Exhibit 4(p)
NEW YORK COMMUNITY BANCORP, INC.
and
WILMINGTON TRUST COMPANY,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ___________, 2002
THIS WARRANT AGREEMENT, dated as of ___________, 2002, between New York
Community Bancorp, Inc., a Delaware corporation (the "Company"), and Wilmington
Trust Company, a Delaware banking corporation, as warrant agent the ("Warrant
Agent").
RECITALS:
WHEREAS, the Company proposes to issue warrants (the "Warrants")
representing the right to purchase, under certain circumstances described
herein, Common Stock (as defined herein); and
WHEREAS, the Company desires that the Warrant Agent act on behalf of the
Company in connection with the issuance of the Warrants as provided herein and
the Warrant Agent is willing to so act; and
WHEREAS, the Company has duly authorized the execution and delivery of this
Warrant Agreement to provide for the issuance of Warrants to be exercisable at
such times and for such prices, and to have such other provisions, as shall be
hereinafter provided; and
WHEREAS, the Company and the Trust are entering into a unit agreement (the
"Unit Agreement") with, among others, Wilmington Trust Company, as unit agent
(the "Unit Agent"), whereby the Units, which will each consist of a Preferred
Security and a Warrant, will be issued;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Whenever used in this Warrant Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. Capitalized terms used herein but not
otherwise defined shall have the meanings ascribed thereto in the Unit Agreement
or the Declaration, as the case may be.
"Accreted Value" has the meaning set forth in the Declaration.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for the beneficial interests in the Global Warrants, the rules and procedures
of the Depositary that apply to such transfer or exchange.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Warrant Agent
"Book-Entry Warrant" means a Global Warrant.
"Business Day" means any day other than a Saturday or a Sunday or a day on
which banking institutions in (i) the Borough of Manhattan in The City of New
York, or (ii) Wilmington, Delaware are authorized or required by law, regulation
or executive order to close.
"Calculation Agent" has the meaning ascribed thereto in Section 6.2(l).
"Cash Payment" means, with respect to any Warrant, the payment in full by
the Holder thereof of the Exercise Price of such Warrant in lawful money of the
United States of America, in cash or by certified or official bank check to the
Warrant Agent, or by wire transfer to the account indicated to such Holder by
the Warrant Agent, as designated by the Company by written notice to the Warrant
Agent.
"Cede" means Cede & Co., the nominee of DTC.
"Change of Control" has the meaning ascribed thereto in the Unit Agreement.
"Change of Control Notice Date" has the meaning ascribed thereto in Section
4.2(b).
"Change of Control Redemption" has the meaning ascribed thereto in Section
4.2(b).
"Change of Control Redemption Date" has the meaning ascribed thereto in
Section 4.2(b).
"Change of Control Redemption Right" has the meaning ascribed thereto in
Section 4.2(b).
"Common Stock" means the common stock of the Company.
"Company" means New York Community Bancorp, Inc., a Delaware corporation,
and any successor thereto.
"Conditions to a Remarketing" shall mean the conditions to a Remarketing
specified in the Declaration. A Failed Remarketing shall not be considered an
inability to satisfy the Conditions to a Remarketing.
"Conversion Price" shall be the Exercise Price divided by the Conversion
Ratio.
"Conversion Ratio" shall be the Exercise Amount.
"Date of Determination" shall mean, with respect to the Exercise Price of a
Warrant (i) in connection with a Redemption of such Warrant or an exercise of
such Warrant in lieu of Redemption pursuant to Section 3.3, the end of the
Business Day preceding the Remarketing Date, and (ii) otherwise, the date of
exercise or, in the case of a determination of the Warrant Value pursuant to
Section 4.2(b), the date of redemption of such Warrant.
"Declaration" means the Amended and Restated Declaration of Trust, dated as
of __________, 2002, of the Trust, as the same may be amended from time to time
in accordance with its terms.
"Definitive Warrant" shall mean a Warrant Certificate in definitive,
registered form.
"Depositary" means DTC until another Depositary becomes its successor.
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"DTC" shall mean The Depository Trust Company, and any successor thereto.
"Ex Date" shall mean:
(i) with respect to any issuance or distribution, the first date on
which the Common Stock trades regular way on the relevant exchange or in
the relevant market from which the Trading Price was obtained without the
right to receive such issuance or distribution;
(ii) with respect to any subdivision or combination of shares of
Common Stock, the first date on which the Common Stock trades regular way
on such exchange or in such market after the time at which such subdivision
or combination becomes effective, and
(iii) with respect to any tender or exchange offer, the first date on
which the Common Stock trades regular way on such exchange or in such
market after the Tender Expiration Time of such offer.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exercise Amount" shall mean 1.4036; provided, however, that such amount is
subject to adjustment as provided in Article IV.
"Exercise Conditions" shall mean, with respect to any Warrant on any date
on which such Warrant is to be exercised by the Holder thereof,
(1) a registration statement covering the issuance and sale of Common
Stock to the holders of Warrants upon exercise of such Warrants shall be
effective under the Securities Act, or such issuance and sale shall be
exempt from the registration requirements of the Securities Act;
(2) the shares of Common Stock shall be registered, qualified or
deemed to be exempt under the securities laws of the state of residence of
such holder of Warrants; and
(3) a then current prospectus relating to the Common Stock shall be
available for delivery to exercising holders of the Warrants.
"Exercise Price" shall mean, with respect to any Warrant, $50.00, subject
to adjustment as provided in Article IV.
"Expiration Date" shall mean, with respect to any Warrant, the earlier of
5:00 p.m., New York time, on (i) May 7, 2051, subject to extension pursuant to
the provisions of Section 3.1, and (ii) the Redemption Date.
"Failed Remarketing" shall mean the inability of the Remarketing Agent by
4:00 p.m., New York time, on the Remarketing Date, to remarket, pursuant to the
Remarketing Agreement, all of the Preferred Securities deemed tendered for
purchase.
"Fair Market Value" shall mean the amount that a willing buyer would pay a
willing seller in an arm's length transaction.
