Exhibit 4.9
FINGERHUT COMPANIES, INC.
Form of Debt Warrant Agreement
THIS WARRANT AGREEMENT dated as of _____________, ____ between
Fingerhut Companies, Inc., a Minnesota corporation (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 "Indenture")
dated as of _____________ between the Company and _________________________, as
trustee (the "Trustee"), providing for the issuance from time to time of its
unsecured [senior] [subordinated] debentures, notes or other evidences of
indebtedness (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, PREFERRED STOCK OR COMMON STOCK -- [title of Debt Securities or
Preferred Stock or Common 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
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 1.01. 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 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in registered 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 signed on behalf of the Company by the
Chairman of the Board, the President or a Vice President of the Company and by
the Treasurer or one of the Assistant Treasurers or the Secretary or one of the
Assistant Secretaries of the Company 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 on 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 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 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 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].
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Section 1.03. 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 2.03(c), 3.02 and 4.01) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
_________ principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.03(c).
Section 1.04. TEMPORARY WARRANT CERTIFICATES. 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.
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 2.01. WARRANT PRICE. 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
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_________________. [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 2.02. 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 3:30 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 3:30 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 2.03. EXERCISE OF WARRANTS. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by, 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. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificates 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 [IF NON-DOLLAR DENOMINATED FUNDS -- or in such other account
designated by the Company] 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 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
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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 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate 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.
Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, 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 mutilated, 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)
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all other rights and remedies with respect to the replacement of mutilated,
lost, stolen or destroyed Warrant Certificates.
Section 3.03. 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 3.04. MERGER, CONSOLIDATION, CONVEYANCE, TRANSFER OR LEASE.
If at any time there shall be a merger, consolidation, conveyance, transfer or
lease of assets subject to Section 801 of the Indenture, then in any such event
the successor or assuming corporation referred to therein shall succeed to and
be substituted for the Company, with the same effect, subject to 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, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease complies with the provisions of this Section 3.04 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. 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
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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 4.02. 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 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, and
prior] [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 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate 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
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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 5.01. WARRANT AGENT. The Company hereby appoints
__________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein 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 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred without
negligence, bad faith or willful misconduct 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, bad faith or willful
misconduct on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the reasonable costs and
expenses of defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this 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
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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 herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
(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 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 any of the Warrant Certificates or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written demand
from a holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.02 hereof, to make any demand upon the Company.
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Section 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such 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 intended 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 5.02(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 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 as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
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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 the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. AMENDMENT. This Agreement 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 materially adversely affect the interests of the holders
of the Warrant Certificates. The parties hereto may also modify or amend this
Agreement and the terms of the Warrant Certificates with the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrant Certificates affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Warrant Certificates the
consent of the holders of which is required for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the Warrant Certificates, may be made without the consent of each holder
affected thereby.
Section 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. ADDRESSES. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
__________________________________________________, Attention: ________________
and any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Fingerhut Companies, Inc., 0000 Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer and General Counsel (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
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Section 6.04. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of ________________.
Section 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of 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 6.06. 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 6.07. 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 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
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IN WITNESS WHEREOF Fingerhut Companies, Inc. and
___________________________ 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.
FINGERHUT COMPANIES, INC.
By
------------------------------------
Its
--------------------------------
Attest:
----------------------------------
[WARRANT AGENT]
By
------------------------------------
Its
--------------------------------
Attest:
----------------------------------
-13-
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[FORM OF LEGEND IF Prior to ___________________ this
OFFERED SECURITIES WITH Warrant Certificate cannot be
WARRANTS WHICH ARE NOT transferred or exchanged unless
IMMEDIATELY DETACHABLE. attached to a [Title of Offered
Securities].]
[FORM OF LEGEND IF WARRANTS Prior to _______________, Warrants
ARE NOT IMMEDIATELY evidenced by this Warrant
EXERCISABLE. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FINGERHUT COMPANIES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON _______________
No. ____ __________ Warrants
This certifies that _________________________ 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 registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 3:30 p.m., New York City time, on _____________ and] on or
before 3:30 p.m., New York City time, on _________________, _________ principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of Fingerhut
Companies, 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, and by paying in
full [in lawful money of the United States of America] [applicable currency] [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 [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or _________________],
which is, on the date hereof, at the address 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 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 4.01 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, dated as of ___________ between the Company and
___________________, 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, transfer of this] [IF
OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE -- Transfer of
this] Warrant Certificate may 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
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attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
[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.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
FINGERHUT COMPANIES, INC.
By:
--------------------------------
Authorized Officer
Attest:
----------------------------------
Countersigned:
----------------------------------
As Warrant Agent
By:
-------------------------------
Authorized Signature
A-3
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [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 in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ________________ [or ___________________], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, 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
Fingerhut Companies, Inc. and represents that he has tendered payment for such
Warrant Securities in [Dollars] [applicable currency] [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 Fingerhut
Companies, Inc., c/o [insert name and address of Warrant Agent], in the amount
of _________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
If the number of Warrants exercised is 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)
A-4
Signature
------------------------------
Signature Guaranteed (Signature must conform in
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 Stock
Exchange)]
The warrants evidenced hereby may be exercised at the following
address:
By hand at ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
By mail at ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate 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 Stock Exchange)
Signature Guaranteed
----------------------------------
A-6
