Exhibit 4fl
[Form of Debt Warrant
Agreement for Warrants Sold
Attached to Debt Securities]
FORTUNE BRANDS, INC.
and
____________________,
as Warrant Agent
_______________________________
DEBT WARRANT AGREEMENT
Dated as of _______________
________________________________
Warrants to Purchase __________
_________________________
TABLE OF CONTENTS/*/
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Page
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ARTICLE I ISSUANCE OF WARRANTS [AND TEMPORARY
GLOBAL SECURITY] AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES........................... 2
SECTION 1.01. Issuance of Warrants.................................... 2
SECTION 1.02. Execution and Delivery of Warrant Certificates.......... 2
SECTION 1.03. Issuance of Warrant Certificates........................ 4
SECTION 1.04. Temporary Global Security............................... 5
ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS........... 6
SECTION 2.01. Warrant Price........................................... 6
SECTION 2.02. Duration of Warrants.................................... 6
SECTION 2.03. Exercise of Warrants.................................... 6
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES....................... 11
SECTION 3.01. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates......................................... 11
SECTION 3.02. Lost, Mutilated, Stolen or
Destroyed Warrant Certificates....................... 11
SECTION 3.03. Enforcement of Rights................................... 12
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer........... 12
ARTICLE IV EXCHANGE AND TRANSFER...................................... 13
SECTION 4.01. Exchange and Transfer................................... 13
SECTION 4.02. Treatment of Holders of Warrant Certificates............ 14
SECTION 4.03. Cancellation of Warrant Certificates.................... 15
ARTICLE V CONCERNING THE WARRANT AGENT................................ 16
/*/ The Table of Contents is not a part of the Agreement.
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SECTION 5.01. Warrant Agent........................................... 16
SECTION 5.02. Conditions of Warrant Agent's Obligations............... 16
SECTION 5.03. Resignation and Appointment of Successor................ 18
ARTICLE VI MISCELLANEOUS.............................................. 20
SECTION 6.01. Amendment............................................... 20
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.... 20
SECTION 6.03. Addresses............................................... 20
SECTION 6.04. Applicable Law.......................................... 21
SECTION 6.05. Delivery of Prospectus.................................. 21
SECTION 6.06. Obtaining of Governmental Approval...................... 21
SECTION 6.07. Persons Having Rights Under Warrant Agreement........... 21
SECTION 6.08. Headings................................................ 21
SECTION 6.09. Counterparts............................................ 22
SECTION 6.10. Inspection of Agreement................................. 22
SECTION 6.11. Notices to Holders of Warrants.......................... 22
EXHIBIT A - Form of Warrant Certificates [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificates in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant Agent by the
Euro-clear Operator or CEDEL]
[EXHIBIT D - Form of Warrant Exercise Notice]
ii
DEBT WARRANT AGREEMENT/*/
THIS AGREEMENT dated as of ____________ between FORTUNE BRANDS, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and _______________________________, a [bank] [trust
company] duly incorporated and existing under the laws of _______________, as
Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has entered into an Indenture dated as of [
], 1999, as amended (the "Indenture"), between the Company and [The Chase
Manhattan Bank], as Trustee (the "Trustee"), providing for the issuance from
time to time of its unsecured debt securities to be issued in one or more series
as provided in the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the
______________________
. Complete or modify the provisions of this form as appropriate to reflect
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the terms of the Warrants and Warrant Securities. Monetary amounts may be
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in U.S. dollars, in a foreign currency or in a composite currency,
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including but not limited to the European Currency Unit.
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Bracketed language here and throughout this Agreement should be inserted as
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follows:
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1: If Warrants are immediately detachable from the Offered Securities;
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and
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2: If Warrants are detachable from the Offered Securities only after the
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Detachable Date.
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issuance, transfer, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things, the
form[s] and provisions of the Warrant Certificates and the terms and conditions
on which they may be issued, transferred, 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. The Warrants shall be evidenced
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by one or more Warrant Certificates. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase a Warrant Security in the principal amount of and shall be initially
issued in connection with the issuance of the Offered Securities [1: and shall
be separately transferable immediately thereafter] [2: but shall not be
separately transferable until on and after , 19 (the "Detachable Date")]. The
Warrants shall be initially issued [in units] with the Offered Securities, and
each Warrant [included in such a unit] shall evidence the right, subject to the
provisions contained herein and in the Warrant Certificates, to purchase [ ]
principal amount of Warrant Securities [included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
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Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] 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
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to usage. The Warrant Certificates shall be signed on behalf of the Company by
its Chairman of the Board (or its Chairman of the Executive Committee), any Vice
Chairman, its President, its principal financial officer, its principal
accounting officer, its general counsel, any Vice President or its Treasurer, in
each case under its corporate seal, which may but need not be attested by its
Secretary or one of its Assistant Secretaries [, except that the Global Warrant
Certificate may be executed by any such officer without any necessity that such
signature be under seal as aforesaid]. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The corporate 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 Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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 as provided herein, 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", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
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Warrant Agent for that purpose [2: or, prior to the Detachable Date, any person
in whose name at the time the Offered Security to which such Warrant Certificate
is attached is registered upon the register of the Offered Securities. Prior to
the Detachable Date, the Company will or will cause the registrar of the offered
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date]. [The term "Holder", when used with
respect to the Global Warrant Certificate, shall mean [2:, prior to the
Detachable Date, the bearer of the Temporary Global Security (as defined in
Section 1.04) evidencing the Offered Securities to which the Warrants evidenced
by the Global Warrant Certificate were initially attached and, after the
Detachable Date,] the bearer of the Global Warrant Certificate.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
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evidencing the right to purchase an aggregate principal amount not exceeding
_____ aggregate principal amount of _____ Warrant Securities (except as provided
in Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing ________ Warrants representing the right to purchase up to ________
aggregate principal amount of Warrant Securities and shall[, in the case of
Warrant Certificates in registered form,] deliver such Warrant Certificates to
or upon the order of the Company [and, in the case of the Global Warrant
Certificate, upon the order of the Company, deposit the Global Warrant
Certificate with _______________________, as common depositary (the "Common
Depositary") for Xxxxxx Guaranty Trust Company of New York, Brussels office (or
any successor), as operator of the Euro-clear System (the "Euro-clear
Operator"), and for Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL")
for credit to the accounts of persons appearing from time to time on the records
of the Euro-clear Operator or of CEDEL as being entitled to any portion thereof.
[2: the Temporary Global Security [, as defined in Section 1.04,] will at the
same time be deposited with the Common Depositary.] [The Global Warrant
Certificate shall be held by the Common Depositary outside the United Kingdom.]]
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
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issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or [, with respect to Warrant Certificates in registered
form,] in connection with their transfer as hereinafter provided or as provided
in the antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the form
of the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary Warrant
Certificates, all as may be determined by the Company with the concurrence of
the Warrant Agent. Such temporary Warrant Certificates may contain such
reference to any provisions of this Warrant Agreement as may be appropriate.
Every such temporary Warrant Certificate shall be executed by the Company and
shall be countersigned by the Warrant Agent upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Warrant
Certificates [in registered form]. Without unreasonable delay, the Company
shall execute and shall furnish definitive Warrant Certificates [in registered
form] and thereupon such temporary Warrant Certificates may be surrendered in
exchange therefor without charge pursuant to and subject to the provisions of
Section 4.01, and the Warrant Agent shall countersign and deliver in exchange
for such temporary Warrant Certificates definitive Warrant Certificates [in
registered form] of authorized denominations evidencing a like aggregate number
of Warrants evidenced by such temporary Warrant Certificates. Until so
exchanged, such temporary Warrant Certificates shall be entitled to the same
benefits under this Warrant Agreement as definitive Warrant Certificates [in
registered form].
[2: SECTION 1.04. Temporary Global Security. Prior to the Detachable
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Date, each Offered Security to be issued with Warrants evidenced by the Global
Warrant Certificate shall, whenever issued, be evidenced by a single temporary
global Offered Security in bearer form without interest coupons (the "Temporary
Global Security") to be issued by the Company as provided in the Indenture.]