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"Global Warrants" means a Certificate that evidences all or part of the
Warrants and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" shall mean, with respect to a Warrant Certificate at any date, (i)
if such Warrant Certificate is not held pursuant to the Unit Agreement, the
person or persons in whose name such Warrant Certificate shall then be
registered as set forth in the Warrant Register maintained by the Warrant Agent
pursuant to Section 5.1(a) for such purpose or (ii) if such Warrant is held
pursuant to the Unit Agreement, the person or persons in whose name the related
Unit is registered as set forth in the Unit Register.
"Investment Company Event" has the meaning set forth in the Declaration.
"Market Capitalization" means, with respect to the Company as of any date,
the product of (i) the Market Price of shares of Common Stock as of such date
and (ii) the number of shares of Common Stock outstanding, excluding treasury
shares, as of such date.
"Market Price" shall mean the average of the daily Trading Prices per share
of Common Stock for the ten consecutive Trading Days immediately prior to the
date in question; provided, however, that if:
(i) the Ex Date for any event other than the issuance or distribution
requiring such computation that requires an adjustment to the Exercise
Amount pursuant to Section 4.1(a), (b), (c), (d), (e) or (f) occurs during
such ten consecutive Trading Days, the Trading Price for each Trading Day
prior to the Ex Date for such other event shall be adjusted by multiplying
such Trading Price by the same fraction by which the Exercise Amount is so
required to be adjusted as a result of such other event;
(ii) the Ex Date for any event other than the issuance or distribution
requiring such computation that requires an adjustment to the Exercise
Amount pursuant to Section 4.1(a), (b), (c), (d), (e) or (f) occurs on or
after the Ex Date for the issuance or distribution requiring such
computation and prior to the day in question, the Trading Price for each
Trading Day on and after the Ex Date for such other event shall be adjusted
by multiplying such Trading Price by the reciprocal of the fraction by
which the Exercise Amount is so required to be adjusted as a result of such
other event; and
(iii) the Ex Date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into account any
adjustment required pursuant to clause (i) or (ii) above, the Trading Price
for each Trading Day on or after such Ex Date shall be adjusted by adding
thereto the amount of any cash and the Fair Market Value as determined by
the Board of Directors in a manner consistent with any determination of
such value for purposes of Section 4.1(d) or (f), whose determination shall
be conclusive and set forth in a Board Resolution of the evidences of
indebtedness, shares of capital stock or assets being distributed
applicable to one share of Common Stock as of the close of business on the
day before such Ex Date.
For purposes of any computation under Section 4.1(f), the Market Price of the
Common Stock on any date shall be deemed to be the average of the daily Trading
Prices per share of Common Stock for such day and the next two succeeding
Trading Days; provided, however, that if the Ex Date for any event other than
the tender offer requiring such computation that requires an adjustment to the
Exercise Amount pursuant to Section 4.1(a), (b), (c), (d), (e) or (f) occurs on
or after the Tender Expiration Time for the tender or exchange offer requiring
such computation and prior to the day in
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question, the Trading Price for each Trading Day on and after the Ex Date for
such other event shall be adjusted by multiplying such Trading Price by the
reciprocal of the fraction by which the Exercise Amount is so required to be
adjusted as a result of such other event.
"Maturity Remarketing Date" shall mean May 5, 2051.
"Non-Electing Share" shall have the meaning ascribed thereto in Section
4.2(a).
"No Recognition Opinion" shall have the meaning set forth in the
Declaration.
"Optional Redemption Remarketing Event" means a Remarketing Event that
occurs because:
(1) on any date on or after November 4, 2007 but prior to May 7, 2051,
the Trading Price of a share of the Common Stock exceeds and has exceeded
for at least 20 Trading Days within the immediately preceding 30
consecutive Trading Days, 125% of the Conversion Price, which initially
shall be $44.53 per share; and
(2) within ten Business Days of such date, the Company causes written
notice of its election to redeem the Warrants to be given to the Holders of
the Preferred Securities, the holders of the Units and the holders of the
Warrants.
"Participant" has the meaning set forth in Section 5.1(e).
"Preferred Securities" has the meaning set forth in the Declaration.
"Purchased Shares" has the meaning set forth in Section 4.1(f).
"Record Date" means, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock have the right to
receive any cash, securities or other property or in which the Common Stock or
other applicable security is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property whether
such date is fixed by the Board of Directors or by statute, contract or
otherwise.
"Redemption" means a redemption of the Warrants pursuant to Sections 3.3
and 3.4.
"Redemption Conditions" means, with respect to any proposed Redemption,
that (i) as of the date on which the Company elects to redeem the Warrants and
on the Redemption Date, the Exercise Conditions shall be satisfied; provided,
however, that clause 3(ii)(C) of the definition of "Exercise Conditions" need
only be satisfied on the Redemption Date, (ii) on the Redemption Date, the
Company shall have complied with all other applicable laws and regulations, if
any including, without limitation, the Securities Act, necessary to permit the
redemption of the Warrants, and (iii) an Optional Redemption Remarketing Event
or a Special Event Remarketing Event shall have occurred and the Company shall
have satisfied the applicable conditions to a Remarketing set forth in both the
Declaration and the Remarketing Agreement.
"Redemption Date" means a date selected by the Company not less than five
nor more than 20 Business Days after written notice of such redemption is given
to the Holders to redeem the Warrants.
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"Reference Period" shall have the meaning set forth in Section 4.1(d).
"Regulatory Capital Event" shall have the meaning set forth in the
Declaration.
"Remarketing Agent" means the remarketing agent (or any successor
remarketing agent) selected by the Sponsor, which will initially be Xxxxxxx
Xxxxx Xxxxxx Inc.
"Remarketing Agreement" means the Remarketing Agreement to be entered into
among the Company, the Trust and the Remarketing Agent.
"Remarketing Date" means:
(1) with respect to an Optional Redemption Remarketing Event or a
Special Event Remarketing Event, two Business Days prior to the Redemption
Date; and
(2) with respect to the expiration of the Warrants, the Maturity
Remarketing Date.
