Exhibit 4.6
EMCOR GROUP, INC.
and
[WARRANT AGENT]
As Warrant Agent
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Warrant Agreement -- Debt Securities
Dated as of , 199_
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EMCOR GROUP, INC.
Form of Debt Warrant Agreement*
THIS WARRANT AGREEMENT dated as of , 199_ between EMCOR Group,
Inc., a Delaware company (hereinafter called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to) and , as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture") dated as of [FOR
SENIOR DEBT: , between the Company and , as trustee
(the "Senior Trustee")] [FOR SENIOR SUBORDINATED DEBT: , between
the Company and , as trustee (the "Senior Subordinated
Trustee") [FOR SUBORDINATED DEBT: , between the Company and
, as trustee (the "Subordinated Trustee")], providing for the issuance
from time to time of its unsecured [senior] [senior subordinated] [subordinated]
debentures, notes or other evidences of indebtedness (the "[Senior] [Senior
Subordinated] [Subordinated] Debt Securities"), to be issued in one or more
series as provided in the [Senior] [Senior Subordinated] [Subordinated]
Indenture; [if Warrant Securities are not under same Indenture as Debt
Securities to which they are attached -- and an Indenture (the "[Senior] [Senior
Subordinated] [Subordinated] Indenture," the Senior, Senior Subordinated and
Subordinated Indentures being referred to collectively as the "Indentures")
dated as of between the Company and , as trustee (the "[Senior] [Senior
Subordinated] [Subordinated] Trustee," (the Senior, Senior Subordinated and
Subordinated Trustees being referred to collectively as the "Trustee"),
providing for the issuance from time to time of its [senior] [senior
subordinated] [subordinated] debentures, notes or other evidences of
indebtedness (the "[Senior] [Senior Subordinated] [Subordinated] Debt
Securities", the [Senior] [Senior Subordinated] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [
] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually a
"Warrant") representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the "Warrant Securities"), such
warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates"; and
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* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
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WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of . [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence Warrants for each [ principal amount]
[ shares] of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered] [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
and may have such letters, numbers, or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be executed on behalf of the
Company by [the Chairman of the Board, the President, any Senior Vice President
or any Vice President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced in the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon
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any Warrant Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding aggregate principal amount of Warrant Securities (except as provided
in Sections 1.4, 2.3(c), 3.2 and ) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such issuance of
the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
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If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ], without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company shall
execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. During the period from ,
through and including , the exercise price of each Warrant shall
be plus [accrued amortization of the original issue discount]
[accrued interest] from . During the period from ,
through and including , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from .
[In each case, the original issue discount will be amortized at a % annual
rate, computed on an annual basis using the "interest" method and using a
360-day year consisting of twelve 30-day months]. Such purchase price of
Warrant Securities is referred to in this Agreement as the "Warrant Price".
[The original issue discount for each principal amount of Warrant
Securities is .]
SECTION 2.2. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [ ] and at or before 5 P.M., [New York City time], on
[or such later date as the Company may designate, by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth
in the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant
not exercised at or before 5 P.M., [New York City time], on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period
specified in Section 2.2 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at ], provided that such exercise is subject to
receipt within five business days of such [payment] [wire transfer] by the
Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed [including any applicable certifications if
the Warrant Securities are issuable in bearer form]. The date on
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which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in an account of the
Company maintained with it and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture relating to the Warrant
Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company
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of the Ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity reasonably satisfactory to the Warrant
Agent and the Company, and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If at
any time there shall be a consolidation merger, sale or conveyance to which
Article of the Indenture relating to the Warrant Securities applies, then in any
such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
such Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name pursuant
to such Indenture, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
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The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance complies with the provisions of this Section 3.4 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security on the register of the
Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [The Warrant Agent shall
keep, at its corporate trust office [and at ], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ] for exchange or registration of transfer, properly endorsed
or accompanied by appropriate instruments of registration of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent.] No service charge shall be made for any exchange [or
registration of transfer] of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer], an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange [or registration of transfer] which will result
in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange [or registration of transfer] of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange [or registration of transfer].