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ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On __________, 19__, the exercise price
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of each Warrant will be ____________. During the period from _____________,
19__ through and including _____________, 19__, the exercise price of each
warrant Will be _____ plus ______ [accrued amortization of the original issue
discount] [accrued interest] from ___________, 19__. On _____________, 19__ the
exercise price of each Warrant will be ________. During the period from
___________, 19__ through and including ______________, 19__, the exercise price
of each Warrant will be _____ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19__. [In each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months]. Such exercise price of Warrant Securities is referred to
in this Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ___________].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
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Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [_____________,
19__] and at or before [time, location] on _____________, 19__ (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list of
specific dates] (each, an "Exercise Date")], or such later date as the Company
may designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all rights
of the Holder [and any beneficial owners] of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [During] [With respect to
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Warrants evidenced by Warrant Certificates in registered form, 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
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately
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available funds,] the Warrant Price for each Warrant exercised (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable)) to the Warrant Agent at its corporate trust office
at [address] [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 evidencing each Warrant exercised with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may be
exercised by the Holder by presentation to the Warrant Agent at its office at
[address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate [2: together with, if prior to the Detachable Date,
the Temporary Global Security] (or written confirmation reasonably satisfactory
to the Warrant Agent that the Global Warrant Certificate [1: is] [2: and, if
prior to the Detachable Date, the Temporary Global Security are] held by the
Euro-clear Operator and CEDEL and will be duly endorsed to reflect the exercise
of Warrants [2: and, if prior to the Detachable Date, the surrender to the
Warrant Agent of the Offered Securities to which the Warrants are attached] by
the Euro-clear Operator and CEDEL), (ii) a duly executed certification from the
Euro-clear Operator or CEDEL, as the case may be, substantially in the form set
forth in Exhibit C hereto and (iii) payment in full [in lawful money of the
United States of America] [in applicable currency] [in cash] [by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] of the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)). Notwithstanding the
foregoing, the Holder may exercise Warrants as aforesaid on the Expiration Date
at any time prior to [time] in [city of Warrant Agent's office]. Any Warrants
exercised as set forth in this paragraph shall be deemed exercised at the
[country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or CEDEL
of any certification referred to above may be relied upon by the Company, the
Warrant Agent and the Trustee as conclusive evidence that a corresponding
certificate or certificates substantially in the form of Exhibit D hereto has or
have been delivered to the Euro-clear Operator or CEDEL, as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate [2: and, if prior to the Detachable
Date, the Temporary Global Security] may be presented for exercise of the
Warrants represented thereby [2: and, if prior to the Detachable Date, for
surrender for cancellation of the Offered Securities to which such Warrants are
attached] and notices and demands to or upon the Company in respect of the
Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate [2: and, if required, the Temporary Global Security] and the
certification of the Euro-clear Operator or CEDEL] as aforesaid, be deemed to be
the date on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment for the exercise of Warrants in an account of
the Company maintained with it (or in such other account as may be
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designated by the Company) and shall advise the Company, by telephone or by
facsimile transmission or other form of electronic communication available to
both parties, at the end of each day on which a payment for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed, then,
notwithstanding any other provision of this Agreement or the Warrant Certificate
evidencing such Warrants, but subject to the limitation that no Warrant may be
exercised after the Expiration Date, the Warrants shall be exercisable on the
next succeeding day which in such city is not a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common Depositary
at [both] its London [and location] office[s]] in writing [(which, in the case
of exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate answerback received,)] of (i) the number of
Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates [in registered form] evidencing such Warrants [or of the Euro-clear
Operator or CEDEL, as the case may be,] with respect to delivery of the Warrant
Securities to be issued upon such exercise, (iii) delivery of any Warrant
Certificates [in registered form] evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iv) such other information as the
Company or the Trustee shall reasonably require. [In addition, in the case of
exercised Warrants evidenced by the Global Warrant Certificate, the Warrant
Agent shall, as promptly as practicable, endorse, or cause the Common
Depositary, [location] office, or one of the Warrant Agent's agents to endorse,
Schedule A annexed to the Global Warrant Certificate to reflect the exercise of
such Warrants [2: and the Temporary Global Security to reflect the surrender for
cancellation of the Offered Securities to which such Warrants are attached] and,
if applicable, return the Global Warrant Certificate [2: and the Temporary
Global Security] to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], but subject to receipt by the Warrant
Agent of the
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Warrant Certificate evidencing such Warrant as provided in this Section, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the Holder of the Warrant Certificate evidencing each
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
[in registered form] evidencing the number of such Warrants remaining
unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, but, in the case of any Warrant Securities to be
issued in bearer form as provided in this sentence, on the date of the
applicable certification of the Euro-clear Operator or CEDEL referred to in the
second paragraph of this Section 2.03, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euro-clear Operator or CEDEL, as the case may be, to or
upon order of the Euro-clear Operator or CEDEL, as the case may be, or (ii) in
bearer form to the Common Depositary to be held for the account of the Euro-
clear Operator or CEDEL, as the case may be; provided, however, that no Warrant
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Security in bearer form shall be mailed or otherwise delivered to any location
in the United States of America, its territories or possessions or areas subject
to its jurisdiction or the Commonwealth of Puerto Rico.]
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 issuance 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.
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ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
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Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
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thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants in
the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant
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Certificates. Upon receipt by the Warrant Agent of evidence reasonably
------------
satisfactory to it and the Company of the ownership of and the loss, mutilation,
theft or destruction of any Warrant Certificate and of such security or
indemnity as may be required by the Company and the Warrant Agent to hold each
of them and any agent of them harmless and, in the case of mutilation of a
Warrant Certificate, 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,
mutilated, stolen or destroyed Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants[; provided, however,
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that any Global Warrant Certificate shall be so delivered only to the Common
Depositary]. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
stamp or other 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, mutilated, 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
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remedies with respect to the replacement of lost, mutilated, stolen or destroyed
Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
---------------------
provisions of this Agreement, any Holder of a Warrant Certificate [in registered
form or the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant Agent,
the Trustee, the holder of any Offered Securities or the Holder of any other
Warrant Certificate, may, in its own behalf and for its own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, its right to exercise
its Warrants in the manner provided in its Warrant Certificate [or the Global
Warrant Certificate, as the case may be,] and in this Agreement. [Neither the
Company nor the Warrant Agent shall be required to treat any person as a
beneficial owner of any Warrant evidenced by the Global Warrant Certificate
unless such person is so certified as such a beneficial owner by the Euro-clear
Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If
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at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted for
the Company, with the same effect, subject to the Indenture, as if it had been
named herein and in the Warrant Certificates as the Company; the Company shall
thereupon, except in the case of a transfer by way of lease, be relieved of any
further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the case
of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name pursuant to the
Indenture, 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
12
merger, consolidation, conveyance or transfer, such changes in phraseology and
form (but not in substance) may be made in the Warrant Certificates representing
the warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate [in registered form] may be exchanged or
transferred only together with the Offered Security to which such 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 the
Detachable Date, the transfer of the beneficial ownership of any Warrant
evidenced by the Global Warrant Certificate shall effect and shall be deemed to
effect the transfer of the beneficial ownership of any Offered Securities
evidenced by the Temporary Global Security that are attached to such Warrants.
Prior to any Detachable Date, each transfer of the Offered Security [on the
register maintained with respect to the Offered Securities, in the case of an
Offered Security that is in regisered from], shall operate also to transfer the
related Warrant Certificates. Similarly, prior to the Detachable Date, the
transfer of the beneficial ownership of any Offered Security evidenced by the
Temporary Global Security shall be deemed to be the transfer of the benefical
ownership of any Warrants evidenced by the Global Warrant Certificate that are
attached to such Offered Securities. The transfer of the beneficial ownership of
Warrants and Warrant Securities hereunder shall be effected only as provided in
Section 4.01. On or after the Detachable Date, upon] surrender at the corporate
trust office of the Warrant Agent at [address] [or __________], Warrant
Certificates [in registered form] evidencing Warrants may be exchanged for
Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates shall evidence
-------- -------
the same aggregate number of Warrants as the Warrant Certificates so
surrendered.
13
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ______________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant Certificates
[in registered form] upon surrender of such Warrant Certificates to the Warrant
Agent at its corporate trust office at [address] 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.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], 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.
(d) Whenever any Warrant Certificates [in registered form], 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 [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered form],
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(e) All Warrant Certificates [in registered form], 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 Certificates surrendered for
such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
--------------------------------------------
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing with such Holder as
the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.] [Each] [With respect to Warrant Certificates in
registered form, each] Holder of a Warrant Certificate, by accepting the
same, consents and
14
agrees with the Company, the Warrant Agent and every subsequent Holder of such
Warrant Certificate that until the transfer of such Warrant Certificate is
registered on the books of such Warrant Agent, [2 : or, prior to the Detachable
Date, until the transfer of the Offered Security to which such Warrant
Certificate is attached, is registered in the register of the Offered
Securities], the Company and the Warrant Agent may treat the registered Holder
of such 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. (a) Any Warrant
------------------------------------
Certificate surrendered for exchange or 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 cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date][, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant Agent
of its election, to cancel the unexercised Warrants, the Warrant Certificates
and the rights evidenced thereby. Promptly after receipt of such notice by the
Warrant Agent, the Company shall, or, at the Company's request, the Warrant
Agent shall in the name of and at the expense of the Company, give notice of
such cancellation to the Holders of the Warrant Certificates [in registered form
and to the beneficial owners of the Global Warrant Certificate (except that such
notice shall be required to be published only once)], such notice to be so given
not less than 30 nor more than 60 days prior to the date fixed for the
redemption of [2: the Offered Securities [or] [and]] the Warrant Securities
pursuant to Indenture or the terms thereof. The unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby shall be cancelled and
become void on the 15th day prior to such date fixed for redemption.