"Remarketing Payment" means, with respect to any Warrant that is held
pursuant to the Unit Agreement, the application of the proceeds of the
Remarketing of the related Preferred Security in an amount equal to the Exercise
Price of such Warrant in accordance with the Remarketing Agreement and the Unit
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Special Event Remarketing Event" means a Remarketing Event that occurs
upon the occurrence of:
(1) a Tax Event or an Investment Company Event; provided that the
Administrative Trustees have been informed by an independent law firm that
such firm, for substantive reasons, cannot deliver a No Recognition
Opinion; or
(2) a Regulatory Capital Event; and
(3) the Company elects to cause a Remarketing of the Preferred
Securities to occur and causes written notice of its election to be given
to the Holders of the Preferred Securities, the holders of the Units and
the holders of the Warrants.
"Successful Remarketing" means, with respect to any Redemption Date, the
contemporaneous settlement scheduled to occur on such Redemption Date of the
Remarketing that commenced on the corresponding Remarketing Date.
"Tax Event" has the meaning set forth in the Declaration.
"Tender Expiration Time" has the meaning set forth in Section 4.1(f).
"Trading Day" means any day on which shares of Company common stock or
other capital stock then issuable upon exercise of the warrants:
(i) are not suspended from trading on any national securities
association or exchange or over-the-counter market at the close of
business; and
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(ii) have traded at least once on the national securities association
or exchange or over-the-counter market that is the primary market for the
trading of Company common stock.
"Trading Price" of a security on any date of determination means:
(i) the closing sale price or, if no closing sale price is reported,
the last reported sale price of such security regular way on the New York
Stock Exchange on that date;
(ii) if such security is not so listed on the New York Stock Exchange,
the closing sale price as reported on that date in the composite
transactions for the principal U.S. securities exchange on which such
security is listed;
(iii) if such security is not listed on the New York Stock Exchange or
any other U.S. national or regional securities exchange on that date, the
closing sale price as reported on that date by the Nasdaq National Market;
(iv) if such security is not so listed on a U.S. national or regional
securities exchange or quoted on the Nasdaq National Market on that date,
the last price quoted by Interactive Data Corporation for that security on
the date or, if Interactive Data Corporation is not quoting such price, a
similar quotation service selected by the Company;
(v) if such security is not so quoted, the average mid-point of the
last bid and ask prices for such security on that date from at least two
dealers recognized as market-makers for such security selected by the
Company for this purpose; or
(vi) if such security is not so quoted, the average of the last bid
and ask prices for such security on that date from a dealer engaged in the
trading of such securities selected by the Company for this purpose.
"Trigger Event" shall have the meaning ascribed thereto in Section 4.1(d).
"Trust" shall mean New York Community Capital Trust V, a Delaware statutory
trust, and any successor thereto.
"Unit" means the collective rights and obligations of a holder of a unit
certificate issued under the Unit Agreement in respect of a Preferred Security
and a Warrant.
"Unit Agent" has the meaning set forth in the Recitals.
"Unit Agreement" has the meaning set forth in the Recitals.
"Unit Register" means the Register of Unit holders to be maintained by the
Unit Agent pursuant to the Unit Agreement.
"Warrant" or "Warrants" has the meaning set forth in the Recitals.
"Warrant Agent" means
"Warrant Certificate" means each registered certificate including, without
limitation, the Global Warrants issued by the Company pursuant to this Warrant
Agreement evidencing a Warrant, substantially in the form of Exhibit A hereto.
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"Warrant Register" has the meaning set forth in Section 5.1(a).
"Warrant Value" means:
(1) with respect to any Warrant redeemed by the Company pursuant to
Section 3.3(a) and Section 4.2(b) hereof, $50 less the Accreted Value of
the Preferred Securities as of the end of the Business Day preceding the
corresponding Remarketing Date or the Change of Control Payment Dates, as
applicable;
(2) with respect to any Warrant exercised by the Holder in lieu of a
redemption pursuant to Section 3.3(b) hereof, the Exercise Price.
Section 1.2 Interpretive Provisions. With respect to all terms in this
Warrant Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Indenture; references to
"persons" include their permitted successors and assigns; and the term
"including" means "including without limitation." All references herein to
Articles, Sections, Subsections and Exhibits are references to Articles,
Sections, Subsections and Exhibits contained in or attached to this Warrant
Agreement unless otherwise specified, and each such Exhibit is part of the terms
hereof.
ARTICLE II
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
Section 2.1 Issuance of Warrants. The Company hereby issues the Warrants
described herein, each of which evidences the right of the Holder thereof, under
the terms and conditions provided for herein and in the related Warrant
Certificate, to purchase the Exercise Amount (subject to adjustment as provided
in Article IV) of fully paid and non-assessable shares of Common Stock at the
Exercise Price. Each Warrant shall be, after issuance thereof, separately
transferable from the Preferred Security which, together with such Warrant,
comprises the related Unit.
Section 2.2 Form, Denomination and Execution of Warrant Certificates.
(a) Upon the execution and delivery of this Agreement, the Warrants will be
issued as a component of a Unit, in definitive, fully registered form (the
"Global Unit Certificate"), substantially in the form set forth in Exhibit A of
the Unit Agreement.
Each Warrant Certificate shall evidence one or more Warrants. Upon the
execution and delivery of this Agreement, the Global Warrant shall represent no
outstanding Warrants, as specified in the "Schedule of Increases or Decreases in
Global Certificate" attached thereto or otherwise in accordance with the
Applicable Procedures, and the Global Unit Certificate shall represent 5,500,000
outstanding Warrants, as specified in the "Schedule of Increases or Decreases in
Global Certificate" attached thereto or otherwise in accordance with the
Applicable Procedures. Thereafter, each of the Global Warrant and the Global
Unit Certificate shall represent such outstanding Warrants as shall be specified
in the "Schedule of Increases or Decreases in Global Certificate" attached to
each such certificate or otherwise in accordance with the Applicable Procedures.
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(b) The Warrant Certificates shall be signed in the name and on behalf of
the Company by its Chairman of the Board of Directors, its Vice Chairman of the
Board of Directors, its President, any Executive Vice President, any Senior Vice
President, its Treasurer, its Secretary or an Assistant Secretary. Such
signatures may be manual or facsimile signatures of the present or any future
holder of any such office and may be imprinted or otherwise reproduced on the
Warrant Certificates.
