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EXHIBIT 4.14
STAR BANC CORPORATION
FORM OF COMMON STOCK WARRANT AGREEMENT
COMMON STOCK WARRANT AGREEMENT dated as of ________, ____, between
Star Banc Corporation, a Delaware corporation (hereinafter called the
"Company"), and ____________________ having a corporate trust office in
_________________________, as warrant agent (hereinafter called the "Warrant
Agent").
WHEREAS, the Company propose to issue [Class ___] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ______ shares of Common Stock of the Company (par value $[ ] per
share) (hereinafter called the "Shares") at an initial cash price of $_____ per
Share at any time [after ____________ and] prior to 3:30 p.m., New York City
time, on _________, ____ (hereinafter called the "expiration date") (unless
extended as provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
WHEREAS, the Warrants will be offered in Units, each of which
consists of ______________ and Warrants to purchase ______ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Form of Warrant. The text of Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the form of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise Price of $______ per share; provided, however, that the warrant
exercise price and the number
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of Shares issuable upon exercise of Warrants are subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The Warrants shall be
executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman of the Board, President or Vice President of the
Company, under its seal, affixed or in facsimile, and by the manual or facsimile
signature of the present or any future Secretary or Assistant Secretary of the
Company.
The Company shall promptly notify the Warrant Agent from time to
time in writing of the number of Warrants to be issued and furnish written
instructions in connection therewith signed by an executive officer of the
Company; such notification and instructions may, but need not be, in the form of
a general or continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of
each initial issuance, and as of the date of issuance thereof upon any transfer
or exchange thereof.
Section 3. Countersignature and Registration. The Warrant Agent
shall maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The Warrants
shall be countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not be valid
for any purpose unless so countersigned. Such Warrants may be so countersigned,
however, by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall have
ceased to be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or cause the
same to be presented, to the Warrant Agent for countersignature of such Warrant.
Section 4. Transfers and Exchanges. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon the surrender thereof for
transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant of like tenor shall be issued to
the transferee and the surrendered Warrant shall be cancelled by the Warrant
Agent. All such Warrants so cancelled shall be delivered by the Warrant Agent to
the Company from time to time. The Warrants may be exchanged at the option of
the holder thereof, when surrendered at the office in _________________ of the
Warrant Agent, for another Warrant, or
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other Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares. The Warrant Agent is
hereby irrevocably authorized to countersign and deliver, in accordance with the
provisions of this Section and Section 3 of this Agreement, such new Warrants
required pursuant to the provisions of this Section, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
Notwithstanding the foregoing, until __________, the warrants shall
not be transferable apart from the ___________ to which they are attached, any
transfer of the ___________ shall be deemed a transfer of the Warrants attached
thereto, and any attempt to transfer the Warrants apart from the ___________
shall be void and of no effect. Each Warrant shall contain a legend to the
foregoing effect.]