15
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 and in the
Warrant Certificates 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 herein 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 reasonable
attorneys' fees) incurred by the Warrant Agent without negligence, bad
faith or breach of this Agreement on its part in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its acting
as 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 Agreement and in
---------------------
connection with the Warrants and the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
16
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
-------
to it in its reasonable judgment, and the 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 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 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 in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under the Indenture.
(f) No Liability for Interest. 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 not be
---------------------------
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution
of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall
-------------------------
be taken as the statements of
17
Company and the Warrant Agent assumes no liability for the correctness of
the same.
(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 countersigned 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, to make any demand upon
the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
----------------------------------------
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date on
which its resignation shall become effective; provided, however, that such date
-------- -------
shall be not less than 90 days after the date on which such notice is given
unless the Company agrees to accept shorter notice. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust powers)
by written instrument in duplicate signed on behalf of the Company, one copy of
which shall be delivered to the
18
resigning Warrant Agent and one copy to the successor Warrant Agent. The Company
may, at any time and for any reason, remove the Warrant Agent and appoint a
successor Warrant Agent (qualified as aforesaid) by written instrument in
duplicate signed on behalf of the Company and specifying such removal and the
date when it is intended to become effective, one copy of which shall be
delivered to the Warrant Agent being removed and one copy to the successor
Warrant Agent. Any resignation or removal of the Warrant Agent and any
appointment of a successor Warrant Agent shall become effective upon acceptance
of appointment by the successor Warrant Agent as provided in this subsection
(b). In the event a successor Warrant Agent has not been appointed and accepted
its duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. Upon its resignation or removal, the
Warrant Agent shall be entitled to the payment by the Company of the
compensation and to the reimbursement of all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by it hereunder as agreed to in
Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with
19
like effect as if originally named as Warrant Agent hereunder, and such
predecessor 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 and the terms of the
---------
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, 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 affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
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
20
the Company with respect to this Agreement shall be addressed to Fortune Brands,
Inc., 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention:
Treasurer (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 hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
----------------------
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. 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 Approval. The Company will
----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including 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 Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. [Except
---------------------------------------------
as otherwise provided in Section 3.03, nothing] [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
21
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.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders
------------------------------
of Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
FORTUNE BRANDS, INC.
[SEAL] By____________________________
Name:
Title:
Attest:
___________________________
Name:
Title:
22
[WARRANT AGENT]
[SEAL] By___________________________
Name:
Title:
Attest:
________________________
Name:
Title:
23
Exhibit A
----------
[Attached]
FORM OF WARRANT CERTIFICATE [IN REGISTERED FORM]
[Face of Warrant Certificate]
[[1: This][2: Prior to ______ this] Warrant
Certificate cannot be transferred unless attached
to a [Title of Offered Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON , 19__
No.___ _______ Warrants
This certifies that or registered assigns
(the "Registered Holder") is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner to purchase, at any time [after
5:00 P.M., New York City time, on , 19 and] on or before 5:00 P.M.,
New York City time, on , 19 , principal amount of [Title
of Warrant Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the
"Company") issued and to be issued under the Indenture (as hereinafter defined),
on the following basis: [on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including ,19 , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from
_____, 19 ; on , 19 the exercise price of each Warrant will be
_____; during the period from _____, 19 through and including , 19 ,
the exercise price of each Warrant will be plus [accrued amortization of the
original issue discount] [accrued interest] from 19 [; in each case, the
original issue discount will be amortized at a % annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each principal amount of Warrant
Securities is .] The Registered 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
applicable currency] [in cash] [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 (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable)) to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the form of election to purchase on
the reverse hereof completed and duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor, as warrant agent (the "Warrant
Agent"), [or ] currently 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).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in fully registered form in
denominations of ____ and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Registered Holder hereof a new Warrant Certificate in
registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________ 19__ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Registered Holder consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
A-2
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are on
file at the corporate trust office of the Trustee [and at ].
[1: This Warrant] [2: Prior to _________, 19__ this] Certificate may
be transferred [2: only together with the [Title of Offered Securities] (the
"Offered Securities") to which the Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, a transfer of
such Offered Securities,] at the corporate trust office of the Warrant Agent [or
] by the Registered Holder or its assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
[1: After] [2: Except as otherwise provided in the immediately
preceding paragraph, 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 in registered form representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the Registered Holder
hereof to any of the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of principal of (premium, if
any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.
A-3
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
[SEAL] By___________________________
Name:
Title:
Attest:
___________________________
Countersigned:
___________________________
As Warrant Agent
By_________________________
Authorized Signature
A-4
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the Registered Holder must
pay in full [in lawful money of the United States of America] [in applicable
currency] [in cash] [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 Warrants exercised (plus any accrued interest as
specified in this Warrant Certificate) 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
Registered Holder and the number of Warrants exercised by such Registered
Holder. In addition, the Registered 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 ______________
principal amount of the [Title of Warrant Securities] (the "Warrant Securities")
of Fortune Brands, Inc. and represents that he has tendered payment for such
Warrant Securities [in lawful money of the United States of America) [in
applicable currency] [in cash] [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 Fortune Brands, 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 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 fewer than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued in registered
A-5
form and delivered either to the undersigned or as otherwise specified in the
instructions below.
Dated________________________ Name___________________________
(Please Print)
_____________________________
(Insert Social Security Address________________________
or Other Identifying
Number of Holder) ________________________
Signature______________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at________________________________________________
________________________________________________
________________________________________________
________________________________________________
By mail at________________________________________________
________________________________________________
________________________________________________
________________________________________________
[Instructions as to delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
A-6
Assignment
(Form of Assignment to be Executed if Holder
Desires to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED hereby sells,
assigns and transfers unto
Please insert social security
or other identifying number
---------------------------
___________________________
__________________________________________________________________
(Please print name and address including zip code)
______________________________________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated: _________________________________
Signature
(Signature must conform in all
respects to name of Registered
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,
Midwest or Pacific Stock
Exchange).
Signature Guaranteed
________________________
A-7
EXHIBIT B
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF GLOBAL WARRANT CERTIFICATE IN BEARER FORM]
[Face of Global Warrant Certificate]
[[1: The] [2: Prior to , the ] beneficial ownership of
any Warrants evidenced by this Global Warrant Certificate
may be transferred only together with the beneficial
ownership of the Temporary Global Security referred to
herein to which this Global Warrant Certificate was
initially attached.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
GLOBAL WARRANT CERTIFICATE REPRESENTING _________
WARRANTS TO PURCHASE OF UP TO ________
PRINCIPAL AMOUNT OF [Title of Warrant Securities]
VOID AFTER [TIME], ON , 19 .
This Global Warrant Certificate evidences warrants (the "Warrants")
representing the right to purchase, subject to the terms and conditions hereof
and of the Debt Warrant Agreement referred to below, at any time [after [time]
on l9 , and] on or before the [time] in [location] on ,
19 , up to aggregate principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the "Company")
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: on , 19 the exercise price of each Warrant will be
; during the period from , 19 through and including
, 19 , the exercise price of each Warrant will be plus [accrued
amortization of the original issue discount] [accrued interest] from
, 19 ; on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued
interest] from , 19 [; in each
case, the original issue discount will be amortized at a % annual rate,
computed on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months] (the "Warrant Price"). [The original issue
discount for each principal amount of Warrant Securities is .]
Beneficial owners of Warrants represented by this Global Warrant Certificate may
cause such Warrants to be exercised only by transmitting by tested telex or by
delivering or causing to be delivered to Xxxxxx Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), in Brussels, Belgium, or to Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") in Luxembourg, a warrant exercise notice,
substantially in the form attached as Exhibit D to the Debt Warrant Agreement
referred to below (the "Warrant Exercise Notice"), copies of which will be
available from the Euro-clear Operator or CEDEL or from [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") under the Debt Warrant
Agreement (the "Debt Warrant Agreement") dated as of , 19 between
the Company and the Warrant Agent. The Warrant Exercise Notice shall specify,
among other things, the aggregate principal amount of Warrant Securities to be
purchased on exercise of the Warrants, the account number or numbers on the
records of the Euro-clear Operator or CEDEL to which the Warrants being
exercised [2: and, if prior to , 19 , the Offered Securities (as defined
below)] to which such Warrants are attached are credited, the account number to
be debited for the Warrant Price of each Warrant being exercised (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable in respect of Warrant Securities to be issued in
registered form)), the account number to which the Warrant Securities issued on
exercise of the Warrants are to be credited and the form in which Warrant
Securities are to be issued. A Warrant Exercise Notice must be received by the
Euro-clear Operator or CEDEL prior to [time] (Brussels or Luxembourg time, as
the case may be) on the business day next preceding the Exercise Date (as
defined in such Warrant Exercise Notice). The delivery
B-2
to the Euro-clear Operator or CEDEL, as the case may be, of a Warrant Exercise
Notice shall constitute an irrevocable election to purchase the aggregate
principal amount of Warrant Securities specified therein.