(c) No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be deemed issued or exercisable, until such Warrant
Certificate has been authenticated by the manual or facsimile signature of the
Warrant Agent. Such authentication by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence that the
Warrant Certificate so authenticated has been duly issued hereunder.
(d) In case any officer of the Company who shall have signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificate so signed shall have been authenticated
and delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company, although at the date of the execution of this Warrant
Agreement such person was not such an officer.
(e) Every Global Warrant, executed on behalf of the Holders and delivered
hereunder shall bear a legend in substantially the following form:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF
AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE 1.4036
SHARES (SUBJECT TO ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF THE COMPANY AT
THE EXERCISE PRICE SET FORTH IN THE BELOW-REFERENCED WARRANT AGREEMENT AND A
PREFERRED SECURITY OF NEW YORK COMMUNITY CAPITAL TRUST V (THE "TRUST"). THE
WARRANTS AND THE PREFERRED SECURITIES MAY BE SEPARATED AND TRANSFERRED
SEPARATELY, AND RE-ATTACHED, IN ACCORDANCE WITH THE PROVISIONS OF THE UNIT
AGREEMENT.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE
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OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
WARRANT AGREEMENT REFERRED TO HEREIN."
Section 2.3 Issuance and Delivery of Warrant Certificates. (a) Upon the
execution and delivery of this Agreement, the Company shall deliver one or more
Global Unit Certificates executed by the Company to the Warrant Agent for
authentication. Except as provided in the following sentence, the Warrant Agent
shall, upon written request of the Company and compliance with the requirements
in Section 1.2 of the Unit Agreement, thereupon authenticate such Warrant
Certificates and deliver the same to DTC. Subsequent to the original issuance,
the Warrant Agent shall authenticate new Warrant Certificates only if such
Warrant Certificates are issued in exchange or substitution for one or more
previously authenticated Warrant Certificates or in connection with their
transfer, as hereinafter provided.
(b) Temporary Warrant Certificates. Pending the preparation of Definitive
Warrants, the Company may execute, and, upon written request of the Company and
compliance with the requirements in Section 1.2 of the Unit Agreement, the
Warrant Agent shall authenticate and deliver, temporary Warrant Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
substantially of the tenor of the Definitive Warrants in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officer executing such Warrant Certificates may determine, as
evidenced by such officer's execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
Definitive Warrants to be prepared without unreasonable delay. After the
preparation of Definitive Warrants, the temporary Warrant Certificates shall be
exchangeable for Definitive Warrants upon surrender of the temporary Warrant
Certificates at the corporate trust office of the Warrant Agent, without charge
to the Holder thereof. Upon surrender for cancellation of any one or more
temporary Warrant Certificates, the Company shall execute and, upon request of
the Company and compliance with the requirements in Section 1.2 of the Unit
Agreement, the Warrant Agent shall authenticate and deliver in exchange therefor
Definitive Warrants 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 Warrant Agreement as Definitive Warrants.
Section 2.4 Lost, Stolen, Destroyed or Mutilated Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and of indemnity other than in connection with any
mutilated Warrant Certificates surrendered to the Warrant Agent for cancellation
reasonably satisfactory to them, the Company shall execute, and upon request of
the Company and compliance with the requirements in Section 1.2 of the Unit
Agreement, Warrant Agent shall authenticate and deliver, in exchange for or in
lieu of each lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate evidencing a like number of Warrants of the same tenor. Upon
the issuance of a new Warrant Certificate under this Section, the Company may
require
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the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection therewith 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 a contractual obligation of the Company, whether or not such
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant rights and remedies
with respect to the replacement of lost, stolen, destroyed or mutilated Warrant
Certificates.
Section 2.5 Payment of Certain Taxes. The Company shall pay all stamp and
other duties, if any, to which this Warrant Agreement or the original issuance
of the Warrants or Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
Section 2.6 Holders of Warrants; Rights of Holders.
(a) At any time that a Warrant is held pursuant to the Unit Agreement, the
Company shall, or shall cause the Unit Registrar to, make available to the
Warrant Agent at all times such information as to holders of Units as may be
necessary to keep the Warrant Register up to date.
(b) No Warrant or Warrant Certificate shall entitle the Holder thereof to
any of the rights, preferences and privileges of a holder of Common Stock,
including without limitation any dividend, voting, redemption, conversion,
exchange or liquidation rights.
(c) Any Holder may, without the consent of the Warrant Agent, enforce, and
may institute and maintain, any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, its right to exercise its
Warrants as provided in the related Warrant Certificates and this Warrant
Agreement.
ARTICLE III
DURATION AND EXERCISE OF WARRANTS
Section 3.1 Duration of Warrants.
(a) Each Warrant shall be exercisable on any date prior to the Expiration
Date by the Holder thereof at the Exercise Price; provided that the Exercise
Conditions are met as of such date. Each Warrant not exercised at or before 5:00
p.m., New York time, on its Expiration Date shall become void, and all rights of
the Holder of such Warrant under the related Warrant Certificate and under this
Agreement shall cease.
(b) Notwithstanding Section 3.1(a), the Expiration Date will be extended
if, during the 90 days immediately preceding the scheduled Expiration Date, the
Company:
(i) was required to but did not maintain an effective registration
statement under the Securities Act with respect to the maximum number of
shares of Common Stock underlying the Warrants;
(ii) did not maintain the registration or qualification of the shares
of Common Stock underlying the Warrants under the applicable state
securities laws; or
11
(iii) was required to but did not deliver a then current prospectus to
exercising Holders of the Warrants.
In any of those events, the Expiration Date will extend to the first date
after May 7, 2051 after which the Company has for a 90-day period (1) maintained
an effective registration statement under the Securities Act, (2) maintained the
registration or qualification under the applicable state securities laws and (3)
delivered a then current prospectus to exercising Holders of the Warrants.
Section 3.2 Exercise of Warrants.