Section 5. Exercise of Warrants. The registered holder of each
Warrant shall have the right, which may be exercised as in such Warrant
expressed, to purchase from the Company (and the Company shall issue and sell to
such registered holder) the number of Shares specified in such Warrants, upon
surrender to the Company, at the office in ____________________ of the Warrant
Agent of such Warrant, with the form of election to purchase on the reverse
thereof duly filled in and signed, and upon payment to the Warrant Agent for the
account of the Company of the warrant exercise price, determined in accordance
with the provisions of Section 9 of this Agreement, for the number of Shares in
respect of which such Warrant is then exercised. Payment of such warrant
exercise price may be made in cash, or by certified check or bank draft or
postal or express money order, payable in United States dollars, to the order of
the Warrant Agent. No adjustment shall be made for any dividends on any Shares
issuable upon exercise of any Warrant. Subject to Section 6, upon such surrender
of Warrants, and payment of the warrant exercise price as aforesaid, the Company
shall issue and cause to be delivered with all reasonable dispatch to or upon
the written order of the registered holder of such Warrants, and in such name or
names as such registered holder may designate, a certificate or certificates for
the number of full Shares so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 9 of this Agreement, in respect of
any fraction of a Share otherwise issuable upon such surrender. Such certificate
or certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a
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holder of record of such Shares as of the date of the surrender of such Warrants
and payment of the warrant exercise price as aforesaid; provided, however, that
if, at the date of surrender of such Warrants and payment of such warrant
exercise price, the transfer books for the Shares purchasable upon the exercise
of such Warrants shall be closed, no such surrender of such Warrants and no such
payment of such warrant exercise price shall be effective to constitute the
person so designated to be named therein as the holder of record of such Shares
on such date, but shall be effective to constitute such person as the holder of
record of such Shares for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Shares purchasable upon the
exercise of such Warrants shall be opened, and the certificates for the Shares
in respect of which such Warrants are then exercised shall be issuable as of the
date on which such books shall next be opened, and until such date the Company
shall be under no duty to deliver any certificate for such Shares. The rights of
purchase represented by the Warrants shall be exercisable, at the election of
the registered holders thereof, either as an entirety or from time to time for
part only of the Shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the Shares specified therein at any
time prior to the date of expiration of the Warrants, a new Warrant or Warrants
of like tenor will be issued for the remaining number of Shares specified in the
Warrant so surrendered, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrants pursuant to the
provisions of this Section and of Section 3 of this Agreement, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose.
Section 6. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Shares issuable upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any certificates for Shares in a name other than
that of the registered holder of Warrants in respect of which such shares are
issued and the Company shall not be required to issue and deliver the
certificates for such Shares unless and until the holder has paid to the Company
the amount of any tax which may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of the Company that such
tax has been paid.
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Section 7. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the Company will issue
and the Warrant Agent will countersign and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrants and indemnity, if requested, also satisfactory
to them. Applicants for such substitute Warrants shall also comply with other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe. Any such new Warrant shall constitute an
original contractual obligation of the Company whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 8. Reservation of Shares, etc. Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the expiration date keep reserved, out of its authorized and unissued
Common Stock, a number of Shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Shares and every subsequent Transfer Agent for the Shares issuable upon the
exercise of any of the rights of purchase aforesaid are hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued Shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for the Shares and with
every subsequent Transfer Agent for the Shares issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in Section 9 of this Agreement. All Warrants
surrendered in the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or partial exercise shall be cancelled by the Warrant Agent
and shall thereafter be delivered to the Company.
Section 9. Warrant Price; Adjustment. A. The warrant price per share
at which Shares shall be purchasable upon exercise of Warrants (herein called
the "warrant exercise price") to and including the expiration date (unless the
expiration date is extended as provided below in this Section 9A) shall be
$_________ per share, or, if adjusted as provided in
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this Section , shall be such price as so adjusted. The Warrants will not be
exercisable prior to [the close of business on the date of any initial issuance
thereof] [____________] and will expire at 3:30 p.m., New York City time, an the
expiration date; provided that the Company reserves the right to, and may, in
its sole discretion, at any time and from time to time, at such time or times as
the Company so determines, extend the expiration date of the Warrants for such
periods of time as it chooses; further provided that in no case may the
expiration date of the Warrants (as extended) be extended five years from the
expiration date set forth above. Whenever the expiration date of the Warrants is