Any whole number of Warrants evidenced by this Global Warrant
Certificate may be exercised to purchase Warrant Securities in bearer or
registered form in denominations of [ or ], in the case of Warrant
Securities in bearer form, and of and any integral multiple thereof, in
the case of Warrant Securities in registered form; provided, however, that no
-------- -------
Warrant Security in bearer form shall be mailed or otherwise delivered to any
location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico (the
"United States").
The Warrants evidenced by this Global Warrant Certificate, this Global
Warrant Certificate and the rights evidenced hereby may be cancelled in the
manner and under the circumstances described in the Debt Warrant Agreement.
Notice of cancellation of the Warrants evidenced by this Global Warrant
Certificate, this Global Warrant Certificate and the rights evidenced hereby
shall be given by publication in the manner described in the Debt Warrant
Agreement.
This Global Warrant Certificate is issued under and in accordance with
the Debt Warrant Agreement between the Company and the Warrant Agent and is
subject to the terms and provisions contained in the Debt Warrant Agreement, to
all of which terms and provisions the holder hereof consents by acceptance
hereof. Copies of the Debt Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Global Warrant Certificate will be issued under
and in accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and [The Chase Manhattan Bank], as Trustee
(the "Trustee"), and will be subject to the terms and provisions contained in
the Indenture. Copies of the Indenture and the form of the Warrant Securities
are on file at the corporate trust office of the Trustee [and at ].
B-3
[1: The] [2: Prior to , 19 , the] beneficial ownership of any
Warrants evidenced by this Global Warrant Certificate may be transferred only
together with the beneficial ownership of the Temporary Global Security (as
defined in the Debt Warrant Agreement) evidencing the [Title of Offered
Securities] (the "Offered Securities") to which this Global Warrant Certificate
was initially attached, and only for the purpose of effecting, or in conjunction
with, a transfer of such Temporary Global Security. After such date, the Global
Warrant Certificate, and all rights hereunder, may be transferred by delivery,
and the Company and the Warrant Agent may treat the holder hereof as the owner
for all purposes.
The Global 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 principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
B-4
This Global Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
By_____________________________
Name:
Title:
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
B-5
Schedule A
(additional continuation sheets may be attached
if required)
Exercises of Warrants
The following exercises of a portion of this Global Warrant Certificate for
Warrant Securities have been made:
Number of Warrants Remaining Number of
Date of Exercised Warrants Following Notation
Exercise for Warrant Securities Such Exercise Made By:
-------- ---------------------- ------------------- --------
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
B-6
Number of Warrants Remaining Number of
Date of Exercised Warrants Following Notation
Exercise for Warrant Securities Such Exercise Made By:
-------- ---------------------- ------------------- --------
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
B-7
Exhibit C
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CERTIFICATE TO BE DELIVERED TO WARRANT AGENT
BY THE EURO-CLEAR OPERATOR OR CEDEL]
FORTUNE BRANDS, INC.
Warrants (the "Warrants") to Purchase
[Title of Warrant Securities]
[Name of Warrant Agent]
[Address]
Dear Sirs:
The undersigned hereby irrevocably elects to exercise
__________________ Warrants to purchase as of _____________________ (the
"Exercise Date") ______ principal amount of the [Title of Warrant Securities]
(the "Warrant Securities") of Fortune Brands, Inc. and represents that it has
tendered payment for such Warrant Securities [in lawful money of the United
States of America] [in applicable currency] [in cash] [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 Fortune Brands, Inc.,
c/o [insert name and address of Warrant Agent], in the amount of ______ in
accordance with the terms hereof and the Debt Warrant Agreement dated as of
, 19__ between Fortune Brands, Inc. and you (the "Debt Warrant
Agreement").
In connection with the Undersigned's request that you deliver to us
any Warrant Securities in bearer form, the undersigned hereby certifies that as
of the date hereof, and except as set forth below, the Warrant Securities in
bearer form which are to be delivered to the Common Depositary referred to below
for our account (i) are being acquired by a person that is not a citizen or
resident of the United States, a domestic partnership, a domestic corporation or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source (a "United States person"), (ii) are
being acquired by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury
Regulations Section l.165-12(c)(l)(v)(a "financial institution"), purchasing for
its own account or for resale, or (B) a United States person acquiring the
Warrant Securities through the foreign branch of a financial institution on the
date hereof (and in either case (A) or (B), the financial institution hereby
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) are being acquired by a financial institution for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and such financial institution is not acquiring the
Warrant Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As a clearing organization within the meaning of Section 1.163-
5(c)(2)(i)(D)(8) of the regulations promulgated under the Internal Revenue Code
of 1986, as amended, the undersigned further certifies that (a) the above
certification is based solely on statements received from member organizations
appearing in our records (our "Account Holders") in certificates in the form set
forth in Exhibit D to the Debt Warrant Agreement and (b) as of the date hereof
we have not received any notification from any of our Account Holders to the
effect that the statements made by such Account Holders in such certificates are
no longer true.
"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
We hereby undertake to notify you immediately by telex if any of the
statements of our Account Holders referred to above is not correct at any time
on or before the Warrant Securities in bearer form are delivered, and in the
absence of any such notification it may be assumed that this Certificate applies
as of such date. We further agree to cause a [confirmation substantially in the
form of Exhibit E to the Debt Warrant Agreement and a] copy of the prospectus
relating to the Warrant Securities delivered to us as contemplated by Section
6.05 of the Debt Warrant Agreement to be delivered to our Account Holders
entitled to such Warrant Securities prior to or contemporaneously with our
transfer of such Warrant Securities to or to the account of such Account
Holders.
C-2
We understand that this Certificate is required in connection with
United States laws, tax laws and regulations. We irrevocably authorize you to
produce this Certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
Certificate.
The undersigned requests that said principal amount of Warrant
Securities be [in registered form in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below] [bearer form in the authorized denominations and delivered to
_______, as Common Depositary under the Debt Warrant Agreement, to be held for
our account].* [Instructions as to delivery of Warrant Securities to be issued
in registered form].
Dated:_______, 19__**
Very truly yours,
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as operator of the Euro-clear
System]*
By_________________________________
Title:
[CENTRALE DE LIVRAISONS DE VALEURS MOBILIERES
S.A.]*
By_________________________________
Title:
___________________
* Delete inapplicable reference.
** To be dated no earlier than the fifteenth day prior to the certification
date.
C-3
Exhibit D
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF WARRANT EXERCISE NOTICE]
Xxxxxx Guaranty Trust Company
of New York, Brussels Office,
as operator of the Euro-clear
System*
[Address]
Centrale de Livraison de Valeurs
Mobilieres S.A.*
[Address]
FORTUNE BRANDS, INC.
WARRANTS (THE "WARRANTS") TO PURCHASE
[Title of Warrant Securities]
(the "Warrant Securities")
Dear Sirs:
We hereby irrevocably elect to exercise ____________ Warrants to
purchase _____ (being _____ or an integral multiple thereof) aggregate principal
amount of Warrant Securities of Fortune Brands, Inc. (the "Company") on
_____________________, 19__ (the "Exercise Date"). The account number(s) on
your books in which the Warrants being exercised [and the [Title of Offered
Securities] to which such Warrants are attached]** are held is (are) _______
__________________. The Warrant Securities to be issued to us on exercise of
the Warrants are to be credited to such account, unless otherwise indicated
below and shall _________________.
* Delete inapplicable reference.
** Delete if dated on or after , 19 .
be in [registered] [bearer]* form in the following authorized
denominations: ________________.
We hereby request that you complete a certification in the form
required by the Debt Warrant Agreement hereinafter referred to make payment
directly to [ ], as Warrant Agent (the "Warrant Agent", which
term shall include its successors as such Warrant Agent), under the Debt Warrant
Agreement dated as of [ ] between the Company and the Warrant
Agent (the "Debt Warrant Agreement") at or prior to [time] on the Exercise Date,
or if the Exercise Date is the last day on which Warrants may be exercised under
the Debt Warrant Agreement, prior to [time] in [location] on the Exercise Date,
[in lawful money of the United States of America] [in applicable currency] [in
cash] [by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds] of
_____________, such amount being the Warrant Price (as defined in the Global
Warrant Certificate representing the Warrants, as provided in Section 1.02 of
the Debt Warrant Agreement) for Warrants exercised (plus any accrued interest as
specified in such Global Warrant Certificate) on the Exercise Date, and debit
account number ____________ for said amount.