(a) Subject to Section 3.3 and Article IV, the Holder of a Warrant shall
have the right, prior to the Expiration Date, at such Holder's option, to
exercise such Warrant and purchase the Exercise Amount of Common Stock at the
Exercise Price. A Warrant may be exercised by giving written notice to the
Warrant Agent no later than 5:00 p.m. New York time on the Business Day
preceding the proposed date of exercise of such Warrant and completing the form
of election to purchase set forth on the reverse side of such Warrant
Certificate, and delivering the same, together with the related Warrant
Certificate in the case of Definitive Warrants, to the Warrant Agent no later
than 5:00 p.m., New York time, on the date of such exercise, together with a
Cash Payment unless, in accordance with Section 3.3(c), a Remarketing Payment is
to be made. In no event may a Holder satisfy its obligation to pay the Exercise
Price by tendering Preferred Securities.
(b) On the date of exercise of a Warrant, the Company shall issue, and the
Warrant Agent shall deliver, to or upon the written order of the Holder of such
Warrant, the Exercise Amount of Common Stock to which such Holder is entitled,
registered in such name or names as may be directed by such Holder. The date on
which such Warrant Certificate and payment are received by the Warrant Agent as
aforesaid shall be deemed to be the date on which the related Warrant is
exercised and the related Common Stock is issued. Notwithstanding anything to
the contrary in this paragraph (b), (i) no fractional shares of Common Stock
shall be issued by the Company upon the exercise of any Warrant, (ii) if more
than one Warrant shall be exercised at the same time by the same Holder, the
number of shares of Common Stock issuable in connection with such exercise shall
be computed on the basis of the aggregate Exercise Amount of the Warrants so
exercised, and (iii) on the date a Holder exercises such Holder's Warrant, the
Company shall pay such Holder an amount in cash equal to the then-current Market
Price multiplied by the related fraction of Common Stock for such fractional
shares, computed to the nearest whole cent.
(c) If fewer than all of the Warrants evidenced by a Warrant Certificate
are exercised, the Company shall execute, and upon request of the Company and
compliance with the requirements in Section 1.2 of the Unit Agreement, the
Warrant Agent shall authenticate and deliver, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by it in connection
with a Cash Payment of the Exercise Price into the account of the Company
maintained with it for such purpose, and shall notify the Company by telephone
by 5:00 p.m., New York time, of each day on which a Cash Payment of the Exercise
Price for Warrants has been so deposited of the amount of such deposit into its
account. The Warrant Agent shall promptly confirm such notice in writing to the
Company.
(e) The Warrant Agent shall, from time to time, as promptly as practicable
following written request of the Company or an exercise of Warrants, advise the
Company of (i) the number of Warrants exercised as provided herein, (ii) the
instructions of each Holder with respect to delivery of the Common Stock to
which such Holder is entitled upon such exercise, and (iii) such
12
other information as the Company shall reasonably request in writing. Such
notice may be given by telephone to be promptly confirmed in writing.
(f) The Company shall pay all documentary stamp taxes attributable to the
initial issuance of Warrants or to the issuance of Common Stock to the
registered Holder of such Warrants upon exercise thereof; provided, however,
that such Holder, and not the Company, shall be required to pay any stamp or
other tax or other governmental charge that may be imposed in connection with
any transfer involved in the issuance of the Common Stock; and in the event that
any such transfer is involved, the Company shall not be required to issue any
Common Stock and such Holder's purchase of the Common Stock issued upon the
exercise of such Holder's Warrant shall not be deemed to have been consummated
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.
Section 3.3 Redemption of Warrants.
(a) Subject to satisfaction of the Redemption Conditions, the Company shall
redeem the Warrants on the Redemption Date for cash in an amount equal to $50.00
minus the Accreted Value of the Preferred Securities as of the end of the
Business Day preceding the Remarketing Date in accordance with Section 3.4.
(b) A Holder may elect to exercise a Warrant in lieu of Redemption, if (i)
such Warrant is held pursuant to the Unit Agreement, and such Holder has opted
out of participating in the Remarketing, by written notice given to the Warrant
Agent and the Unit Agent as provided in the Unit Agreement; or (ii) such Warrant
is not held pursuant to the Unit Agreement, by written notice given to the
Warrant Agent, in each case prior to 5:00 p.m., New York time, on the Business
Day prior to the related Redemption Date. In the absence of an election to
exercise a Warrant in lieu of a Redemption, a Holder will be deemed to have
elected to have its Warrants redeemed on the Redemption Date.
(c) If a Holder elects to exercise a Warrant pursuant to Section 3.3(b)
above, then such Holder shall tender the Exercise Price for such Warrant as a
Cash Payment, and shall follow the procedures set forth in Section 3.2;
provided, however, that if (i) such Warrant is, on the Remarketing Date, held
pursuant to the Unit Agreement, (ii) such Holder has not opted out of
participating in the Remarketing, and (iii) a Successful Remarketing shall have
occurred, then the Exercise Price of such Warrant shall be deemed to have been
paid by a Remarketing Payment, and the Remarketing Agent will, in connection
with such Remarketing Payment, apply the proceeds of the Remarketing of the
related Preferred Security in accordance with the terms of the Remarketing
Agreement and the Unit Agreement.
(d) Any Warrant redeemed or exercised pursuant to the provisions of this
Section shall, upon such redemption or exercise, cease to be outstanding.
(e) If a Redemption cannot occur because of an inability to satisfy the
Redemption Conditions, the Company shall promptly notify in writing the Warrant
Agent and each Holder at its address specified in the Warrant Register thereof.
Such event shall not constitute a default under this Agreement so long as the
Company is exercising its best efforts to satisfy the Redemption Conditions and
is not otherwise in violation of this Agreement including the provisions of
Article VII hereof and the Company may, under such circumstances, subsequently
seek to remarket the Preferred Securities and contemporaneously redeem the
Warrants.
Section 3.4 Redemption Procedures.
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(a) The Company shall, contemporaneously with the giving of notice of
Remarketing pursuant to Section 6.6 of the Declaration, furnish written notice
of Redemption to the Warrant Agent, which shall promptly furnish notice of such
Redemption to Holders of Definitive Warrants, and the Company shall request, not
less than three nor more than 18 business days prior to the Remarketing Date,
that DTC notify its Participants holding Warrants of the Remarketing. The
Company shall cause notice of such redemption to be published in a newspaper of
general circulation in New York City, five Business Days prior to the Redemption
Date.
