XXXXXX XXXXXXX GROUP INC.
and
THE CHASE MANHATTAN BANK, Warrant Agent
-------------------
UNIVERSAL WARRANT AGREEMENT
dated as of January 24, 1997
TABLE OF CONTENTS
Page
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ARTICLE 1
Universal Warrants
Section 1.01. Ranking.......................................... 1
Section 1.02. Form, Execution and Delivery of Warrant
Certificates..................................... 1
Section 1.03. Number Unlimited; Issuable in Series............. 3
Section 1.04. Countersignature and Delivery of Warrant
Certificates..................................... 5
Section 1.05. Place of Exercise; Registration of Transfers and
Exchanges....................................... 8
Section 1.06. Mutilated or Missing Warrant Certificates........ 12
Section 1.07. Registered Holders............................... 13
Section 1.08. Cancellation..................................... 13
Section 1.09. Additional Warrant Agents........................ 14
Section 1.10. Appointment of Calculation Agents................ 14
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.01. Duration and Exercise of Universal Warrants...... 15
Section 2.02. Return of Money Held Unclaimed for Two Years..... 15
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.01. Warrantholder May Enforce Rights................. 15
Section 3.02. No Rights as Holder of Warrant Property
Conferred by Universal Warrants or
Warrant Certificates............................ 15
Section 3.03. Merger, Consolidation, Conveyance or Transfer.... 16
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.01. Universal Warrants Acquired by the Company...... 16
Section 4.02. Payment of Taxes................................ 17
ARTICLE 5
Concerning the Warrant Agent
Section 5.01. Warrant Agent................................... 17
Section 5.02. Condition of Warrant Agent's Obligations........ 17
Section 5.03. Resignation and Appointment of Successor........ 19
ARTICLE 6
Miscellaneous
Section 6.01. Amendment....................................... 21
Section 6.02. Notices and Demands to the Company and the
Warrant Agent.................................. 22
Section 6.03. Addresses for Notices........................... 23
Section 6.04. Notices to Warrantholders....................... 23
Section 6.05. Obtaining of Approvals.......................... 23
Section 6.06. Persons Having Rights under this Agreement...... 23
Section 6.07. Inspection of Agreement......................... 24
Section 6.08. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein............. 24
Section 6.09. Payments Due on Saturdays, Sundays and
Holidays....................................... 25
Section 6.10. Judgment Currency............................... 25
Section 6.11. Headings........................................ 25
Section 6.12. Counterparts.................................... 26
Section 6.13. Applicable Law.................................. 26
TESTIMONIUM........................................................ 26
SIGNATURES......................................................... 26
Exhibit I Form of Registered Call Warrant Certificate
Exhibit II Form of Registered Put Warrant Certificate
WARRANT AGREEMENT
THIS AGREEMENT, dated as of January 24, 1997, between
XXXXXX XXXXXXX GROUP INC., a corporation organized and existing under the laws
of the State of Delaware (the "Company"), and THE CHASE MANHATTAN BANK, a New
York banking corporation (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time to
time of warrants (the "Universal Warrants") to purchase or sell (i) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (ii)
currencies or composite securities or (iii) commodities (the property described
in clauses (i), (ii) and (iii), in relation to a Universal Warrant, being
hereinafter referred to as the "Warrant Property" applicable to such Universal
Warrant) to be issued in one or more series and in such number and with such
terms as may from time to time be authorized in accordance with the terms of
this Agreement;
WHEREAS, the Company has duly authorized the execution and
delivery of this Agreement to provide, among other things, for the delivery and
administration of the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid
agreement according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Universal Warrants
Section 1.01. Ranking. The Universal Warrants are unsecured
contractual obligations of the Company and will rank pari passu with the
Company's other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
Section 1.02. Form, Execution and Delivery of Warrant
Certificates. (a) Certificates ("Warrant Certificates") evidencing the Universal
Warranties of each series shall be substantially in the form of Exhibits I and
II hereto or in such form (not inconsistent with this Agreement) as shall be
established by or pursuant to one or more Board Resolutions (as defined below)
(as set forth in a Board Resolution or, to the extent established pursuant to,
rather than set forth in, a Board Resolution, in an Officer's Certificate (as
defined below) detailing such establishment) or in one or more agreements
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement. The Warrant Certificates may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification or designation
and such legends or endorsements as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and that 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 self-regulatory organization (an
"SRO") on which the Universal Warrants of such series may be listed, or of any
securities depository, or to conform to usage. Warrant Certificates shall be
signed on behalf of the Company by the chairman or vice chairman of the Board of
Directors, the president, the chief financial officer, the treasurer or any
managing director of the Company or such other person specifically designated by
the Board of Directors or the Executive Committee thereof to execute Warrant
Certificates, which signature may or may not be attested by the secretary or an
assistant secretary of the Company. The signature of any of such officers may be
either manual or facsimile. Typographical and other minor errors or defects in
any such signature shall not affect the validity or enforceability of any
Warrant Certificate that has been duly countersigned and delivered by the
Warrant Agent.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the
Company or any committee of such Board duly authorized to act on its behalf for
the purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chief
financial officer, the treasurer or any managing director of the Company or such
other person specifically designated by the Board of Directors to execute any
such certificate and delivered to the Warrant Agent. Without limiting the
generality of the foregoing, if the Universal Warrants of any series are to be
issued as components of a unit ("Unit") with one or more other securities of the
Company, an officer's certificate or similar certificate relating to the
Universal Warrants delivered pursuant to an indenture or unit agreement or
similar agreement governing such Units or one or more other components thereof
may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be such
officer of the Company; and a Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any
such person was not such officer.
(c) Pending the preparation of final Warrant Certificates
evidencing Universal Warrants of any series, the Company may execute and the
Warrant Agent shall countersign and deliver temporary Warrant Certificates
evidencing such Universal 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 final Warrant Certificates 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 final Warrant Certificates. Without unreasonable delay,
the Company shall execute and shall furnish final Warrant Certificates and
thereupon such temporary Warrant Certificates may be surrendered in exchange
therefor without charge, and the Warrant Agent shall countersign and deliver in
exchange for such temporary Warrant Certificates final Warrant Certificates
evidencing a like aggregate number of Universal Warrants of the same series and
of like tenor as those evidenced by such temporary Warrant Certificates. Until
so exchanged, such temporary Warrant Certificates and the Universal Warrants
evidenced thereby shall be entitled to the same benefits under this Warrant
Agreement as final Warrant Certificates and the Universal Warrants evidenced
thereby.