The undersigned hereby certifies that as of the date hereof, and
except as set forth below, the Warrant Securities held by you for our account
(i) are being acquired by a person that is not a citizen or resident of the
United States, a domestic partnership, a domestic corporation or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source (a "United States person"), (ii) are being acquired by
a United States person that is (A) the foreign branch of a United States
financial institution (as defined in U.S. Treasury Regulations Section l.165-
12(c)(l)(v))(a "financial institution") purchasing for its own account or for
resale, or (B) a United States person who is acquiring the Warrant Securities
through the foreign branch of a financial institution on the date hereof (and in
either case (A) or (B), the financial institution hereby agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are being
acquired by a financial institution for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and such financial
D-2
institution is not acquiring the Warrant Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions. If this Certificate is being provided by a
clearing organization, it is based on statements provided to it by its member
organizations. As used herein, a "clearing organization" is an entity which is
in the business of holding obligations for member organizations and transferring
obligations among such members by credit or debit to the account of a member
without the necessity of physical delivery of the obligation.
We undertake to advise you immediately by telex if the foregoing
statement as to beneficial ownership is not correct on or before the date of
delivery of such Warrant Securities as to the entire principal amount of the
Warrant Securities to be issuable upon exercise then appearing on your books as
being held for our account, and in the absence of any such notification it may
be assumed that this Certificate applies as of such date.
This Certificate excepts and does not relate to [ ] of such
interest in the above Warrants in respect of which we are not able to certify
and as to which we understand exchange and delivery of Warrant Securities cannot
be made until we do so certify.
We understand that this Certificate is required in connection with
certain tax regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
Certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction and the Commonwealth of Puerto
Rico.
D-3
Dated: ______________, l9__*
Very truly yours,
[Name and, if appropriate,
title] As the beneficial
owner(s) of the interest in
the Warrants to which this
Warrant Exercise Notice relates.
By______________________________
Title:
* To be dated no earlier than the fifteenth day prior to the certification
date.
D-4
Exhibit 4fl
[Form of Debt Warrant Agreement
for Warrants Sold Alone]
FORTUNE BRANDS, INC.
and
____________________,
as Warrant Agent
DEBT WARRANT AGREEMENT
Dated as of _______________
Warrants to Purchase __________
_____________________
TABLE OF CONTENTS/*/
--------------------
Page
----
ARTICLE I ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES................ 2
SECTION 1.01. Issuance of Warrants............................................................... 2
SECTION 1.02. Execution and Delivery of Warrant Certificates..................................... 2
SECTION 1.03. Issuance of Warrant Certificates................................................... 3
ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS...................................... 5
SECTION 2.01. Warrant Price...................................................................... 5
SECTION 2.02. Duration of Warrants............................................................... 5
SECTION 2.03. Exercise of Warrants............................................................... 6
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES............... 10
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates.. 10
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates.......................... 10
SECTION 3.03. Enforcement of Rights.............................................................. 11
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer...................................... 11
_______________
/*/ The Table of Contents is not part of the Agreement.
ARTICLE IV EXCHANGE AND TRANSFER................................................................. 12
SECTION 4.01. Exchange and Transfer.............................................................. 12
SECTION 4.02. Treatment of Holders of Warrant Certificates....................................... 13
SECTION 4.03. Cancellation of Warrant Certificates............................................... 14
ARTICLE V CONCERNING THE WARRANT AGENT........................................................... 15
SECTION 5.01. Warrant Agent...................................................................... 15
SECTION 5.02. Conditions of Warrant Agent's Obligations.......................................... 15
SECTION 5.03. Resignation and Appointment of Successor........................................... 17
ARTICLE VI MISCELLANEOUS......................................................................... 19
SECTION 6.01. Amendment.......................................................................... 19
SECTION 6.02. Notices and Demands to the Company and Warrant Agent............................... 19
SECTION 6.03. Addresses.......................................................................... 20
SECTION 6.04. Applicable Law..................................................................... 20
SECTION 6.05. Delivery of Prospectus............................................................. 20
SECTION 6.06. Obtaining of Governmental Approval................................................. 20
SECTION 6.07. Persons Having Rights Under Warrant Agreement...................................... 20
SECTION 6.08. Headings........................................................................... 21
SECTION 6.09. Counterparts....................................................................... 21
SECTION 6.10. Inspection of Agreement............................................................ 21
SECTION 6.11. Notices to Holders of Warrants..................................................... 21
3
DEBT WARRANT AGREEMENT *
THIS AGREEMENT dated as of ____________ between FORTUNE BRANDS, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and _______________________________, a [bank] [trust
company] duly incorporated and existing under the laws of _______________, as
Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has entered into an Indenture dated as of [
], 1999, as amended (the "Indenture"), between the Company and [The Chase
Manhattan Bank], as Trustee (the "Trustee"), providing for the issuance from
time to time of its unsecured debt securities to be issued in one or more series
as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of
_______________________
* Complete or modify the provisions of this form as appropriate to reflect the
terms of the Warrants and Warrant Securities. Monetary amounts may be in
U.S. dollars, in a foreign currency or in a composite currency, including
but not limited to the European Currency Unit.
the Warrant Certificates and the terms and conditions on which they may be
issued, transferred, 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. The Warrants shall be evidenced
--------------------
by one or more Warrant Certificates. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase a Warrant Security in the principal amount of ______________.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] 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 its Chairman of the Board (or its Chairman
of the Executive Committee), any Vice Chairman, its President, its principal
financial officer, its principal accounting officer, its general counsel, any
Vice President or its Treasurer, in each case under its corporate seal, which
may but need not be attested by its Secretary or one of its Assistant
Secretaries [, except that the Global Warrant Certificate may be executed by any
such officer
2
without any necessity that such signature be under seal as aforesaid]. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The
corporate 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 Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. [The term "Holder", when used with respect to
the Global Warrant Certificate, shall mean the bearer thereof.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an
3
aggregate principal amount not exceeding _____ aggregate principal amount of
Warrant Securities (except as provided in Sections 2.03, 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing ________ Warrants representing the
right to purchase up to ________ aggregate principal amount of Warrant
Securities and shall[, in the case of Warrant Certificates in registered form,]
deliver such Warrant Certificates to or upon the order of the Company [and, in
the case of the Global Warrant Certificate, upon the order of the Company,
deposit the Global Warrant Certificate with _______________________, as common
depositary (the "Common Depositary") for Xxxxxx Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), and for Centrale de Livraison de Valeurs Mobilieres
S.A. ("CEDEL") for credit to the accounts of persons appearing from time to time
on the records of the Euro-clear Operator or of CEDEL as being entitled to any
portion thereof. [The Global Warrant Certificate shall be held by the Common
Depositary outside the United Kingdom.]] 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 [,
with respect to Warrant Certificates in registered form,] in connection with
their transfer as hereinafter provided or as provided in the antepenultimate
paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the form
of the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary Warrant
Certificates, all as may be determined by the Company with the concurrence of
the Warrant Agent. Such temporary Warrant Certificates may contain such
reference to any provisions of this Warrant
4
Agreement as may be appropriate. Every such temporary Warrant Certificate shall
be executed by the Company and shall be countersigned by the Warrant Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Warrant Certificates [in registered form]. Without
unreasonable delay, the Company shall execute and shall furnish definitive
Warrant Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant to
and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized denominations
evidencing a like aggregate number of Warrants evidenced by such temporary
Warrant Certificates. Until so exchanged, such temporary Warrant Certificates
shall be entitled to the same benefits under this Warrant Agreement as
definitive Warrant Certificates [in registered form].
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On __________, 19__, the exercise price
-------------
of each Warrant will be ____________. During the period from _____________,
19__ through and including _____________, 19__, the exercise price of each
warrant Will be _____ plus ______ [accrued amortization of the original issue
discount] [accrued interest] from ___________, 19__. On _____________, 19__ the
exercise price of each Warrant will be ________. During the period from
___________, 19__ through and including ______________, 19__, the exercise price
of each Warrant will be _____ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19__. [In each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months]. Such exercise price of Warrant Securities is referred to
in this Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ___________].
5
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
--------------------
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [_____________,
19__] and at or before [time, location] on _____________, 19__ (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list of
specific dates] (each, an "Exercise Date")], or such later date as the Company
may designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all rights
of the Holder [and any beneficial owners] of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants
--------------------
evidenced by Warrant Certificates in registered form, during] [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
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [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 (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the Exercise
Date (unless the Exercise Date is after the Regular Record Date (as defined in
the Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable)) to the Warrant Agent at
its corporate trust office at [address] [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 evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed.