(b) If the Company gives a notice of Redemption of the Warrants, then by
12:00 noon, New York time, on the Redemption Date, the Company shall deposit
irrevocably with DTC consideration sufficient to pay the applicable Warrant
Value for all Book-Entry Warrants other than Warrants held by persons electing
to exercise their Warrants in lieu of a Redemption. If any Warrants are not
represented by one or more Global Certificates, the Company shall irrevocably
deposit with the Warrant Agent consideration sufficient to pay the applicable
Warrant Value, and shall give the Warrant Agent irrevocable written instructions
and authority to pay the applicable Warrant Value to the related Holders upon
surrender of the related Warrant Certificates.
(c) If notice of Redemption shall have been given and consideration
deposited or paid as required hereby, then, immediately prior to 5:00 p.m., New
York time, on the Redemption Date, all rights of Holders shall cease, except the
right of Holders to receive the applicable Warrant Value or Common Stock if the
related Holder elected to exercise such Holder's Warrant on or prior to 5:00
p.m., New York time, on the Redemption Date, and the Warrants shall cease to be
outstanding.
(d) Notwithstanding anything herein to the contrary, and subject to
applicable law, the Company and its subsidiaries may at any time, and from time
to time, purchase outstanding Warrants by tender, in the open market or by
private agreement.
ARTICLE IV
ANTI-DILUTION PROVISIONS
Section 4.1 Warrant Adjustments. The Exercise Amount shall be subject to
adjustments, calculated by the Company (written notice of which promptly shall
be provided to the Warrant Agent as provided in Section 4.04, until receipt of
which the Warrant Agent shall be fully protected in assuming that no adjustment
has been made), from time to time as follows:
(a) Dividends and Distribtions. In case the Company shall hereafter pay a
dividend or make a distribution to all holders of the outstanding Common Stock
in shares of Common Stock, the Exercise Amount in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
increased by multiplying such Exercise Amount by a fraction,
(i) the numerator of which shall be the sum of the number of shares of
Common Stock outstanding at the close of business on the Record Date
fixed for such determination and the total number of shares
constituting such dividend or other distribution, and
(ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date fixed for such
determination.
14
Such increase shall become effective immediately after the opening of business
on the day following the Record Date. If any dividend or distribution of the
type described in this paragraph (a) is declared but not so paid or made, the
Exercise Amount shall again be adjusted to the Exercise Amount which would then
be in effect if such dividend or distribution had not been declared.
(b) Stock Splits. In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Exercise Amount
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Exercise Amount in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately decreased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) Issuance of Rights or Warrants. In case the Company shall issue rights
or warrants (other than any rights or warrants referred to in paragraph (d)
below) to all holders of its outstanding shares of Common Stock entitling them
to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share (or having a conversion price per share)
less than the Market Price on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Exercise Amount
shall be adjusted so that the same shall equal the amount determined by
multiplying the Exercise Amount in effect at the opening of business on the date
after such Record Date by a fraction:
(i) the numerator of which shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the total
number of additional shares of Common Stock so offered for
subscription or purchase (or into which the convertible securities so
offered are convertible), and
(ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date plus the
number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase (or the
aggregate conversion price of the convertible securities so offered)
would purchase at such Market Price.
Such adjustment shall become effective immediately after the opening of business
on the day following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock (or securities convertible into Common Stock) are not delivered pursuant
to such rights or warrants, upon the expiration or termination of such rights or
warrants the Exercise Amount shall be readjusted to the Exercise Amount which
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of
shares of Common Stock (or securities convertible into Common Stock) actually
delivered. In the event that such rights or warrants are not so issued, the
Exercise Amount shall again be adjusted to be the Exercise Amount which would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received for such rights or warrants, the value
of such consideration if other than cash, to be determined by the Board of
Directors.
15
(d) Other Dividends and Distributions. In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock shares of
any class of capital stock of the Company other than any dividends or
distributions to which paragraph (a) above applies or evidences of its
indebtedness, cash or other assets, including securities, but excluding (i) any
rights or warrants referred to in paragraph (c) above, (ii) any stock,
securities or other property or assets (including cash) distributed in
connection with a reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance to which Section 4.2 hereof
applies and (iii) dividends and distributions paid exclusively in cash, then, in
each such case, subject to the second succeeding paragraph of this paragraph
(d), the Exercise Amount shall be increased so that the same shall be equal to
the amount determined by multiplying the Exercise Amount in effect immediately
prior to the close of business on the Record Date with respect to such
distribution by a fraction:
(i) the numerator of which shall be the Market Price on such date plus the
Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution)
on such date of the portion of the securities so distributed
applicable to one share of Common Stock determined on the basis of the
number of shares of the Common Stock outstanding on the Record Date,
and
(ii) the denominator of which shall be such Market Price. Such increase
shall become effective immediately prior to the opening of business on
the day following the Record Date. However, in the event that the then
Fair Market Value as so determined of the portion of the securities so
distributed applicable to one share of Common Stock is equal to or
greater than the Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon exercise of a Warrant the
amount of securities such Holder would have received had such Holder
exercised such Warrant immediately prior to such Record Date. In the
event that such dividend or distribution is not so paid or made, the
Exercise Amount shall again be adjusted to be the Exercise Amount
which would then be in effect if such dividend or distribution had not
been declared.
If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this paragraph (d) by reference to the actual or
when issued trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such market over the
same period (the "Reference Period") used in computing the Market Price pursuant
to paragraph (g) below to the extent possible, unless the Board of Directors in
a Board Resolution determines in good faith that determining the Fair Market
Value during the Reference Period would not be in the best interest of the
Holders.