Section 1.03. Number Unlimited; Issuable in Series. (a) The
aggregate number of Universal Warrants that may be delivered under this
Agreement is unlimited.
(b) The Universal Warrants may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions (and
to the extent established pursuant to, rather than set forth in, a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more agreements supplemental hereto, prior to the initial
issuance of Universal Warrants of any series;
(1) the designation of the Universal Warrants of the series, which
shall distinguish the Universal Warrants of the series from the Universal
Warrants of all other series;
(2) any limit upon the aggregate number of the Universal Warrants
of the series that may be countersigned and delivered under this Agreement
(except for Universal Warrants countersigned and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Universal Warrants of the
series);
(3) the specific Warrant Property purchasable or salable upon
exercise of the Universal Warrants of the series, and the amount thereof (or the
method for determining the same);
(4) the price at which the Universal Warrants of the series
will be issued and, if other than U.S. dollars, the coin or currency or
composite currency in which such issue price will be payable;
(5) whether the Universal Warrants of the series are warrants to
purchase ("call warrants") or warrants to sell ("put warrants") the Warrant
Property;
(6) the price at which and, if other than U.S. Dollars, the coin
or currency or composite currency with which the Warrant Property may be
purchased or sold upon exercise of the Universal Warrants of the series (or the
method for determining the same);
(7) whether the exercise price for the Universal Warrants of the
series may be paid in cash or by the exchange of any other security of the
Company, or both, or otherwise, and the method of exercise of the Universal
Warrants of the series;
(8) whether the exercise of the Universal Warrants of the
series is to be settled in cash or by delivery of the Warrant Property or
both, or otherwise;
(9) the date on which the right to exercise the Universal Warrants
of the series shall commence and the date (the "Expiration Date") on which such
right shall expire or, if the Universal Warrants of the series are not
continuously exercisable throughout such period, the specific date or dates on
which they will be exercisable;
(10) whether the Warrant Certificates representing the Universal
Warrants of the series will be in registered form ("Registered Warrants") or
bearer form ("Bearer Warrants") or both;
(11) whether the Warrant Certificates evidencing any Registered
Warrants or Bearer Warrants of the series will be issued in global form ("Global
Warrant Certificates") or definitive form ("Definitive Warrant Certificates") or
both, and whether and on what terms (if different from those set forth herein)
Warrant Certificates in one form may be converted into or exchanged for Warrant
Certificates in the other form;
(12) any warrant agents, depositaries, authenticating or paying
agents, transfer agents or registrars or any determination or calculation agents
or other agents with respect to Universal Warrants of the series;
(13) whether the Universal Warrants of the series will be issued
separately or together as a unit (a "Unit") with one or more other securities of
the Company or any other person and, if the Universal Warrants of the series are
to be issued as components of Units, whether and on what terms the Universal
Warrants of the series may be separated from the other components of such Units
prior to the Expiration Date of such Universal Warrants; and
(14) any other terms of the Universal Warrants of the series (which
terms shall not be inconsistent with the provisions of this Agreement).
(c) All Universal Warrants of any one series shall be
substantially identical, except as may otherwise be provided by or pursuant to
the Board Resolution or Officer's Certificate referred to above or as set forth
in any such agreement supplemental hereto. All Universal Warrants of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
Section 1.04. Countersignature and Delivery of Warrant
Certificates. (a) The Company may deliver Warrant Certificates evidencing
Universal Warrants of any series executed by the Company to the Warrant Agent
for countersignature together with the applicable documents referred to below in
this Section, and the Warrant Agent shall thereupon countersign and deliver such
Warrant Certificates to or upon the order of the Company (contained in the
Issuer Order (as defined below) referred to below in this Section) or pursuant
to such procedures acceptable to the Warrant Agent as may be specified from time
to time by an Issuer Order. Any terms of the Universal Warrants evidenced by
such Warrant Certificates may be determined by or pursuant to such Issuer Order
or such other procedures. If provided for in such procedures, such Issuer Order
may authorize countersignature and delivery pursuant to oral instructions from
the Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In countersigning such Warrant Certificates and accepting
the responsibilities under this Agreement in relation to the Universal Warrants
evidenced by such Warrant Certificates, the Warrant Agent shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or before the
time of the first request of the Company to the Warrant Agent to countersign
Warrant Certificates in a particular form evidencing Universal Warrants) and
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such countersignature and setting
forth delivery instructions if the Warrant Certificates are not to be delivered
to the Company;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental agreement pursuant to which the forms and terms of the Universal
Warrants evidenced by such Warrant Certificates were established;
(3) an Officer's Certificate setting forth the forms and terms of
the Universal Warrants evidenced by such Warrant Certificates stating that the
form or forms and terms of the Universal Warrants evidenced by such Warrant
Certificates have been established pursuant to Sections 1.02 and 1.03 and comply
with this Agreement, and covering such other matters as the Warrant Agent may
reasonably request; and
(4) At the option of the Company, either an Opinion of Counsel (as
defined below) or a letter addressed to the Warrant Agent permitting it to rely
on an Opinion of Counsel, substantially to the effect that:
(i) the forms of the Warrant Certificates have been duly
authorized and established in conformity with the provisions of this
Agreement;
(ii) in the case of an underwritten offering, the terms of the
Universal Warrants have been duly authorized and established in conformity with
the provisions of this Agreement and, in the case of an offering that is not
underwritten, certain terms of the Universal Warrants have been established
pursuant to a Board Resolution, an Officer's Certificate or a supplemental
agreement in accordance with this Agreement, and when such other terms as are to
be established pursuant to procedures set forth in an Issuer Order shall have
been established, all terms will have been duly authorized by the Company and
will have been established in conformity with the provisions of this Agreement;
and
(iii) when the Warrant Certificates have been executed by the
Company and countersigned by the Warrant Agent in accordance with the provisions
of this Agreement and delivered to and duly paid for by the purchasers thereof,
subject to such other conditions as may be set forth in such opinion of counsel,
they will have been duly issued under this Agreement and the Universal Warrants
evidenced thereby will be valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, and will be entitled to
the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of
jurisdictions other than the State of New York and the federal law of
the United States, upon opinions of other counsel (copies of which
shall be delivered to the Warrant Agent), who shall be counsel
reasonably satisfactory to the Warrant Agent, in which case the opinion
shall state that such counsel believes he and the Warrant Agent are
entitled so to rely. Such counsel may also state that, insofar as such
opinion involves factual matters, such counsel has relied, to the
extent such counsel deems proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
"Issuer Order" means a written statement, request or order of the
Company signed in its name by the chief financial officer, the
treasurer or any managing director of the Company or such other person
specifically designated by the Board of Directors to execute any such
written instrument, request or order. Without limiting the generality
of the foregoing, if the Universal Warrants of a series are issued as
components of Units, an issuer order or similar order relating to the
Universal Warrants delivered pursuant to an indenture or unit or
similar agreement governing such Units or one or more other components
thereof may also constitute an Issuer Order under this Agreement if
addressed to the Warrant Agent.