so extended, the Company shall at least 20 days prior to the then expiration
date cause to be mailed to the Warrant Agent and the registered holders of the
Warrants in accordance with the provisions of Section 7 hereof a notice stating
that the expiration date has been extended and setting forth the new expiration
date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable
upon exercise of each Warrant and the number of Warrants outstanding shall be
subject to adjustment as follows:
(a) In case the Company shall at any time after the date of
this Agreement (i) pay a dividend, or make a distribution, on the Common Stock
which is payable in shares of its capital stock (whether shares of Common Stock
or of capital stock of any other class), (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of securities
(including shares of Common Stock), or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of shares (including
shares of Common Stock), the number of Shares purchasable upon exercise of each
Warrant immediately prior to the occurrence of such event shall be adjusted so
that the holder of each Warrant shall be entitled to receive upon payment of the
warrant purchase price the aggregate number of shares of the Company which, if
such Warrant had been exercised immediately prior to the occurrence of such
event, such holder would have owned or have been entitled to receive immediately
after the occurrence of such event. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately after the record date in the
case of a dividend and shall become effective immediately after the effective
date in the case of a subdivision or combination. If, as a result of an
adjustment made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
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(whose determination shall be conclusive) shall determine the allocation between
or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subparagraph (a), the holder of any Warrant thereafter
exercised shall become entitled to receive any shares or other securities of the
Company other than Shares of Common Stock, thereafter the number of such other
shares so received upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in this
paragraph, and other provisions of this paragraph 9B(1) with respect to the
shares of Common Stock shall apply on like terms to any such other shares or
other securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock entitling them
(for a period expiring within 45 days after such record date) to subscribe for
or purchase Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in subparagraph (e) below) at such record
date, the warrant purchase price shall be determined by multiplying the warrant
purchase price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Shares of Common Stock outstanding
on such record date plus the number of Shares of Common Stock which the
aggregate offering price of the total number of Shares so offered would purchase
at such current market price, and the denominator of which shall be the number
of Shares of Common Stock outstanding on such record date plus the number of
additional Shares of Common Stock offered for subscription or purchase. Such
adjustment shall be made successively whenever such a record date is fixed, and
shall become effective immediately after such record date. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of common stock at less than such current market price, and in
determining the aggregate offering price of such shares, there shall be taken
into account any consideration received by the Company for such rights or
warrants, the value of such consideration, if other than cash, to be determined
by the Board of Directors of the Company. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this subparagraph
(b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock of
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evidences of its indebtedness or assets (excluding regular quarterly or other
periodic or recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings or referred to in subparagraph (a)
above) or rights or warrants to subscribe or warrants to purchase (excluding
those referred to in subparagraph (b) above), then in each such case the warrant
purchase price shall be determined by multiplying the warrant purchase price in
effect immediately prior to such record date by a fraction (x) the numerator of
which shall be such current market price (as defined in subparagraph (e) below)
per Share of Common Stock on such record date, less the then fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive) of the portion of the assets or evidences of indebtedness
so distributed or of such description rights or to applicable to one share of
the Common Stock and (y) the denominator of which shall be the current market
price per share of the Common Stock on such record date. Such adjustment shall
be made successively whenever such a record date is fixed and shall become
effective immediately after such record date. Notwithstanding the foregoing, in
the event that the Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subparagraph (c), the distribution of
separate certificates representing such Rights subsequent to their initial
distribution (whether or not, such distribution shall have occurred prior to the
date of the issuance of such Warrants) shall be deemed to be the distribution of
such Rights for purposes of this subparagraph (c), provided that the Company
may, in lieu of making any adjustment pursuant to this subparagraph (c) upon a
distribution of the certificates representing such Rights, make proper provision
so that each holder of such Warrants who exercises such Warrants (or any portion
thereof) (A) before the record date for such distribution of separate
certificates shall be entitled to receive upon such exercise shares of Common
Stock issued with Rights and (B) after such record date and prior to the
expiration, redemption or termination of such Rights shall be entitled to
receive upon such exercise, in addition to the shares of Common Stock issuable
upon such exercise, the same number of such Rights as would a holder of the
number of shares of Common Stock that such Warrants so exercised would have
entitled the holder thereof to purchase in accordance with the terms and
provisions of and applicable to the Rights if such Warrants were exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required under this
subparagraph (c).