In the event any such distribution consists of shares of capital stock of,
or similar equity interests in, one or more of the Company's subsidiaries (a
"Spin-Off"), the Fair Market Value of the securities to be distributed shall
equal the average of Trading Prices of those securities for the five consecutive
Trading Days commencing on and including the sixth day of trading of those
securities after the effectiveness of the Spin-Off, and the then current Market
Price shall be measured for the same period. In the event, however, that an
underwritten initial public offering of the securities in the Spin-Off occurs
simultaneously with the Spin-Off, Fair Market Value of the securities
distributed in the Spin-Off shall mean the initial public offering price of such
securities and the then current Market Price shall mean the Trading Price for
the Common Stock on the same Trading Day.
16
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"):
(1) are deemed to be transferred with such shares of Common Stock;
(2) are not exercisable; and
(3) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this paragraph
(d) (and no adjustment to the Exercise Amount under this paragraph (d) will
be required) until the occurrence of the earliest Trigger Event. If such
right or warrant is subject to subsequent events, upon the occurrence of
which such right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle the holder
to purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different purchase price, then the occurrence of
each such event shall be deemed to be the date of issuance and record date
with respect to a new right or warrant (and a termination or expiration of
the existing right or warrant without exercise by the holder thereof). In
addition, in the event of any distribution (or deemed distribution) of
rights or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto, that resulted in
an adjustment to the Exercise Amount under this paragraph (d):
(x) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Exercise Amount shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price
received by a holder of Common Stock with respect to such rights or
warrant assuming such holder had retained such rights or warrants,
made to all holders of Common Stock as of the date of such redemption
or repurchase, and
(y) in the case of such rights or warrants all of which shall
have expired or been terminated without exercise, the Exercise Amount
shall be readjusted as if such rights and warrants had never been
issued.
For purposes of this paragraph (d) and paragraphs (a), (b) and (c), any
dividend or distribution to which this paragraph (d) is applicable that also
includes shares of Common Stock, a subdivision or combination of Common Stock to
which paragraph (c) applies, or rights or warrants to subscribe for or purchase
shares of Common Stock to which paragraph (c) applies (or any combination
thereof), shall be deemed instead to be:
(I) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than such shares
of Common Stock, such subdivision or combination or such rights or warrants
to which paragraphs (a), (b) and (c) above apply, respectively and any
Exercise Amount increase required by this paragraph (d) with respect to
such dividend or distribution shall then be made, immediately followed by,
(II) a dividend or distribution of such shares of Common Stock, such
subdivision or combination or such rights or warrants and any further
Exercise Amount increase required
17
by paragraphs (a), (b) and (c) with respect to such dividend or
distribution shall then be made, except:
(A) the Record Date of such dividend or distribution shall be
substituted as (x) "the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution,"
"Record Date fixed for such determinations" and "Record Date" within
the meaning of paragraph (a) above, (y) "the day upon which such
subdivision becomes effective" and "the day upon which such
combination becomes effective" within the meaning of paragraph (b)
above, and (z) as "the date fixed for the determination of
stockholders entitled to receive such rights or warrants," "the Record
Date fixed for the determination of the stockholders entitled to
receive such rights or warrants" and such "Record Date" within the
meaning of paragraph (c) above, and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business
on the date fixed for such determination" within the meaning of
paragraph (a) above and any reduction or increase in the number of
shares of Common Stock resulting from such subdivision or combination
shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash (excluding any cash that is distributed upon a
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance to which Section 4.2 hereof applies or as part
of a distribution referred to in paragraph (d) hereof), in an aggregate amount
that, combined together with:
(i) the aggregate amount of any other such distributions to all
holders of Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of which
no adjustment pursuant to this paragraph (e) has been made, and
(ii) the aggregate of any cash plus the Fair Market Value (as
determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution) consideration payable in
respect of any tender offer by the Company or any of its subsidiaries for
all or any portion of the Common Stock concluded within the 12 months
preceding the date of such distribution, and in respect of which no
adjustment pursuant to paragraph (f) below has been made,
exceeds 10% of the product of the Market Price (determined as provided in
paragraph (g) below) on the Record Date with respect to such distribution times
the number of shares of Common Stock outstanding on such date, then and in each
such case, immediately after the close of business on such date, the Exercise
Amount shall be increased so that the same shall equal the amount determined by
multiplying the Exercise Amount in effect immediately prior to the close of
business on such Record Date by a fraction:
(i) the numerator of which shall be equal to the Market Price on such
Record Date, and
(ii) the denominator of which shall be equal to the Market Price on
such Record Date less an amount equal to the quotient of (x) the excess of
such combined
18
amount over such 10% and (y) the number of shares of Common Stock
outstanding on such Record Date.
However, in the event that the then Fair Market Value (as so determined) of the
portion of the securities so distributed applicable to one share of Common Stock
is equal to or greater than the Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder shall
have the right to receive upon exercise of a Warrant the amount of cash such
Holder would have received had such Holder exercised such Warrant immediately
prior to such Record Date. In the event that such dividend or distribution is
not so paid or made, the Exercise Amount shall again be adjusted to be the
Exercise Amount which would then be in effect if such dividend or distribution
had not been declared.
(f) Tender Offers. In case a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock shall expire and such
tender offer (as amended upon the expiration thereof) shall require the payment
to stockholders (based on the acceptance (up to any maximum specified in the
terms of the tender offer) of Purchased Shares) of an aggregate consideration
having a Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution) that
combined together with:
(i) the aggregate of the cash plus the Fair Market Value (as
determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution), as of the expiration of
such tender offer, of consideration payable in respect of any other tender
offers, by the Company or any of its subsidiaries for all or any portion of
the Common Stock expiring within the 12 months preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to this
paragraph (f) has been made, and
(ii) the aggregate amount of any distributions to all holders of
Common Stock made exclusively in cash within 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to paragraph (e) has been made,
exceeds 10% of the product of the Market Price determined as provided in
paragraph (g) below) as of the last time (the "Tender Expiration Time") tenders
could have been made pursuant to such tender offer (as it may be amended) times
the number of shares of Common Stock outstanding (including any tendered shares)
on the Tender Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Tender Expiration Time,
the Exercise Amount shall be adjusted so that the same shall equal the amount
determined by multiplying the Exercise Amount in effect immediately prior to
close of business on the date of the Tender Expiration Time by a fraction:
(A) the numerator of which shall be the sum of (x) the Fair Market
Value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Tender Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Tender Expiration Time and the Market Price of the
Common Stock on the Trading Day next succeeding the Tender Expiration Time,
and
(B) the denominator shall be the number of shares of Common Stock
outstanding (including any tendered shares) at the Tender Expiration Time
multiplied by the Market Price of the Common Stock on the Trading Day next
succeeding the Tender Expiration Time.