6
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may be
exercised by the Holder by presentation to the Warrant Agent at its office at
[address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate (or written confirmation reasonably satisfactory to
the Warrant Agent that the Global Warrant Certificate is held by the Euro-clear
Operator and CEDEL and will be duly endorsed to reflect the exercise of Warrants
by the Euro-clear Operator and CEDEL), (ii) a duly executed certification from
the Euro-clear Operator or CEDEL, as the case may be, substantially in the form
set forth in Exhibit C hereto and (iii) payment in full [in lawful money of the
United States of America] [in applicable currency] [in cash] [by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] of the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)). Notwithstanding the
foregoing, the Holder may exercise Warrants as aforesaid on the Expiration Date
at any time prior to [time] in [city of Warrant Agent's office]. Any Warrants
exercised as set forth in this paragraph shall be deemed exercised at the
[country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or CEDEL
of any certification referred to above may be relied upon by the Company, the
Warrant Agent and the Trustee as conclusive evidence that a corresponding
certificate or certificates substantially in the form of
7
Exhibit D hereto has or have been delivered to the Euro-clear Operator or CEDEL,
as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate may be presented for exercise of the
Warrants represented thereby and notices and demands to or upon the Company in
respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate and the certification of the Euro-clear Operator or CEDEL]
as aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment for the exercise
of Warrants in an account of the Company maintained with it (or in such other
account as may be designated by the Company) and shall advise the Company, by
telephone or by facsimile transmission or other form of electronic communication
available to both parties, at the end of each day on which a payment for the
exercise of Warrants is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed, then,
notwithstanding any other provision of this Agreement or the Warrant Certificate
evidencing such Warrants, but subject to the limitation that no Warrant may be
exercised after the Expiration Date, the Warrants shall be exercisable on the
next succeeding day which in such city is not a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common Depositary
at [both] its London [and location] office[s]] in writing [(which, in the case
of exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate
8
answerback received,)] of (i) the number of Warrants exercised, (ii) the
instructions of each Holder of the Warrant Certificates [in registered form]
evidencing such Warrants [or of the Euro-clear Operator or CEDEL, as the case
may be,] with respect to delivery of the Warrant Securities to be issued upon
such exercise, (iii) delivery of any Warrant Certificates [in registered form]
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably
require. [In addition, in the case of exercised Warrants evidenced by the Global
Warrant Certificate, the Warrant Agent shall, as promptly as practicable,
endorse, or cause the Common Depositary, [location] office, or one of the
Warrant Agent's agents to endorse, Schedule A annexed to the Global Warrant
Certificate to reflect the exercise of such Warrants and, if applicable, return
the Global Warrant Certificate to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], but subject to receipt by the Warrant
Agent of the Warrant Certificate evidencing such Warrant as provided in this
Section, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the Holder of the Warrant Certificate
evidencing each 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 [in registered form] evidencing the number of such Warrants
remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, but, in the case of any Warrant Securities to be
issued in bearer form as provided in this sentence, on the date of the
applicable certification of the Euro-clear Operator or CEDEL referred to in the
second paragraph of this Section 2.03, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euro-clear Operator or CEDEL, as the case may
9
be, to or upon order of the Euro-clear Operator or CEDEL, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euro-clear Operator or CEDEL, as the case may be; provided, however, that no
-------- -------
Warrant Security in bearer form shall be mailed or otherwise delivered to any
location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico.]
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 issuance 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.
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 Certificate or Warrant evidenced
--------------------------------
thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants in
the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen 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, mutilation,
theft or destruction of any Warrant Certificate and of such security or
indemnity as may be required by the Company and the Warrant Agent to hold each
of them and any agent of them harmless and, in the case of mutilation of a
Warrant Certificate, 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
10
in lieu of the lost, mutilated, stolen or destroyed Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants[;
provided, however, that any Global Warrant Certificate shall be so delivered
-------- -------
only to the Common Depositary]. Upon the issuance of any new Warrant Certificate
under this Section, the Company may require the payment of a sum sufficient to
cover any stamp or other 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, mutilated,
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 lost, mutilated, stolen or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
---------------------
provisions of this Agreement, any Holder of a Warrant Certificate [in registered
form or the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant Agent,
the Trustee, the holder of any Offered Securities or the Holder of any other
Warrant Certificate, may, in its own behalf and for its own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, its right to exercise
its Warrants in the manner provided in its Warrant Certificate [or the Global
Warrant Certificate, as the case may be,] and in this Agreement. [Neither the
Company nor the Warrant Agent shall be required to treat any person as a
beneficial owner of any Warrant evidenced by the Global Warrant Certificate
unless such person is so certified as such a beneficial owner by the Euro-clear
Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If
---------------------------------------------
at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the
11
successor or assuming corporation referred to therein shall succeed to and be
substituted for the Company, with the same effect, subject to the Indenture, as
if it had been named herein and in the Warrant Certificates as the Company; the
Company shall thereupon, except in the case of a transfer by way of lease, be
relieved of any further obligation hereunder and under the Warrants and the
Warrant Certificates, and the Company as the predecessor corporation, except in
the case of a transfer by way of lease, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name pursuant to the
Indenture, 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 merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the
---------------------
corporate trust office of the Warrant Agent at [address] [or __________],
Warrant Certificates [in registered form] evidencing Warrants may be exchanged
for Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates
-------- -------
12
shall evidence the same aggregate number of Warrants as the Warrant Certificates
so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ______________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant Certificates
[in registered form] upon surrender of such Warrant Certificates to the Warrant
Agent at its corporate trust office at [address] 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.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], 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.
(d) Whenever any Warrant Certificates [in registered form], 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 [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered form],
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(e) All Warrant Certificates [in registered form], 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 Certificates surrendered for
such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
--------------------------------------------
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing
13
with such Holder as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.] [With respect to Warrant
Certificates in registered form, each] [Each] Holder of a Warrant Certificate,
by accepting the same, consents and agrees with the Company, the Warrant Agent
and every subsequent Holder of such Warrant Certificate that until the transfer
of such Warrant Certificate is registered on the books of such Warrant Agent,
the Company and the Warrant Agent may treat the registered Holder of such
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. (a) Any Warrant
------------------------------------
Certificate surrendered for exchange or 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 cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem [,
as a whole but not in part,] the Warrant Securities pursuant to the Indenture or
the terms thereof, the Company may elect, and shall give notice to the Warrant
Agent of its election, to cancel the unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby. Promptly after receipt of such
notice by the Warrant Agent, the Company shall, or, at the Company's request,
the Warrant Agent shall in the name of and at the expense of the Company, give
notice of such cancellation to the Holders of the Warrant Certificates [in
registered form and to the beneficial owners of the Global Warrant Certificate
(except that such notice shall be required to be published only once)], such
notice to be so given not less than 30 nor more than 60 days prior to the date
fixed for the redemption of the Warrant Securities pursuant to Indenture or the
terms thereof. The unexercised Warrants, the Warrant Certificates and the
rights evidenced thereby
14
shall be cancelled and become void on the 15th day prior to such date fixed for
redemption.
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 and in the
Warrant Certificates 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 herein 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 reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as 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 Agreement and in
---------------------
connection with the Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as
15
agent of the Company and does not assume any obligation 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 in its reasonable judgment, and the 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 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 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 in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.
(f) No Liability for Interest. 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 not be
---------------------------
under any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due authorization to
execute this Agreement and the due execution and delivery hereof by the Warrant
Agent) or with respect to the validity or execution of any Warrant Certificates
(except its countersignature thereof).
16
(h) No Liability for Recitals. The recitals contained herein shall
-------------------------
be taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(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 countersigned 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, to make any demand upon the
Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
----------------------------------------
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date on
which its resignation shall become effective; provided, however, that such date
-------- -------
shall be not less than 90 days after the date on which such notice is given
unless the Company agrees to accept shorter notice. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction
17
of its organization to exercise corporate trust powers) by written instrument in
duplicate signed on behalf of the Company, one copy of which shall be delivered
to the resigning Warrant Agent and one copy to the successor Warrant Agent. The
Company may, at any time and for any reason, remove the Warrant Agent and
appoint a successor Warrant Agent (qualified as aforesaid) by written instrument
in duplicate signed on behalf of the Company and specifying such removal and the
date when it is intended to become effective, one copy of which shall be
delivered to the Warrant Agent being removed and one copy to the successor
Warrant Agent. Any resignation or removal of the Warrant Agent and any
appointment of a successor Warrant Agent shall become effective upon acceptance
of appointment by the successor Warrant Agent as provided in this subsection
(b). In the event a successor Warrant Agent has not been appointed and accepted
its duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. Upon its resignation or removal, the
Warrant Agent shall be entitled to the payment by the Company of the
compensation and to the reimbursement of all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by it hereunder as agreed to in
Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
18
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor 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 and the terms of the
---------
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, 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 affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
19
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 Fortune Brands, Inc., 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxxx
00000-0000, Attention: Treasurer (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 hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
----------------------
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. 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 Approval. The Company will
----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including 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 Certificates, the exercise of the Warrants, the
issuance, sale, transfer and
20
delivery of the Warrant Securities issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. [Except
---------------------------------------------
as otherwise provided in Section 3.03, nothing] [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.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders
------------------------------
of Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
FORTUNE BRANDS, INC.