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(d) After each adjustment of the number at shares purchasable
upon exercise of each Warrant pursuant to subparagraph 9B(1)(a), the warrant
exercise price shall be adjusted by multiplying such warrant exercise price
immediately prior to such adjustment by a fraction of which the numerator shall
be the number of Shares purchasable upon exercise of each Warrant immediately
prior to such adjustment, and the denominator of which shall be the number of
Shares so purchasable immediately thereafter. After each adjustment of the
warrant exercise price pursuant to subparagraph 9B(1)(b) or (c), the total
number of Shares or fractional part thereof purchasable upon the exercise of
each Warrant shall be proportionately adjusted to such number of shares or
fractional parts thereof as the aggregate warrant exercise price of the number
of shares or fractional parts thereof purchasable immediately prior to such
adjustment will buy at the adjusted warrant exercise price.
(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of Common Stock at
any date shall be deemed to be the average of the daily closing prices for the
30 consecutive business days commencing 45 business days before the day in
question. The closing price for each day shall be (i) if the Common Stock is
listed or admitted for trading on the New York Stock Exchange, the last sale
price (regular way), or the average of the closing bid and ask prices (regular
way), if no sale occurred, of Common Stock, in either case as reported on the
New York Stock Exchange Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or, (ii) if not listed or quoted as
described in (i), the mean between the closing high bid and low asked quotations
of Common Stock reported by NASDAQ, or any similar system for automated
dissemination of quotations of securities prices then in common use, if so
quoted, or (iii) if not quoted as described in clause (ii), the mean between the
high bid and low asked quotations for Common Stock as reported by the National
Quotation Bureau Incorporated if at least two securities dealers have inserted
both bid and asked quotations for Common Stock on at least 5 of the 10 preceding
days. If none of the conditions set forth above is met, the closing price of
Common Stock on any day or the average of such closing prices for any period
shall be the fair market value of Common Stock as determined by a member firm of
the New York Stock Exchange selected by the Company.
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(f) (A) Nothing contained herein shall be construed to require
an adjustment as a result of the issuance of Common Stock pursuant to, or the
granting or exercise of any rights under, the Company's [List employee and
shareholder plans, if any, that might otherwise result in adjustments].
(B) In addition, no adjustment in the warrant exercise
price shall be required unless and until the earlier of the following shall have
occurred: (x) such adjustment would require an increase or decrease of at least
1% in the warrant exercise price or (y) a period of 3 years shall have elapsed
from the date of the occurrence of any event requiring any such adjustment
pursuant to subparagraphs 9B(1)(a), (b) or (c) above. All adjustments shall be
made to the nearest one hundredth of a Share and the nearest cent, and any
adjustments which by reason of this subparagraph (f) are not required to be made
shall be carried forward cumulatively and taken into account in any subsequent
adjustment which (including such carry-forward) is required to be made under
this subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall require
that an adjustment be made retroactively immediately following a record date,
the Company may elect to defer (but only until five business days following the
mailing of the notice described in subparagraph 9B(5) below) issuing to the
holder of any Warrant exercised after such record date the shares of the Company
issuable upon such exercise over and above the Shares issuable upon such
exercise only on the basis of the warrant exercise price prior to adjustment.
(h) The Company may, at its option, at any time until the
expiration date, reduce the then current warrant exercise price to any amount
deemed appropriate by the Board of Directors of the Company for any period not
exceeding twenty (20) consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices required by
subparagraph 9(B)(5) twenty (20) days prior to taking such action.
(i) Except as herein otherwise expressly provided, no
adjustment in the warrant exercise price shall be made by reason of the issuance
of Shares, or securities convertible into or exchangeable for Shares, or
securities carrying the right to purchase any of the foregoing or for any other
reason whatsoever.
(j) Irrespective of any of the adjustments in the warrant
exercise price or the number of Shares, Warrant Certificates theretofore issued
may continue to express the same prices and number of shares as are stated in a
similar
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Warrant Certificate issuable initially, or at some subsequent time, pursuant to
this Agreement and such number of Shares specified therein shall be deemed to
have been so adjusted.