"Opinion of Counsel" means an opinion in writing signed by the
General Counsel of the Company or by such other legal counsel, who may be an
employee of or counsel to the Company, and who shall be satisfactory to the
Warrant Agent.
(b) The Warrant Agent shall have the right to decline to
countersign and deliver any Warrant Certificates under this Section if the
Warrant Agent, being advised by counsel, determines that such action may not
lawfully be taken by the Company or if the Warrant Agent in good faith
determines that (i) such action would expose the Warrant Agent to personal
liability to existing registered or beneficial holders of Universal Warrants
(each, a "Warrantholder") or would affect the Warrant Agent's own rights, duties
or immunities under the Warrant Certificates, the Universal Warrants, this
Agreement or otherwise or (ii) the terms of such Universal Warrants are
administratively unacceptable to it.
(c) If the Company shall establish pursuant to Section 1.03 that
the Universal Warrants of a series are to be evidenced in whole or in part by
one or more Global Warrant Certificates, then the Company shall execute and the
Warrant Agent shall, in accordance with this Section and the Issuer Order with
respect to such series, countersign and deliver one or more Global Warrant
Certificates that (i) shall evidence all or part of the Universal Warrants of
such series issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary (as defined below) for such Universal Warrants or
the nominee of such Depositary, (iii) shall be delivered by the Warrant Agent to
such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Universal Warrants in definitive registered
form, this Warrant Certificate and the Universal Warrants evidenced hereby may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants of any
series that are or may be evidenced by one or more Global Warrant Certificates,
the person or persons designated as Depositary by the Company pursuant to
Section 1.03 hereof until a successor Depositary shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Depositary"
shall mean or include each person who is then a Depositary hereunder, and if at
any time there is more than one such person, "Depositary" as used with respect
to the Universal Warrants of any such series shall mean the Depositary with
respect to that series.
(d) If so required by applicable law, each Depositary for a
series of Universal Warrants must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose, and
no Universal Warrant evidenced thereby shall be exercisable, unless and until
such Warrant Certificate has been countersigned by the manual signature of an
authorized officer of the Warrant Agent. Such countersignature by an authorized
officer of the Warrant Agent upon any Warrant Certificate executed by the
Company in accordance with this Agreement shall be conclusive evidence that the
Warrant Certificate so countersigned and the Universal Warrants evidenced
thereby have been duly issued hereunder.
Section 1.05. Place of Exercise; Registration of Transfers and
Exchanges.
(a) Except as otherwise established pursuant to Section 1.03 with
respect to Universal Warrants of a series, Universal Warrants may be presented
for exercise at the Warrant Agent's Window (as defined below) in accordance with
procedures to be established pursuant to Section 1.03.
(b) Except as otherwise provided herein or as established
pursuant to Section 1.03 with respect to the Universal Warrants of a series, the
Warrant Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as
defined below), subject to such reasonable regulations as the Company or the
Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined below),
Attention: Transfer Department, duly endorsed by, or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Company duly executed by, the Registered Holder(s) (as defined below)
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by a bank or trust company
with a correspondent office in The City of New York or by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. (the
"NASD") or by a member of a national securities exchange or in such other manner
acceptable to the Warrant Agent and the Company. Upon any such registration of
transfer, one or more new Warrant Certificates of the same series and like terms
evidencing a like number of unexercised Universal Warrants shall be issued to
the transferee(s) and the surrendered Warrant Certificate shall be cancelled by
the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.03, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. The "Warrant Agent's Window"
shall be the window of the Warrant Agent maintained for purposes of transfer and
tender in the Borough of Manhattan, The City of New York (or at the address of
any additional agency established by the Company pursuant to Section 1.08
hereof, or at the address of any successor Warrant Agent (as provided in Section
5.03)), which is, on the date of this Agreement, The Chase Manhattan Bank,
Corporate Trust Securities Window, 00 Xxxxx Xxxxxx, Room 000, Xxxxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. If the Universal Warrants of any series are issued in
both registered and unregistered form, except as otherwise established for such
series pursuant to Section 1.03, at the option of the holder thereof, Warrant
Certificates evidencing Bearer Warrants of any series may be exchanged for
Definitive Warrant Certificates evidencing an equal number of unexercised
Registered Warrants of the same series and of like tenor upon surrender of such
Warrant Certificates evidencing Bearer Warrants to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. Unless otherwise established for
such series pursuant to Section 1.03, Registered Warrants of any series may not
be exchanged for Bearer Warrants of such series. Upon surrender of any
unexercised Warrant Certificate for exchange, the Warrant Agent shall cancel
such Warrant Certificate, and the Company shall execute, and the Warrant Agent
shall countersign and deliver, one or more new Warrant Certificates evidencing a
like number of unexercised Universal Warrants of the same series and of like
tenor.
(d) Universal Warrants evidenced by the Warrant Certificates
issued upon transfer or exchange pursuant to paragraph (b) or (c) of this
Section shall be valid obligations of the Company, constituting the same
obligations of the Company as the Universal Warrants evidenced by the Warrant
Certificates surrendered for transfer or exchange, and entitled to the same
benefits under this Agreement as were such Universal Warrants evidenced by the
Warrant Certificates prior to such surrender.
(e) Except as provided in Section 1.06, no service charge shall
be made for any registration of transfer or exchange of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Warrant Certificates, other than
exchanges pursuant to this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof (or,
in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless
and until it is exchanged in whole or in part for Definitive Warrant
Certificates, a Global Warrant Certificate evidencing all or a portion of the
Universal Warrants of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be eligible under this Agreement, the Company shall appoint a
successor Depositary with respect to such series. If a successor Depositary for
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 1.03 that such series be evidenced by one or more
Global Warrant Certificates shall no longer be effective and the Company will
execute, and the Warrant Agent, upon receipt of an Officer's Certificate for the
countersignature and delivery of Definitive Warrant Certificates evidencing
Universal Warrants of such series, will countersign and deliver Definitive
Warrant Certificates evidencing Universal Warrants of such series and of like
tenor in an aggregate number equal to the number of the unexercised Universal
Warrants represented by such Global Warrant Certificate or Certificates in
exchange for such Global Warrant Certificate or Certificates.