SECTION 4.2. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered
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Security as the owner of the Warrant Certificates initially attached thereto for
any purpose or as the person entitled to exercise the rights represented by the
Warrants evidenced by such Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date,] [if registered Warrants -- and
prior to due presentment of a Warrant Certificate for registration of transfer,]
the Company, the Warrant Agent and all other persons may treat the holder of a
Warrant Certificate as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange[, registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.1. Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
hereby accepts such appointment. The Warrant Agent shall have the powers
and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant
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Agent hereunder, as well as the costs and expenses of defending against any
claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the
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Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.2 hereof, to make any demand upon the Company.
SECTION 5.3. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of
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a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which substantially all the assets and business of the Warrant Agent have been
transferred, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendment. (a) This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not affect adversely the interests of the holders of the
Warrant Certificates.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of not fewer than a
majority in number of the then outstanding unexercised Warrants affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that decreases or increases the Exercise Price,
shortens the period of time during which the Warrants may be exercised or
otherwise materially and adversely affects the exercise rights of the Holders or
reduces the percentage of outstanding Warrants the consent of the holder of
12
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each holder affected thereby.
SECTION 6.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent], ,Attention: and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to EMCOR Group, Inc., 000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx, Xxxxxxx, XX, 00000 (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.6. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.8. 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.
13
SECTION 6.9. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, EMCOR Group, Inc. and [Warrant Agent] have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
EMCOR GROUP, INC.
By _________________________
Title:
Attest:
________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
________________________
Title:
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities with
Warrants which are not immediately
detachable.
Prior to _______________ this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not
immediately exercisable.
Prior to _______________, Warrants
evidence by this Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
EMCOR GROUP, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the] [ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the [bearer] [registered owner]
qualifying as a "holder" of this Warrant Certificate, as hereinafter defined] to
purchase, at any time [after 5 P.M., [New York City time], on and]
on or before 5 P.M., [New York City time], on , principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of EMCOR
Group, Inc. (the "Company"), issued and to be issued under the Indenture (as
hereinafter defined), on the following basis: during the period from ,
through and including the exercise price of each Warrant will
be plus [accrued amortization of the original issue discount]
[accrued interest] from ; during the period from , through
and including , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from ; [in each case, the original issue discount will be amortized
at a % annual rate, computed on an annual basis using the "interest" method
and using a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each principal amount of
Warrant Securities is .] The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof,
A-1
including any applicable certifications if the Warrant Securities are issuable
in bearer form, and by paying in full in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available funds,
the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[Warrant Agent], or its successor as warrant agent (the "Warrant Agent"),
[or ] currently at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior
to (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] [the bearer of this Warrant
Certificate] [the person in whose name at the time this Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an indenture (the "Indenture"), dated as of [FOR
SENIOR DEBT: , between the Company and The Chase Manhattan Bank]
[FOR SENIOR SUBORDINATED DEBT: , between the Company and United States
Trust Company of New York] [FOR SUBORDINATED DEBT: , between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at ].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to , this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may
A-2
be registered when this Warrant Certificate is surrendered at the corporate
trust office of the Warrant Agent [or ] by the registered owner or
his assigns,in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[effected by delivery and the Company and the Warrant Agent may treat the bearer
hereof as the owner for all purposes.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________, 199_.
EMCOR GROUP, INC.
By: _____________________
Attest:
___________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. [or ], which
[payment] [wire transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, the holder must complete the
information required below and present this Warrant Certificate in person or by
mail (certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase
principal amount of the [Title of Warrant Securities ] (the "Warrant
Securities") of EMCOR Group, Inc. and represents that he has tendered payment
for such Warrant Securities in Dollars [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of EMCOR Group, Inc.,
c/o , [address of Warrant Agent], in the amount of in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated: ____________________ Name_________________________________
______________________________ Address______________________________
(Insert Social Security or Other
Identifying Number of Holder) ______________________________
Signature___________________________
[If registered Warrant --
[If registered Warrant -- Signature (Signature must conform in
Granteed all respects to name of holder
______________________] as specified on face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchanges)]
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
_____________________________
_____________________________
_____________________________
By mail at ___________________________________
_____________________________
_____________________________
_____________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-5
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED _____________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_______________________
Signature
(Signature must
conform in all
respects to name of
holder as specified
on the face of this
Warrant Certificate
and must bear a
signature guarantee
by a bank, trust
company or member
broker of the New
York, Midwest or
Pacific Stock
Exchange)
Signature Guaranteed
______________________________
A-6