[SEAL] By________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
[WARRANT AGENT]
[SEAL] By________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
22
Exhibit A
---------
FORM OF WARRANT CERTIFICATE [IN REGISTERED FORM]
[Face of Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON , 19
No.___ _______ Warrants
This certifies that or registered assigns
(the "Registered Holder") is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner to purchase, at any time [after
5:00 P.M., New York City time, on , 19 and] on or before 5:00 P.M.,
New York City time, on , 19 , principal amount of [Title
of Warrant Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the
"Company") issued and to be issued under the Indenture (as hereinafter defined),
on the following basis: [on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including ,19 , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from
, 19 ; on , 19 the exercise price of each Warrant will be
; during the period from 19 through and including , 19 , the
exercise price of each Warrant will be plus [accrued amortization of the
original issue discount] [accrued interest] from 19 [; in each case, the
original issue discount will be amortized at a % annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each principal amount of Warrant Securities is .] The Registered
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 applicable currency] [in cash] [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 (plus accrued interest, if any, on the
Warrant Securities to be issued upon exercise of such Warrant from and including
the Interest Payment Date (as defined in the Indenture), if any, in respect of
such Warrant Securities immediately preceding the Exercise Date to and including
the Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable)) to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the form of election to purchase on the reverse hereof
completed and duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor, as warrant agent (the "Warrant Agent"), [or ]
currently 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).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in fully registered form in
denominations of ____ and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Registered Holder hereof a new Warrant Certificate in
registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________ 19__ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Registered Holder consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and [The Chase Manhattan Bank], as Trustee
(the "Trustee"), and will be subject to the terms and provisions contained in
the Indenture. Copies of the Indenture and the form of the Warrant Securities
are
A-2
on file at the corporate trust office of the Trustee [and at ].
This Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ] by the Registered
Holder or its assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant Agreement.
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 in registered form representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the Registered Holder
hereof to any of the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of principal of (premium, if
any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.
A-3
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
[SEAL] By_____________________________
Name:
Title:
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
A-4
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the Registered Holder must
pay in full [in lawful money of the United States of America] [in applicable
currency] [in cash] [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 Warrants exercised (plus any accrued interest as
specified in this Warrant Certificate) 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
Registered Holder and the number of Warrants exercised by such Registered
Holder. In addition, the Registered 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 principal amount of
the [Title of Warrant Securities] (the "Warrant Securities") of Fortune Brands,
Inc. and represents that he has tendered payment for such Warrant Securities [in
lawful money of the United States of America) [in applicable currency] [in cash]
[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
Fortune Brands, 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 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 fewer than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued in registered
A-5
form and delivered either to the undersigned or as otherwise specified in the
instructions below.
Dated_____________________ Name _____________________
(Please Print)
__________________________
(Insert Social Security Address __________________
or Other Identifying
Number of Holder) __________________
Signature ________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at _____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
By mail at _____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
[Instructions as to delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
A-6
Assignment
(Form of Assignment to be Executed if Holder
Desires to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED hereby sells, assigns and transfers
unto
Please insert social security
or other identifying number
-------------------------------
________________________________
___________________________________________________________________
(Please print name and address including zip code)
___________________________________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and
appoint ______________________ Attorney, to transfer said Warrant Certificate on
the books of the Warrant Agent with full power of substitution in the premises.
Dated: _________________________________
Signature
(Signature must conform in all respects
to name of Registered 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, Midwest
or Pacific Stock Exchange).
Signature Guaranteed
_________________________
A-7
Exhibit B
---------
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF GLOBAL WARRANT CERTIFICATE IN BEARER FORM]
[Face of Global Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
GLOBAL WARRANT CERTIFICATE REPRESENTING _________
WARRANTS TO PURCHASE OF UP TO ________
PRINCIPAL AMOUNT OF [Title of Warrant Securities]
VOID AFTER [TIME], ON , 19 .
This Global Warrant Certificate evidences warrants (the "Warrants")
representing the right to purchase, subject to the terms and conditions hereof
and of the Debt Warrant Agreement referred to below, at any time [after [time]
on ___________ 19___, and] on or before the [time] in [location] on __________,
19___, up to _________ aggregate principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the "Company")
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: on _________, 19__ the exercise price of each Warrant will be
__________; during the period from ___________, 19___ through and including
_______, 19___, the exercise price of each Warrant will be _____ plus [accrued
amortization of the original issue discount] [accrued interest] from
_____________, 19___; on _____________, 19___ the exercise price of each Warrant
will be _____________; during the period from ___________, 19___ through and
including ___________, 19___, the exercise price of each Warrant will be
___________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________, 19___ [; in each case, the original issue discount
will be amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months]
(the "Warrant Price"). [The original issue discount for each ____ principal
amount of Warrant Securities is ____________.] Beneficial owners of Warrants
represented by this Global Warrant Certificate may cause such Warrants to be
exercised only by transmitting by tested telex or by delivering or causing to be
delivered to Xxxxxx Guaranty Trust Company of New York, Brussels office (or any
successor), as operator of the Euro-clear System (the "Euro-clear Operator"), in
Brussels, Belgium, or to Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") in Luxembourg, a warrant exercise notice, substantially in the form
attached as Exhibit D to the Debt Warrant Agreement referred to below (the
"Warrant Exercise Notice"), copies of which will be available from the Euro-
clear Operator or CEDEL or from [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent") under the Debt Warrant Agreement (the "Debt
Warrant Agreement") dated as of __________, 19___ between the Company and the
Warrant Agent. The Warrant Exercise Notice shall specify, among other things,
the aggregate principal amount of Warrant Securities to be purchased on exercise
of the Warrants, the account number or numbers on the records of the Euro-clear
Operator or CEDEL to which the Warrants being exercised are credited, the
account number to be debited for the Warrant Price of each Warrant being
exercised (plus accrued interest, if any, on the Warrant Securities to be issued
upon exercise of such Warrant from and including the Interest Payment Date (as
defined in the Indenture), if any, in respect of such Warrant Securities
immediately preceding the Exercise Date to and including the Exercise Date
(unless the Exercise Date is after the Regular Record Date (as defined in the
Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable in respect of Warrant
Securities to be issued in registered form)) the account number to which the
Warrant Securities issued on exercise of the Warrants are to be credited and the
form in which Warrant Securities are to be issued. A Warrant Exercise Notice
must be received by the Euro-clear Operator or CEDEL prior to [time] (Brussels
or Luxembourg time, as the case may be) on the business day next preceding the
Exercise Date (as defined in such Warrant Exercise Notice). The delivery to the
Euro-clear Operator or CEDEL, as the case may be, of a Warrant Exercise Notice
shall constitute an irrevocable election to purchase the aggregate principal
amount of Warrant Securities specified therein.
Any whole number of Warrants evidenced by this Global Warrant
Certificate may be exercised to purchase Warrant Securities in bearer or
registered form in
B-2
denominations of [____ or ____], in the case of Warrant Securities in bearer
form, and of _______ and any integral multiple thereof, in the case of Warrant
Securities in registered form; provided, however, that no Warrant Security in
-------- -------
bearer form shall be mailed or otherwise delivered to any location in the United
States of America, its territories or possessions or areas subject to its
jurisdiction or the Commonwealth of Puerto Rico (the "United States").
The Warrants evidenced by this Global Warrant Certificate, this Global
Warrant Certificate and the rights evidenced hereby may be cancelled in the
manner and under the circumstances described in the Debt Warrant Agreement.
Notice of cancellation of the Warrants evidenced by this Global Warrant
Certificate, this Global Warrant Certificate and the rights evidenced hereby
shall be given by publication in the manner described in the Debt Warrant
Agreement.
This Global Warrant Certificate is issued under and in accordance with
the Debt Warrant Agreement between the Company and the Warrant Agent and is
subject to the terms and provisions contained in the Debt Warrant Agreement, to
all of which terms and provisions the holder hereof consents by acceptance
hereof. Copies of the Debt Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ___________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Global Warrant Certificate will be issued under
and in accordance with an Indenture dated as of [ ], 1999, as amended
(the "Indenture"), between the Company and [The Chase Manhattan Bank], as
Trustee (the "Trustee"), and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture and the form of the Warrant
Securities are on file at the corporate trust office of the Trustee [and at
____________].
The Global Warrant Certificate, and all rights hereunder, may be
transferred by delivery, and the Company and the Warrant Agent may treat the
holder hereof as the owner for all purposes.