(j) If established pursuant to Section 1.03 with respect to a
series of Universal Warrants evidenced in whole or in part by one or more Global
Warrant Certificates, the Depositary for such series may surrender such Global
Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same series
and of like tenor on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Warrant Agent shall
countersign and deliver, without service charge,
(1) to the person specified by such Depositary a new Definitive
Warrant Certificate of the same series and of like tenor in an aggregate number
equal to and in exchange for such person's beneficial interest in the Universal
Warrants evidenced by such Global Warrant Certificate or Certificates; and
(2) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same series and of like tenor
in number equal to the difference, if any, between the number of unexercised
Universal Warrants evidenced by the surrendered Global Warrant Certificates and
the number of unexercised Universal Warrants evidenced by such Definitive
Warrant Certificate countersigned and delivered pursuant to clause (i) above.
Upon the exchange of a Global Warrant Certificate for Definitive Warrant
Certificates, such Global Warrant Certificate shall be canceled by the Warrant
Agent or an agent of the Company or the Warrant Agent. Registered Definitive
Warrant Certificates issued in exchange for a Registered Global Warrant
Certificate pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the persons in whose names such Warrant Certificates are so
registered. Definitive Bearer Warrant Certificates issued in exchange for a
Global Bearer Warrant Certificate pursuant to this Section shall be issued in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series
of Universal Warrants to the contrary, none of the Company, the Warrant Agent or
any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel) shall
be required to exchange any Bearer Warrant for a Registered Warrant if such
exchange would result in adverse Federal income tax consequences to the Company
under then applicable United States Federal income tax laws
(l) The Company will maintain one or more offices or agencies in
a city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Universal Warrants of such series are listed) where the
Bearer Warrants, if any, of each series may be presented for exercise and
payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an address
in, the United States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in United
States dollars with respect to Bearer Warrants of any series which are payable
in United States dollars may be made at an agency of the Company maintained in
the Borough of Manhattan, The City of New York if such payment in United States
dollars at each agency maintained by the Company outside the United States for
payment on such Bearer Warrants is illegal or effectively precluded by exchange
controls or other similar restrictions
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that series
may be presented for exchange as provided in this Agreement and where the
Registered Universal Warrants of that series may be presented for registration
of transfer as in this Agreement provided, and the Company may from time to time
rescind any such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain the agencies provided for in
this Section. The Company will give to the Warrant Agent prompt written notice
of any such designation or rescission thereof.
Section 1.06. Mutilated or Missing Warrant Certificates. (a) If
any Warrant Certificate evidencing Universal Warrants of any series is
mutilated, lost, stolen or destroyed, the Company may in its discretion execute,
and the Warrant Agent may countersign and deliver, in exchange and substitution
for the mutilated Warrant Certificate, or in replacement for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate representing an
equivalent number of unexercised Universal Warrants of the same series and of
like tenor, bearing an identification number, if applicable, not
contemporaneously outstanding, but only (in case of loss, theft or destruction)
upon receipt of evidence satisfactory to the Company and the Warrant Agent of
such loss, theft or destruction of such Warrant Certificate and security or
indemnity, if requested, also satisfactory to them. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such
mutilated, lost, stolen or destroyed Warrant Certificate have been or are about
to be exercised, or deemed to be exercised, the Company in its absolute
discretion may, instead of issuing a new Warrant Certificate, and subject to the
conditions set forth in clause (a) above, direct the Warrant Agent to treat the
same as if it had received the Warrant Certificate together with an irrevocable
exercise notice in proper form in respect thereof, as established with respect
to the Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant
Certificate issued pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall be original, additional contractual
obligations of the Company, and shall be entitled to the same benefits under
this Agreement as the Universal Warrants evidenced by the Warrant Certificate
that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in
accordance with this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Warrant Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any other rights and remedies with respect to
the replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
Section 1.07. Registered Holders. (a) Prior to due presentment
for registration of transfer, the Company, the Warrant Agent, and any agent of
the Company or the Warrant Agent may deem and treat the person in whose name a
Warrant Certificate shall be registered in the Warrant Register (a "Registered
Holder") as the absolute owner of the Registered Warrants evidenced thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate) for any purpose whatsoever, and as the person entitled to exercise
the rights represented by the Registered Warrants evidenced thereby, and neither
the Company nor the Warrant Agent, nor any agent of the Company or the Warrant
Agent, shall be affected by any notice to the contrary. All payments on account
of any Registered Warrant to the Registered Holder, or upon his order, shall be
valid, and to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability of the Company for moneys paid upon such Registered
Warrant. This Section shall be without prejudice to the rights of Warrantholders
as described elsewhere herein.
(b) The Company, the Warrant Agent and any agent of the Company
or the Warrant Agent may treat the holder of any Bearer Warrant as the absolute
owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such Bearer
Warrant made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon such Bearer Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere herein.
Section 1.08. Cancellation. All Universal Warrant Certificates
surrendered to the Warrant Agent for redemption or registration of transfer or
exchange shall be promptly cancelled by the Warrant Agent. The Company may at
any time deliver to the Warrant Agent for cancellation any Universal Warrant
Certificates previously countersigned and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Universal Warrant
Certificates so delivered shall, upon receipt by the Warrant Agent of an Issuer
Order, be promptly cancelled by the Warrant Agent. No Universal Warrant
Certificates shall be countersigned in lieu of or in exchange for any Universal
Warrant Certificates cancelled as provided in this Section, except as permitted
by this Agreement. All cancelled Universal Warrant Certificates held by the
Warrant Agent shall be disposed of in accordance with its customary procedures
and a certificate of their disposition shall be delivered by the Warrant Agent
to the Company, unless by Issuer Order the Company shall direct that cancelled
Universal Warrant Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire any
Universal Warrant Certificate, such acquisition shall not operate as a
cancellation of such Universal Warrant Certificate unless and until such
Universal Warrant Certificate is delivered to the Warrant Agent for the purpose
of cancellation.
Section 1.09. Additional Warrant Agents. Whenever the Company
shall appoint a warrant agent other than the Warrant Agent with respect to the
Universal Warrants of any series, it will cause such warrant agent to execute
and deliver to the Warrant Agent an instrument in which such agent shall agree
with the Warrant Agent, subject to the provisions of this Section,
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series in
trust for the benefit of the Warrantholders of such series if any, or of the
Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by
the Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
The Company will, on or prior to each date of any payment of
Universal Warrants of any such series, deposit with the Warrant Agent or any
such additional warrant agent a sum sufficient to make such payment, and the
Company will promptly notify the Warrant Agent of any failure to take such
action with respect to any such additional warrant agent.
