions. In case any one or more
of the provisions contained in this Agreement or in the Warrants shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
Section 10.7. No Waiver of Rights. A failure or delay in exercising any
right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
Section 10.8. Execution in Several Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 10.9. Article and Section Headings. The headings or titles of the
several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
Section 10.10. Successors and Assigns. All the covenants and agreements in
this Agreement contained by or on behalf of the Company or the Agent shall bind
their respective successors and assigns, whether so expressed or not.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EEX CORPORATION
By:
---------------------------
[AGENT NAME], as Agent
By:
---------------------------
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