(2) No fractional Shares of Common Stock shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of Shares
purchased pursuant to the Warrants so exercised. Instead of any fractional Share
of Common Stock which would otherwise be issuable upon exercise of any Warrant,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last sales price (or bid price if there were
no sales) per Share of Common Stock, in either case as reported on the New York
Stock Exchange Composite Tape on the business day which next precedes the day of
exercise or, if the Common Stock is not then listed or admitted to trading on
the New York Stock Exchange, an amount equal to the same fraction of the market
price per share of Common Stock (as determined in a manner described by the
Board of Directors of the Company) at the close of business on the business day
which next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding Shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value); or (b) any consolidation or merger to
which the Company is a party (other than a consolidation or a merger in which
the Company is the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of Common Stock
issuable upon exercise of the Warrants); or (c) any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety; then the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision by amendment
of this Agreement or otherwise so that the holders of the Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable, upon such reclassification, change,
consolidation, merger, sale or conveyance as would be received by a holder of
the number of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. Such provision shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 9. The above provisions of this subparagraph 9B(3) shall similarly apply
to
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successive reclassifications, changes, consolidations, mergers, sales or
conveyances.
(4) Before taking any action which would cause an adjustment
decreasing the warrant exercise price so that the warrant exercise price is
below the then par value of the shares of Common Stock, the Company will take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Shares of Common Stock at the warrant exercise price as so
adjusted.
(5) Whenever the warrant exercise price then in effect is adjusted
as herein provided, the Company shall mail to each holder of the Warrants at
such holder's address as it shall appear on the books of the Company a statement
setting forth the adjusted warrant exercise price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon
which such adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
current or retained earnings, or (ii) the Company shall authorize the granting
to the holders of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights, or (iii) there is
to be any reclassification of the Common Stock of the Company (other than a
division or combination of its outstanding shares of Common Stock), or any
consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company is required, or (iv) any distribution is to
be made on or in respect of the Common Stock in connection with the dissolution,
liquidation or winding up of the Company, then the Company shall mail to each
holder of Warrants at such holder's address as it shall appear on the books of
the Company, at least twenty days (or ten days in any case specified in clause
(i) or (ii) above) prior to the applicable record date hereinafter specified, a
notice stating (x) the record date for such dividend, distribution or rights,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
dissolution, liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof
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shall affect any such transaction or any adjustment in the Warrant exercise
price required by this Section 9.
Section 10. Notice to Warrantholders. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
holders thereof the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company.
Section 11. Certain Covenants of the Company.
A. So long as any unexpired Warrants remain outstanding and if
required in order to comply with the Securities Act of 1933, as amended (the
"Act"), the Company covenants and agrees that it will file such post-effective
amendments to the registration statement filed pursuant to the Act with respect
to the Warrants (File No. 33-______) (or such other registration statements or
post-effective amendments or supplements) as may be necessary to permit the
Company to deliver to each person exercising a Warrant a prospectus meeting the
requirements of Section 10(a)(3) of the Act and otherwise complying therewith,
and will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants, and to
maintain such qualifications during the entire period in which the Warrants are
exercisable.
B. The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Shares will at the time of
delivery of certificates for such Shares (subject to payment of the warrant
exercise price) be duly and validly authorized and issued and fully paid and
nonassessable Shares, free from any preemptive rights and taxes, liens, charges
and security interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action
which may be necessary to cause the Shares to be duly listed on the New York
Stock Exchange or any securities exchange on which the other shares of Common
Stock of the Company are listed or on the National Market System of NASDAQ at
the dates of exercise of the Warrants.
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Section 12. Disposition of Proceeds, etc. A. The Warrant Agent shall
account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all moneys received by the Warrant Agent for the
purchase of Shares through the exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours at its
principal office in the City of __________, _________.
Section 13. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 15 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and if any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent, and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrants
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant shall have the full
force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases such Warrants shall have the full farce provided in the Warrants and in
this Agreement.
Section 14. Duties of Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of
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which the Company and the holders of Warrants, by their acceptance thereof,
shall be bound:
A. The statements contained herein and in the Warrants shall be
taken as Statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care shall have been
exercised in the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
execution
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of this Agreement except as a result of the Warrant Agent's gross negligence or
bad faith.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the registered holders of the warrants, as their respective rights or
interests may appear.
H. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in
a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
Section 15. Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by publication, of
such resignation, specifying a date when such resignation shall take effect,
which notice shall be published at the expense of the Company at least once a
week for two consecutive weeks in a newspaper of general circulation in the City
of New York prior to the date so specified. The Warrant Agent may be removed by
the Company by like notice from the Company to the Warrant Agent and the holders
of Warrants at the expense of the Company. If the Warrant Agent shall resign or
be removed or shall
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otherwise become incapable of acting, the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Warrant Agent
or by the registered holder of a Warrant (who shall, with such notice, submit
his Warrant for inspection by the Company), then, at the expense of the Company,
the Warrant Agent or the registered holder of any Warrant may apply to any court
of competent jurisdiction for the appointment of a successor to the Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or by such
a court, shall be a bank or trust company, in good standing, incorporated under
the laws of any State or of the United States of America, having at the time of
its appointment as Warrant Agent a combined capital and surplus of at least
$100,000,000. After appointment the successor Warrant Agent shall be vented with
the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Failure to file or
publish any notice provided for in this Section, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
Section 16. Identity of Transfer Agent. Forthwith upon the
appointment of any Transfer Agent for the Shares or of any subsequent Transfer
Agent for Shares issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
Section 17. Notices. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any Warrant to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
Star Banc Corporation
Star Bank Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: General Counsel
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on
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the Warrant Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address in filed in writing by
the Warrant Agent with the Company) as follows:
______________________
______________________
______________________
______________________
Any notice pursuant to this Agreement to be given or made by the
Company or the Warrant Agent to the registered holder of any Warrant shall be
sufficiently given or made (unless otherwise specifically provided for herein)
if sent by first-class mail, postage prepaid, addressed to said registered
holder at his address appearing on the Warrant register.
Section 18. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which will not materially
adversely affect the interest of the registered holders of the Warrants.
Section 19. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 20. New York Contract. This Agreement and each Warrant
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of said State.
Section 21. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or entity other than the Company and
the Warrant Agent and the holders of Warrants any legal or equitable right,
remedy or claim under this Agreement, but this Agreement shall be for the sole
and exclusive benefit of the Company and the Warrant Agent and the holders of
Warrants.
Section 22. Counterparts. This Agreement may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original,
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and all such counterparts shall together constitute but one and the same
instrument.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT --
Section 23. Acceleration of Warrants by the Company.
A. At any time on or after _____________, the Company shall have the
right to accelerate any or all Warrants at any time by causing them to expire at
the close of business on the day next preceding a specified date (the
"Acceleration Date"), if the Market Price (as hereinafter defined) of the Common
Stock equals or exceeds _______ percent (____%) of the then effective warrant
exercise price, adjusted as if no changes in such warrant exercise price had
been made pursuant to subsection 9B, on any 20 Trading Days (as hereinafter
defined) within a period of 30 consecutive Trading Days ending no more than five
Trading Days prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common Stock
is listed or admitted for trading on the New York Stock Exchange, the last
reported sale price, regular way (or, if no such price is reported, the average
of the reported closing bid and asked prices, regular way) of Common Stock, in
either case as reported on the New York Stock Exchange Composite Tape or, if the
Stock is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of NASDAQ or, if not listed
or admitted to trading on any national securities exchange or quoted on the
National Market System of NASDAQ, the average of the closing high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ, or such
other system then in use, or if on any such date the Shares of Common Stock are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange firm selected from time to
time by the Company for the purpose. "Trading Day" shall be each Monday through
Friday, other than any day on which securities are not traded in the system or
on the exchange that is the principal market for the Common Stock, as determined
by the Board of Directors of the Company.
C. In the event of an acceleration of less than all of the Warrants,
the Warrant Agent shall select the Warrants to
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be accelerated by lot, pro rata or in such other manner as it deems, in its
discretion, to be fair and appropriate.