Section 1.10. Appointment of Calculation Agents. Pursuant to
Section 1.03 hereof, the Company may, in connection with any series of Universal
Warrants appoint Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Xxxxxxx & Co.
International Limited or any other person or entity as Calculation Agent to make
any calculations as may be required pursuant to the terms of any such series of
Universal Warrants. Any such Calculation Agent shall act as an independent
expert and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Company, the Warrant Agent and the Warrantholders. Any such
calculations will be made available to a Warrantholder for inspection at the
Warrant Agent's Office.
ARTICLE 2
Duration and Exercise of Universal Warrants
Section 2.01. Duration and Exercise of Universal Warrants. All
terms with respect to duration and exercise of Universal Warrants will be
established pursuant to Section 1.03 for each series of Universal Warrants.
Section 2.02. Return of Money Held Unclaimed for Two Years.
Except as otherwise provided herein, any money or other assets deposited with or
paid to the Warrant Agent for the payment of any Universal Warrants and not paid
but remaining unclaimed for two years after the date upon which such money or
other assets shall have become due and payable shall be repaid by the Warrant
Agent to the Company, at the Company's request pursuant to an Officer's
Certificate, and the holders of such Universal Warrants shall thereafter look
only to the Company for any payment which such holders may be entitled to
collect and all liability of the Warrant Agent with respect to such money shall
thereupon cease; provided that the Warrant Agent, before making any such
repayment, may (but shall not be obligated to) at the expense of the Company
notify (i) in the case of Registered Warrants evidenced by Definitive Warrant
Certificates, the Registered Holders, (ii) in the case of Warrants evidenced by
one or more Global Warrant Certificates, the participants of the Depositary, and
(iii) in the case of Bearer Warrants evidenced by Definitive Warrant
Certificates, the holders thereof, in each case as provided in Section 6.04,
that said money has not been so applied and remains unclaimed and that after a
date named in the notification any unclaimed balance of said money then
remaining will be returned to the Company.
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.01. Warrantholder May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any Warrantholder may, without the
consent of the Warrant Agent, the Depositary, any participant of the Depositary,
any other Warrantholder, the holder of any Warrant Property or, if applicable,
the common depositary for Xxxxxx Guaranty Trust Company of New York, Brussels
Office, or its successor, as operator of the Euroclear System and Cedel Bank,
societe anonyme, or its successor, in and for its own behalf, 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
Universal Warrants as provided in this Agreement and established with respect to
such Universal Warrants pursuant to Section 1.03.
Section 3.02. No Rights as Holder of Warrant Property Conferred
by Universal Warrants or Warrant Certificates. No Warrant Certificate or
Universal 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
Property, including, without limitation, the right to receive the payment of
principal of (premium, if any) or interest, if any, on Warrant Property or to
vote or to enforce any rights under any documents governing Warrant Property.
Section 3.03. 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,
then in any such event the successor, if other than the Company, shall by an
instrument of assumption delivered to the Warrant Agent succeed to and be
substituted for the Company, with the same effect 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 Universal 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 and 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 Universal
Warrants issuable hereunder that theretofore shall not have been signed by the
Company. All the Universal Warrants so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Universal Warrants
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Universal 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 Universal Warrants thereafter
to be issued as may be appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as
conclusive evidence that any such merger, consolidation, conveyance, transfer or
assumption complies with the provisions of this Section.
ARTICLE 4
Universal Warrants Acquired by the Company; Payment of Taxes
Section 4.01. Universal Warrants Acquired by the Company. (a) In
the event the Company shall purchase or otherwise acquire Universal Warrants,
such Universal Warrants may, at the option of the Company, be (i) in the case of
Bearer Warrants or Registered Warrants evidenced by Definitive Warrant
Certificates, delivered to the Warrant Agent, and if so delivered, the Warrant
Agent shall promptly cancel such Universal Warrants on the records of the
Warrant Agent or (ii) in the case of Warrants evidenced by one or more Global
Warrant Certificates, surrendered free through a participant of the Depositary
to the Depositary for credit to the account of the Warrant Agent maintained at
the Depositary, and if so credited, the Warrant Agent shall promptly note the
cancellation of such Universal Warrants by notation on the records of the
Warrant Agent and the Warrant Agent shall cause its records to be marked to
reflect the reduction in the number of Universal Warrants evidenced by the
Global Warrant Certificate or Certificates by the number of Universal Warrants
so canceled promptly after such account is credited. Universal Warrants acquired
by the Company may also, at the option of the Company, be resold by the Company
directly or to or through any of its affiliates in lieu of being surrendered to
the Warrant Agent or credited to its account. No Warrant Certificate shall be
countersigned in lieu of or in exchange for any Universal Warrant that is
canceled as provided herein, except as otherwise expressly permitted by this
Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent
under this Agreement shall be disposed of by the Warrant Agent in accordance
with its customary procedures unless otherwise directed by the Company, and the
Warrant Agent shall deliver a certificate of disposition to the Company
evidencing the same.
Section 4.02. Payment of Taxes. The Company will pay all stamp,
withholding and other duties, if any, attributable to the initial issuance of
each series or tranche of Universal Warrants; provided, however, that, anything
in this Agreement to the contrary notwithstanding, the Company shall not be
required to pay any tax or other governmental charge that may be payable in
respect of any transfer involving any beneficial or record interest in, or
ownership interest of, any Universal Warrants or Warrant Certificates.
ARTICLE 5
Concerning the Warrant Agent
Section 5.01. Warrant Agent. The Company hereby appoints The
Chase Manhattan Bank as Warrant Agent of the Company in respect of the Universal
Warrants upon the terms and subject to the conditions set forth herein; and The
Chase Manhattan Bank hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in this Agreement
and such further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it with its consent. All of the
terms and provisions with respect to such powers and authority contained in any
Warrant Certificate are subject to and governed by the terms and provisions
hereof.
Section 5.02. Condition 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
Universal Warrants shall be subject:
(1) 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
its reasonable out-of-pocket expenses (including attorneys' fees and
expenses) incurred by the Warrant Agent without negligence or bad faith
on its part in connection with the services rendered by it hereunder.
The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense (including
reasonable attorneys' fees and expenses) incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of
liability in the premises. The obligations of the Company under this
Section shall survive the expiration of all Universal Warrants issued
under this Agreement.
(2) In acting under this Agreement, 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 Warrantholders.