The Global 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 principal of, premium, if any, or
B-3
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
This Global Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________, 19__.
FORTUNE BRANDS, INC.
By
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
B-4
Schedule A
(additional continuation sheets may be attached
if required)
Exercises of Warrants
The following exercises of a portion of this Global Warrant Certificate for
Warrant Securities have been made:
Number of Warrants Remaining Number of
Date of Exercised for Warrants Following Notation
Exercise Warrant Securities Such Exercise Made By:
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
B-5
Number of Warrants Remaining Number of
Date of Exercised for Warrants Following Notation
Exercise Warrant Securities Such Exercise Made By:
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
-------- ------------------ ------------------- --------
B-6
EXHIBIT C
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CERTIFICATE TO BE DELIVERED TO WARRANT AGENT
BY THE EURO-CLEAR OPERATOR OR CEDEL]
FORTUNE BRANDS, INC.
Warrants (the "Warrants") to Purchase
[Title of Warrant Securities]
[Name of Warrant Agent]
[Address]
Dear Sirs:
The undersigned hereby irrevocably elects to exercise
__________________ Warrants to purchase as of _____________________ (the
"Exercise Date") ______ principal amount of the [Title of Warrant Securities]
(the "Warrant Securities") of Fortune Brands, Inc. and represents that it has
tendered payment for such Warrant Securities [in lawful money of the United
States of America] [in applicable currency] [in cash] [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 Fortune Brands, Inc.,
c/o [insert name and address of Warrant Agent], in the amount of ______ in
accordance with the terms hereof and the Debt Warrant Agreement dated as of
_________, 19__ between Fortune Brands, Inc. and you (the "Debt Warrant
Agreement").
In connection with the Undersigned's request that you deliver to us
any Warrant Securities in bearer form, the undersigned hereby certifies that as
of the date hereof, and except as set forth below, the Warrant Securities in
bearer form which are to be delivered to the Common Depositary referred to below
for our account (i) are being acquired by a person that is not a citizen or
resident of the United States, a domestic partnership, a domestic corporation or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source (a "United States person"), (ii) are
being acquired by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
Section l.165-12(c)(l)(v)(a "financial
institution"), purchasing for its own account or for resale, or (B) a United
States person acquiring the Warrant Securities through the foreign branch of a
financial institution on the date hereof (and in either case (A) or (B), the
financial institution hereby agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are being acquired by a financial
institution for purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and such financial
institution is not acquiring the Warrant Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As a clearing organization within the meaning of Section 1.163-
5(c)(2)(i)(D)(8) of the regulations promulgated under the Internal Revenue Code
of 1986, as amended, the undersigned further certifies that (a) the above
certification is based solely on statements received from member organizations
appearing in our records (our "Account Holders") in certificates in the form set
forth in Exhibit D to the Debt Warrant Agreement and (b) as of the date hereof
we have not received any notification from any of our Account Holders to the
effect that the statements made by such Account Holders in such certificates are
no longer true.
"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
We hereby undertake to notify you immediately by telex if any of the
statements of our Account Holders referred to above is not correct at any time
on or before the Warrant Securities in bearer form are delivered. We further
agree to cause [a confirmation substantially in the form of Exhibit E to the
Debt Warrant Agreement and] a copy of the prospectus relating to the Warrant
Securities delivered to us as contemplated by Section 6.05 of the Debt Warrant
Agreement to be delivered to our Account Holders entitled to such warrant
Securities prior to or contemporaneously with our transfer of such Warrant
Securities to or to the account of such Account Holders.
We understand that this Certificate is required in connection with
United States laws, tax laws and regulations. We irrevocably authorize you to
produce this
C-2
Certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this Certificate.
The undersigned requests that said principal amount of Warrant
Securities be [in registered form in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below] [bearer form in the authorized denominations and delivered to
_______, as Common Depositary under the Debt Warrant Agreement, to be held for
our account]* [Instructions as to delivery of Warrant Securities to be issued in
registered form].
Dated: _______________, 19__/**/
Very truly yours,
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as operator of the Euro-clear
System]/*/
By_____________________________________________
Title:
[CENTRALE DE LIVRAISONS DE VALEURS MOBILIERES
S.A.]*
By_____________________________________________
Title:
___________________
* Delete inapplicable reference.
** To be dated no earlier than the fifteenth day prior to the certification
date.
C-3
Exhibit D
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF WARRANT EXERCISE NOTICE]
Xxxxxx Guaranty Trust Company
of New York, Brussels Office,
as operator of the Euro-clear
System*
[Address]
Centrale de Livraison de
Valeurs Mobilieres S.A./*/
[Address]
FORTUNE BRANDS, INC.
WARRANTS (THE "WARRANTS") TO PURCHASE
[Title of Warrant Securities]
(the "Warrant Securities")
Dear Sirs:
We hereby irrevocably elect to exercise ____________ Warrants to
purchase _____ (being _____ or an integral multiple thereof) aggregate principal
amount of Warrant Securities of Fortune Brands, Inc. (the "Company") on
_____________________, 19__ (the "Exercise Date"). The account number(s) on
your books in which the Warrants being exercised [and the [Title of Offered
Securities] to which such Warrants are attached]/**//*/ are held is (are)
_______ __________________. The Warrant Securities to be issued to us on
exercise of the Warrants are to be credited to such account, unless otherwise
indicated below and shall be in [registered] [bearer]* form in the following
authorized denominations: ________________.
We hereby request that you complete a certification in the form
required by the Debt Warrant Agreement hereinafter referred to make payment
directly to [ ], as Warrant Agent (the "Warrant Agent",
/*/ Delete inapplicable reference.
/**/ Delete if dated on or after , 19 .
which term shall include its successors as such Warrant Agent), under the Debt
Warrant Agreement dated as of [ ] between the Company and the Warrant Agent (the
"Debt Warrant Agreement") at or prior to [time] on the Exercise Date, or if the
Exercise Date is the last day on which Warrants may be exercised under the Debt
Warrant Agreement, prior to [time] in [location] on the Exercise Date, [in
lawful money of the United States of America] [in applicable currency] [in cash]
[by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] [in immediately available funds] of
_____________, such amount being the Warrant Price (as defined in the Global
Warrant Certificate representing the Warrants, as provided in Section 1.02 of
the Debt Warrant Agreement) for Warrants exercised (plus any accrued interest as
specified in such Global Warrant Certificate) on the Exercise Date, and debit
account number ____________ for said amount.
The undersigned hereby certifies that as of the date hereof, and
except as set forth below, the Warrant Securities held by you for our account
are being acquired by a person that is not a citizen or resident of the United
States, a domestic partnership, a domestic corporation or an estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source (a "United States person"), (ii) are being acquired by a United
States person that is (A) the foreign branch of a United States financial
institution (as defined in U.S. Treasury Regulations Section l.165-
12(c)(l)(v))(a "financial institution"), purchasing for its own account or for
resale, or (B) a United States person who is acquiring the Warrant Securities
through the foreign branch of a financial institution on the date hereof (and in
either case (A) or (B), the financial institution hereby agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are being
acquired by a financial institution for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and such financial institution is not acquiring the Warrant Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions. If this Certificate is
being provided by a clearing organization, it is based on statements provided to
it by its member organizations. As used herein, a "clearing organization" is an
entity which is in the business of holding obligations for member organizations
and transferring obligations among such members by credit or
D-2
debit to the account of a member without the necessity of physical delivery of
the obligation.
We undertake to advise you immediately by telex if the foregoing
statement as to beneficial ownership is not correct on or before the date of
delivery of such Warrant Securities as to the entire principal amount of the
Warrant Securities to be issuable upon exercise then appearing on your books as
being held for our account, and in the absence of any such notification it may
be assumed that this Certificate applies as of such date.
[This Certificate excepts and does not relate to [ ] of such
interest in the above Warrants in respect of which we are not able to certify
and as to which we understand exchange and delivery of Warrant Securities cannot
be made until we do so certify.]
We understand that this Certificate is required in connection with
certain tax regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
Certificate is or would be relevant, we irrevocably authorize you to produce
this Certificate or a copy thereof to any interested party in such proceedings.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction and the Commonwealth of Puerto
Rico.
Dated: ______________, l9__/*/
Very truly yours,
[Name and, if appropriate, title]
As, or as agent for, the
beneficial owner(s) of the
interest in the Warrants to which
this Warrant Exercise Notice
relates.
By______________________________
Title:
_____________
/*/ To be dated no earlier than the fifteenth day prior to the certification
date.
D-3