D. Notice of an acceleration specifying the Acceleration Date shall
be sent by mailing first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder's address
appearing on the Warrant register not more than 60 days nor less than 30 days
before the Acceleration Date. Such notice of an acceleration also shall be given
no more than 20 days, and no less than 10 days, prior to the mailing of notice
to registered holders of Warrants pursuant to this Section, by publication at
least once in a newspaper of general circulation in the City of New York.
E. Any Warrant accelerated may be exercised until the 3:30 p.m., New
York City time, on the business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in Section 5.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
STAR BANC CORPORATION
By__________________________________________
Its___________________________________
Attest:
_____________________________
____________________________________________
______________________________________
Warrant Agent
By__________________________________________
Its___________________________________
Attest:
__________________________
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EXHIBIT A
[Form of Warrant]
Unless extended, Void After 3:30 P.M.,
New York City time,
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT THE FOLLOWING --
[UNTIL ______________,] THE WARRANTS REPRESENTED BY THIS CERTIFICATE SHALL NOT
BE TRANSFERABLE APART FROM THE ______________ TO WHICH THEY ARE ATTACHED, ANY
TRANSFER OF THE ______________ SHALL BE DEEMED A TRANSFER OF THE WARRANTS
ATTACHED THERETO, AND ANY ATTEMPT OF TRANSFER THE WARRANTS APART FROM THE
______________ SHALL BE VOID AND OF NO EFFECT.]
No. WA Warrant to Purchase _______
Shares of Common Stock
CLASS ___ WARRANT
STAR BANC CORPORATION
FOR VALUE RECEIVED, Star Banc Corporation (the "Company"), upon the
surrender [after _________] and prior to 3:30 P.M., New York City time,
________*_______, ____ (unless extended) of this Warrant for exercise, with the
exercise form on the reverse side hereof duly executed, at the office of
_________________, will sell and deliver or cause to be sold and delivered to
___________ or assigns (the "Warrant Holder") a certificate or certificates for
the number of whole shares purchasable, as indicated above, of fully paid and
non-assessable shares of Common Stock ($[ ] par value) of the Company (the
"Shares"), for which this Warrant is exercised, at a price of $____ per Share
(the "Warrant Price"), subject to all the terms, provisions and conditions of a
Common Stock Warrant Agreement dated as of _________, ____ (the "Warrant
Agreement"), executed by the Company and ______________________ (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated herein by reference and
made a part hereof.
1. The Warrant Price shall be payable in cash, certified check, bank
draft or postal or express money order, payable in United States dollars, to the
order of the Warrant Agent. In certain events the Warrant Price and the number
of Shares deliverable on exercise of this Warrant are subject to
___________________
* The expiration date; see page 1 of the Warrant Agreement.
22
adjustments, as provided in the Warrant Agreement. No certificates for a
fractional Share will be issued. As to any fraction of a Share which would
otherwise be purchasable on the exercise of a Warrant, the Company shall pay the
cash value thereof determined as provided in the Warrant Agreement.
2. This Warrant is issued in accordance with the Warrant Agreement
in which the rights of the Warrant Holders and the terms, provisions and
conditions upon which this Warrant has been executed and delivered may be
exercised are more fully set forth. Every Warrant Holder, by acceptance hereof,
assents to all the terms, provisions and conditions of the Warrant Agreement. A
counterpart of the Warrant Agreement is on file at the office of the Company in
Cincinnati, Ohio, and at the office of the Warrant Agent in ________, _________.
3. In the event this Warrant shall not be exercised on or before
________*_______, ____ unless said date is extended as provided for in Section
9A of the Warrant Agreement, this Warrant shall become void and all rights
hereunder shall cease.
Reference is made to the further provisions of this Warrant set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Warrant shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
_________________
* The expiration date; see page 1 of the Warrant Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed in its name and on its behalf by the facsimile signatures of its duly
authorized officers and a facsimile of its seal.