(3) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion 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 opinion of such counsel.
(4) 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 notice, direction, consent, certificate,
affidavit, opinion, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by
the proper parties.
(5) The Warrant Agent and its officers, directors and employees
may become the owner of, or acquire any interest in, any Universal
Warrants or other obligations of the Company, 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 behalf of, or as depositary, trustee or agent for, any
committee or body of owners or holders of Universal Warrants or other
obligations of the Company as freely as if it were not the Warrant
Agent hereunder.
(6) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of
the provisions of this Agreement nor shall it be obligated to segregate
such monies from other monies held by it, except as required by law.
The Warrant Agent shall not be responsible for advancing funds on
behalf of the Company.
(7) 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, execution
and delivery hereof by the Warrant Agent) or with respect to the
validity or execution of the Warrant Certificates (except its
countersignature thereof).
(8) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be
taken as the statements of the Company, and the Warrant Agent assumes
no responsibility for the correctness of the same.
(9) The Warrant Agent shall be obligated to perform such duties
as are specifically set forth in this Agreement and no implied duties
or obligations shall be read into this Agreement against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder likely to involve it in any expense or liability, the
payment of which is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the application by the Company of any proceeds of
the issuance of any Warrants. 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 in this Agreement or in any
Warrant Certificate or in the case of the receipt of any written demand
from a holder of a Universal Warrant 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
Universal Warrants, that there shall at all times be a Warrant Agent hereunder
with respect to each series of Universal Warrants until all the Universal
Warrants of such series are no longer outstanding or until monies for the
payment of all outstanding Universal Warrants of such series, if any, shall have
been paid to the Warrant Agent and shall have been returned to the Company as
provided in Section 2.02, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of a successor
Warrant Agent with respect to such series and acceptance of such appointment by
such successor Warrant Agent as hereinafter provided. The Warrant Agent
hereunder may be removed with respect to any series of Universal Warrants at any
time by the filing with it of an instrument in writing signed by or on behalf of
the Company and specifying such removal and the date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by
the Company, as hereinafter provided, of a successor Warrant Agent with respect
to such series (which shall be a banking institution organized under the laws of
the United States of America or one of the states thereof, have a combined
capital and surplus of at least $50,000,000 (as set forth in its most recent
reports of condition published pursuant to law or to the requirements of any
United States federal or state regulatory or supervisory authority) and having
an office in the Borough of Manhattan, The City of New York) and the acceptance
of such appointment by such successor Warrant Agent. 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
with respect to such series. The obligation of the Company under Section 5.02(1)
shall continue to the extent set forth therein notwithstanding the resignation
or removal of the Warrant Agent with respect to any series of Universal
Warrants.
(c) In case at any time the Warrant Agent with respect to any
series of Universal Warrants shall give notice of its intent to resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or make an assignment for the benefit of its creditors, or consent
to the appointment of a receiver or custodian of all or any substantial part of
its property, or shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be promptly appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder with respect to such series.
(d) Any successor Warrant Agent appointed hereunder with respect
to any series of Universal Warrants shall execute, acknowledge and deliver to
its predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent with respect to such series hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor (including, without
limitation, the Warrant Register), as Warrant Agent with respect to such series
hereunder.
(e) If a successor Warrant Agent is appointed with respect to the
Universal Warrants of one or more (but not all) series, the Company, the
predecessor Warrant Agent and each successor Warrant Agent with respect to the
Universal Warrants of any applicable series shall execute and deliver an
agreement supplemental hereto that shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers and duties
of the predecessor Warrant Agent with respect to the Universal Warrants of any
series as to which the predecessor Warrant Agent is not retiring shall continue
to be vested in the predecessor Warrant Agent, and shall add to or change any of
the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more than
one Warrant Agent, it being understood that nothing herein or in such
supplemental agreement shall constitute such Warrant Agents Co-Warrant Agents of
the same Universal Warrants and that each such Warrant Agent shall be a Warrant
Agent with respect to separate series of Universal Warrants.
(f) 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 corporate agency 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 6
Miscellaneous
Section 6.01. Amendment. (a) This Agreement and the terms of the
Universal Warrants of any series may be amended (by means of an agreement
supplemental hereto or otherwise) by the Company and the Warrant Agent, without
the consent of the Warrantholders of any series of Universal Warrants, (i) for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or therein, (ii) to
establish the form or terms of Warrant Certificates or Universal Warrants of any
series as permitted by Sections 1.02 and 1.03, (iii) to evidence and provide for
the acceptance of appointment hereunder by a successor Warrant Agent with
respect to the Universal Warrants of any series and to add to or change any of
the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more than
one Warrant Agent pursuant to Section 5.03, or (iv) in any other manner which
the Company may deem necessary or desirable and which will not materially and
adversely affect the interests of the Warrantholders of such series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the then
outstanding Universal Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Universal Warrants of any
series, shortens the period of time during which the Universal Warrants of such
series may be exercised, or otherwise materially and adversely affects the
exercise rights of the affected Warrantholders or reduces the percentage of the
number of outstanding Universal Warrants of such series, the consent of whose
holders is required for modification or amendment of this Agreement, may be made
without the consent of each Warrantholder affected thereby. In the case of
Universal Warrants evidenced by one or more Global Warrant Certificates, the
Company and the Warrant Agent shall be entitled to rely upon certification in
form satisfactory to each of them that any requisite consent has been obtained
from holders of beneficial ownership interests in the relevant Global Warrant
Certificate. Such certification may be provided by participants of the
Depositary acting on behalf of such beneficial owners of Universal Warrants,
provided that any such certification is accompanied by a certification from the
Depositary as to the Universal Warrant holdings of such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or more
particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any other
series.
(d) Upon the request of the Company, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) authorizing the
execution of any such amendment, and upon the filing with the Warrant Agent of
evidence of the consent of Warrantholders as aforesaid, the Warrant Agent shall
join with the Company in the execution of such amendment unless such amendment
affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise, in which case the Warrant Agent may in its discretion,
but shall not be obligated to, enter into such amendment. In executing, or
accepting the additional duties created by, any amendment permitted by this
Article, the Warrant Agent shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement. The fact and date
of the execution of any consent of Warrantholders, or the authority of the
Person executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the
Warrantholders under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 6.02. Notices and Demands to the Company and the Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by any Warrantholder pursuant to the provisions of this Agreement or the
terms of the Universal Warrants of any series, the Warrant Agent shall promptly
forward such notice or demand to the Company.
Section 6.03. Addresses for Notices. Any communications to the
Warrant Agent with respect to this Agreement shall be in writing addressed to
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate and
Municipal Agency Department (the "Warrant Agent's Office") and any
communications to the Company with respect to this Agreement shall be addressed
to Xxxxxx Xxxxxxx Group Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Treasurer (or in each case to such other address as
shall be given in writing to the other party hereto).
Section 6.04. Notices to Warrantholders. The Company may cause to
have notice given to the Warrantholders of any series by providing the Warrant
Agent with a form of notice to be distributed by (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Warrant Agent to
Registered Holders by first class mail, (ii) in the case of Warrants evidenced
by one or more Global Warrant Certificates, the Depositary to be distributed by
the Depositary to its participants in accordance with the custom and practices
of the Depositary or (iii) in the case of Bearer Warrants evidenced by
Definitive Warrant Certificates, publication at least once in an Authorized
Newspaper (as defined below) in The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and, in the case of Western Europe, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, and Western Europe, as applicable. If it shall be impractical in the
opinion of the Warrant Agent to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given with the approval of the Warrant Agent shall
constitute a sufficient publication of such notice.
Section 6.05. Obtaining of Approvals. The Company will from time
to time take all action that may be necessary to obtain and keep effective any
and all filings or notices under applicable law, which may be or become required
in connection with the issuance, sale, trading, transfer or delivery of the
Warrant Certificates or the exercise of the Universal Warrants.
Section 6.06. Persons Having Rights under this Agreement. Nothing
in this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the Warrantholders any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
hereof, and all covenants, conditions, stipulations, promises and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent, their respective successors and the Warrantholders.
Section 6.07. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the Warrant Agent's Office for
inspection by the Warrantholders, participants of the Depositary certified as
such by the Depositary or any person certified by any such participant to be an
indirect participant of the Depositary or any person certified by any such
participant to be a beneficial owner of a Universal Warrant, in each case, on
behalf of whom such participant holds Universal Warrants.
Section 6.08. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. (a) Each certificate or opinion provided for
in this Agreement and delivered to the Warrant Agent with respect to compliance
with a condition or covenant provided for in this Agreement shall include (i) a
statement that the person making such certificate or opinion has read such
covenant or condition, (ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (iii) a statement that, in the opinion of
such person, such person has made such examination or investigation as is
necessary to enable such person to express an informed opinion as to whether or
not such covenant or condition has been complied with and (iv) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
such officer's certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion of
or representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which such officer's certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which such officer's or counsel's, as the
case may be, certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Warrant Agent shall contain a
statement that such firm is independent.
Section 6.09. Payments Due on Saturdays, Sundays and Holidays.
If the date fixed for any payment with respect to the Universal Warrants of
any series appertaining thereto shall not be a Business Day (as defined below),
then such payment need not be made on such date, but may be made on the next
succeeding Business Day with same force and effect as if made on the date fixed,
and no interest shall accrue for the period after such date.
"Business Day" means, with respect to any Universal Warrant, a
Business Day as defined in any debt security included in any unit comprising
such Universal Warrant or as otherwise established pursuant to Section 1.03
hereof or if the term Business Day is not so specified, Business Day means any
day that is not a Saturday or Sunday or a legal holiday in The City of New York
or a day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to be closed.
Section 6.10. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Universal Warrants of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Warrant Agent could purchase in The City of
New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day (as defined below), in which event, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Warrant Agent could purchase in
The City of New York the Required Currency with the Judgment Currency on the
last New York Banking Day preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Agreement and the terms of the
Universal Warrants of such series to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum due
under this Agreement. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
Section 6.11. 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 6.12. Counterparts. This Agreement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
Section 6.13. Applicable Law. This Agreement and each Universal
Warrant shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State, excluding choice of law provisions.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
XXXXXX XXXXXXX GROUP INC.
By ______________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
THE CHASE MANHATTAN BANK
By ______________________________
Name:
Title:
Exhibit I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.]
XXXXXX XXXXXXX GROUP INC.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____](*)
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered
assigns, is the Registered Holder of the number of [Designation of Universal
Warrants] (the "Warrants") [specified above](**)[specified on Schedule A
hereto](***). Upon receipt by the Warrant Agent of this Warrant Certificate, the
exercise notice on the reverse hereof (or an exercise notice in substantially
identical form delivered herewith)(the "Exercise Notice"), duly completed and
executed, and the Call Price per Warrant set forth above, in the form set forth
above, for each Warrant to be exercised (the "Exercise Property") at the Warrant
Agent's Window, Attention: Tender Department, in the Borough of Manhattan, The
City of New York, each Warrant evidenced hereby entitles the Registered Holder
hereof to receive, subject to the terms and conditions set forth herein and in
the Warrant Agreement (as defined below), from Xxxxxx Xxxxxxx Group Inc. (the
"Company") the amount and form of property (the "Warrant Property") specified
above. Warrants will not entitle the Warrantholder to any of the rights of the
holders of any of the Warrant Property.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
--------------
(*) Applies to global warrant certificates.
(**) Applies to definitive warrant certificates
(***) Applies to global warrant certificates
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated: ___________ XXXXXX XXXXXXX GROUP INC.
By: __________________________
Name:
Title:
Attest:
By: _____________________
Secretary
Countersigned as of the date above written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By: _____________________
Authorized Officer
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
XXXXXX XXXXXXX GROUP INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of January 24, 1997 (the "Warrant
Agreement"), between the Company and The Chase Manhattan Bank (the "Warrant
Agent") and are subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions each Warrantholder consents by
acceptance of this Warrant Certificate or a beneficial interest therein and
which Warrant Agreement is hereby incorporated by reference in and made a part
of this Warrant Certificate. Without limiting the foregoing, all capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Warrant Agreement. A copy of the Warrant Agreement is on file at the Warrant
Agent's Office. The Warrants constitute a separate series of Universal Warrants
under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and
rank pari passu with the Company's other unsecured contractual obligations and
with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each
Warrant may be exercised during the dates of exercise set forth on the face
hereof by delivering or causing to be delivered this Warrant Certificate, the
Exercise Notice, duly completed and executed, and the Exercise Property for each
such Warrant to the Warrant Agent's Window, in the Borough of Manhattan, The
City of New York, which is, on the date hereof (unless otherwise specified
herein), The Chase Manhattan Bank Corporate Trust Securities Window, 00 Xxxxx
Xxxxxx, Room 000, Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Tender
Department, or at such other address as the Warrant Agent may specify from time
to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the
Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants, and the Exercise Property with respect thereto.