Dated: ________, __
STAR BANC CORPORATION
By__________________________________________
Its___________________________________
Attest:
_____________________________
Countersigned:
_____________________________
_____________________________
Warrant Agent
By _________________________
Authorized Signature
[REVERSE OF WARRANT]
4. Subject to the provisions of paragraph 3 contained on the face of
this Warrant, (a) this Warrant, with or without other Warrants, upon surrender
at the office of the Warrant Agent, may be exchanged for another Warrant or
Warrants of like tenor in denominations entitling the Warrant Holder to purchase
a like aggregate number of Shares, but only to the extent provided in the
Warrant Agreement, or (b) this Warrant may be transferred at the office of the
Warrant Agent by the Warrant Holder or his assigns, in person or by attorney
duly authorized in writing, but only in the number provided in the Warrant
Agreement and upon surrender of this Warrant. If this Warrant shall be exercised
in part, the Warrant Holder shall be entitled to receive, upon surrender hereof,
another Warrant or
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Warrants of like tenor for the number of whole Shares not purchased upon such
exercise.
5. No Warrant Holder shall be entitled to vote or receive dividends
or be deemed the holder of Shares of the Company for any purpose, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon the Warrant Holder, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors of the Company, or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any action (whether upon any recapitalization, issue of
securities, reclassification of securities, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings or other action affecting
shareholders (except for notices as provided for in the Warrant Agreement), or
to receive dividends or subscription rights or otherwise, until this Warrant
shall have been exercised and the Shares purchasable on the exercise hereof
shall have become deliverable as provided in the Warrant Agreement.
6. Every holder of a Warrant, by accepting this Warrant, consents
and agrees with the Company, the Warrant Agent and with every subsequent holder
of this Warrant that until this Warrant in transferred on the books of the
Warrant Agent, the Company and the Warrant Agent may treat the registered holder
hereof as the absolute owner hereof for all purposes notwithstanding any notice
to the contrary.
7. The Company represents and warrants that the Shares to be issued
by it as provided in the Warrant Agreement have been duly authorized and, when
so issued in accordance with the Warrant Agreement, will be validly issued,
fully-paid and non-assessable. The Company represents and warrants that it has
authority to execute and deliver the Warrant Agreement and the Warrants
thereunder, but the Warrant Agent makes no representation with respect thereto,
or with respect to the validity or sufficiency of the Warrants, the Warrant
Agreement or the Shares.
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FORM OF EXERCISE
(Form of exercise to be executed by the Warrant Holder
at the time of exercise)
To _____________________
________________, Warrant
Agent:
The undersigned, holder of the within Warrant, (1) exercises his
right to purchase _______ of the Shares of Common Stock ($[ ] par value) of Star
Banc Corporation, which the undersigned is entitled to purchase under the terms
of the within Warrant, and (2) makes payment in full for the number of Shares of
Common Stock so purchased by payment of $_________ in cash.
Please issue the certificate for Shares of Common Stock (and any new
Warrants in the case of a partial exercise) as follows:
--------------------------------------------------------------------------------
Print or Type Name
--------------------------------------------------------------------------------
Social Security or other Identifying Number
--------------------------------------------------------------------------------
Street Address
--------------------------------------------------------------------------------
City State Zip Code
and deliver it (together with any new Warrants in the case of a partial
exercise) to the above address unless a different address is indicated below.
Dated: ___________________
____________________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
26
To be used only for special instructions for delivery.
Deliver to:
--------------------------------------------------------------------------------
Print or Type Name
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
Xxxx Xxxxx Zip Code
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ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and
transfers unto ________________________
--------------------------------------------------------------------------------
Print or Type Name
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
Xxxx Xxxxx Zip Code
--------------------------------------------------------------------------------
Social Security or other Identifying Number
the right represented by the within Warrant to purchase _______ Shares of Common
Stock ($[ ] par value) of Star Banc Corporation to which the within Warrant
relates and appoints ________________ attorney to transfer such right on the
books of the Warrant Agent with full power of substitution in the Premises.
Dated: ___________________
____________________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
Signature Guaranteed
___________________________