The Registered Holder hereby directs the Warrant Agent (a) to deliver
the Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants
represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________
---------------------------
(Registered Holder)
By: ________________________
Authorized Signature
Address:
Telephone:
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal
Warrant is __________. In accordance with the Universal Warrant Agreement and
the Unit Agreement dated as of January 24, 1997 among the Issuer, The Chase
Manhattan Bank, as Unit Agent, as Warrant Agent, as Collateral Agent, and as
Trustee under the Indenture referred to therein and the Holders from time to
time of the Units described therein, the following (A) exchanges of [the number
of Universal Warrants indicated below for a like number of Universal Warrants to
be represented by a Global Universal Warrant that has been separated from a Unit
(a "Separated Universal Warrant")](*) [the number of Universal Warrants that had
been represented by a Global Universal Warrant that is part of a Unit (an
"Attached Unit Universal Warrant") for a like number of Universal Warrants
represented by this Global Universal Warrant](**) or (B) reductions as a result
of the exercise of the number of Universal Warrants indicated below have been
made:
[Number of
Attached Unit
Universal Warrants
Exchanged for [Increased Reduced Notation
[Number [Reduced Universal Warrants Number Number Number Made by
Date of Exchanged for Number represented by Outstanding of Outstanding or on
Exchange Separated Outstanding this Separated Following Universal Following Behalf
or Universal Following Such Universal Such Warrants Such of Warrant
Exercise Warrants](*) Exchange](*) Warrant](**) Exchange](**) Exercised Exercise Agent
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
(*)Applies only if this Global Universal Warrant is part of a Unit.
(**)Applies only if this Global Universal Warrant has been separated from a
Unit.
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.]
XXXXXX XXXXXXX GROUP INC.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO ____](*)
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF DETERMINING SAME):
[WARRANT PROPERTY:](**)
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:](**)
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:](**)
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE DELIVERED FOR SALE UPON
EXERCISE OF WARRANTS:](**)
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered
assigns, is the Registered Holder of the number of [Designation of
Universal Warrants] (the "Warrants") [specified above](*) [specified on
Schedule A hereto](**). Upon receipt by the Warrant Agent of this
Warrant Certificate, the exercise notice on the reverse hereof (or an
exercise notice in substantially identical form delivered herewith)(the
"Exercise Notice"), duly completed and executed, and the Amount of
Warrant Property saleable per Warrant set forth above, adjusted, if
applicable, as set forth above, for each Warrant to be exercised,
delivered as set forth above at the Warrant Agent's Window, Attention:
Tender Department, in the Borough of Manhattan, The City of New York
(which is, on the date hereof, Corporate Trust Securities Window, 00
Xxxxx Xxxxxx, Room 000, Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Tender Department), each Warrant evidenced hereby entitles
the Registered Holder hereof to receive, subject to the terms and
conditions set forth herein and in the Warrant Agreement (as defined
below), from Xxxxxx Xxxxxxx Group Inc. (the "Company") the [Cash
Settlement Value][Put Price](***) per Warrant specified above.
-------------
(*) Applies to global warrant certificates.
(**) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
(**) Applies to global warrant certificates.
(***) Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
Unless otherwise indicated above, a Warrant will not require or entitle
a Warrantholder to sell or deliver to the Company, nor will the Company be under
any obligation to, nor will it, purchase or take delivery from any Warrantholder
of, any Warrant Property, and upon exercise of a Warrant, the Company will make
only a cash payment in the amount of the Cash Settlement Value or Put Price per
Warrant. Warrantholders will not receive any interest on any Cash Settlement
Value.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx Group Inc. has caused this
instrument to be duly executed.
Dated: ___________ XXXXXX XXXXXXX GROUP INC.
By: __________________________
Name:
Title:
Attest:
By: _____________________
Secretary
Countersigned as of the date above written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By: _____________________
Authorized Officer
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
XXXXXX XXXXXXX GROUP INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of January 24, 1997 (the "Universal
Warrant Agreement"), between the Company and The Chase Manhattan Bank (the
"Warrant Agent") and are subject to the terms and provisions contained in the
Universal Warrant Agreement, to all of which terms and provisions each
Warrantholder consents by acceptance of this Warrant Certificate or a beneficial
interest therein and which Universal Warrant Agreement is hereby incorporated by
reference in and made a part of this Warrant Certificate. Without limiting the
foregoing, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Universal Warrant Agreement. A copy of the
Universal Warrant Agreement is on file at the Warrant Agent's Office. The
Warrants constitute a separate series of Universal Warrants under the Universal
Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and
rank pari passu with the Company's other unsecured contractual obligations and
with the Company's unsecured and unsubordinated debt.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
The Chase Manhattan Bank
Corporate Trust Securities Window
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tender Department
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants[, and the Warrant Property with respect thereto].(*)
The Registered Holder hereby directs the Warrant Agent (a) to deliver
the [Cash Settlement Value][Put Price](*) per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants
represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________
---------------------------
(Registered Holder)
By: ________________________
Authorized Signature
Address:
Telephone:
-------------
(*) Only if terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal
Warrant is __________. In accordance with the Universal Warrant Agreement and
the Unit Agreement dated as of January 24, 1997 among the Issuer, The Chase
Manhattan Bank, as Unit Agent, as Warrant Agent, as Collateral Agent, and as
Trustee under the Indenture referred to therein and the Holders from time to
time of the Units described therein, the following (A) exchanges of [the number
of Universal Warrants indicated below for a like number of Universal Warrants to
be represented by a Global Universal Warrant that has been separated from a Unit
(a "Separated Universal Warrant")](*) [the number of Universal Warrants that had
been represented by a Global Universal Warrant that is part of a Unit (an
"Attached Unit Universal Warrant") for a like number of Universal Warrants
represented by this Global Universal Warrant](**) or (B) reductions as a result
of the exercise of the number of Universal Warrants indicated below have been
made:
[Number of
Attached Unit
Universal Warrants Notation
Exchanged for Made by
[Number [Reduced Universal Warrants [Increased Reduced or on
Date of Exchanged for Number represented by Number Number of Number Behalf
Exchange Separated Outstanding this Separated Outstanding Universal Outstanding of
or Universal Following Such Universal Following Such Warrants Following Such Warrant
Exercise Warrants](*) Exchange](*) Warrant](**) Exchange](**) Exercised Exercise Agent
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------- ------------ ------------ ------------ ------------ ------------ ------------ ------------
(*)Applies only if this Global Universal Warrant is part of a Unit.
(**)Applies only if this Global Universal Warrant has been separated from a
Unit.