19
Such increase (if any) shall become effective immediately prior to the opening
of business on the day following the Tender Expiration Time. In the event that
the Company is obligated to purchase shares pursuant to any such tender offer,
but the Company is permanently prevented by applicable law from effecting any
such purchases or all such purchases are rescinded, the Exercise Amount shall
again be adjusted to be the Exercise Amount which would then be in effect if
such tender offer had not been made. If the application of this paragraph (f) to
any tender offer would result in a decrease in the Exercise Amount, no
adjustment shall be made for such tender offer under this paragraph (f).
(g) Notwithstanding the foregoing, whenever successive adjustments to the
Exercise Amount are called for pursuant to this Section 4.1, such adjustments
shall be made to the Market Price as may be necessary or appropriate to
effectuate the intent of this Section 4.1 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(h) The Company may make such reductions in the Exercise Price as the Board
of Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to
time may reduce the Exercise Price by any amount for any period of time if the
period is at least 20 days and the reduction is irrevocable during the period
and the Board of Directors determines in good faith that such reduction would be
in the best interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. Whenever the Exercise Price is reduced
pursuant to the preceding sentence, the Company shall give to the Warrant Agent
and each Holder at the address of such Holder as it appears in the Warrant
Register a written notice of the reduction at least 15 days prior to the date
the reduced Exercise Price takes effect, and such notice shall state the reduced
Exercise Price and the period during which it will be in effect.
(i) Notwithstanding anything to the contrary in this Section 4.1, no
adjustment in the Exercise Amount shall be required unless such adjustment would
require an increase or decrease of at least 1% in such amount; provided,
however, that any adjustments which by reason of this paragraph (i) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article IV shall be made by
the Company and shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be. No adjustment need be made for a
change in the par value or no par value of the Common Stock.
(j) In any case in which this Section provides that an adjustment shall
become effective immediately after a Record Date for an event, the Company may
defer until the occurrence of such event (i) issuing to any Holder of a Warrant
exercised after such Record Date and before the occurrence of such event the
additional shares of Common Stock issuable upon such exercise by reason of the
adjustment required by such event over and above the Common Stock issuable upon
such exercise before giving effect to such adjustment and (ii) paying to such
Holder any amount in cash in lieu of any fraction pursuant to Section 3.2(b)
hereof.
(k) For purposes of this Section, the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company shall not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
20
(l) If the distribution date for the rights provided in the Company's
rights agreement, if any, occurs prior to the date a Warrant is exercised, the
Holder who exercises such Warrant after the distribution date is not entitled to
receive the rights that would otherwise be attached (but for the date of
exercise) to the shares of Common Stock received upon such exercise; provided,
however, that an adjustment shall be made to the Exercise Amount pursuant to
paragraph (b) above as if the rights were being distributed to the common
stockholders of the Company immediately prior to such exercise. If such an
adjustment is made and the rights are later redeemed, invalidated or terminated,
then a corresponding reversing adjustment shall be made to the Exercise Amount,
on an equitable basis, to take account of such event.
Section 4.2 Merger, Consolidation, Sale, Transfer or Conveyance; Change of
Control.
(a) If any of following events occur, namely:
(i) any reclassification or change of the outstanding shares of Common
Stock (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination),
(ii) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange
for such Common Stock, or
(iii) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Warrant Agent an amendment to this Warrant Agreement
providing that the Warrants shall, upon exercise, entitle the Holder thereof to
the kind and amount of shares of stock and other securities or property or
assets (including cash) which such Holder would have been entitled to receive
upon such reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance had such Warrants been exercised
immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance, assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance; provided that if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of
this Section, the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares. Such
amendment shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article IV. If, in
the case of any such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, the stock or other securities
and assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or
21
conveyance, then such amendment shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the
Holders as the Board of Directors shall reasonably consider necessary by reason
of the foregoing.
The Company shall cause notice of the execution of such amendment to be
mailed to each Holder, at the address of such Holder as it appears on the
Warrant Register, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such amendment.
The above provisions of this Section shall similarly apply to successive
reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.
If this Section applies to any event or occurrence, Section 4.1 hereof
shall not apply.
(b) Notwithstanding paragraph (a) above, if a Change of Control occurs,
each Holder shall have the right (a "Change of Control Redemption Right") to
require the Company to redeem such Holder's Warrants (a "Change of Control
Redemption") on the date that is 45 days after the Change of Control Notice Date
(the "Change of Control Redemption Date"), at a redemption price in cash equal
to the Warrant Value on such Change of Control Redemption Date.
Within 30 days after the date of occurrence of a Change of Control (the
"Change of Control Notice Date"), the Company shall give written notice to each
Holder and the Warrant Agent of the transaction that gave rise to such Change of
Control and of the resulting Change of Control Redemption Right and of the
Change of Control Notice Date and the Change of Control Redemption Date.
To exercise such Change of Control Redemption Right, a Holder shall
deliver, on or prior to the 30th day after the Change of Control Notice Date,
irrevocable written notice to the Warrant Agent of such Holder's election to
exercise such Change of Control Redemption Right and the number of Warrants to
be so redeemed. On the Change of Control Redemption Date, the Company shall
redeem the related Warrants at the [Warrant Value] on such date in accordance
with the procedures for Redemption set forth in Section 3.4(a).
In connection with a Change of Control Redemption, not less than three
Business Days prior to the Change of Control Redemption Date:
(i) if the Warrants to be redeemed are represented by a Global
Certificate, the Warrant Agent shall make the necessary adjustment to the
"Schedule of Increases or Decreases in Global Certificate" attached to the
Global Certificate to reduce the amount of Warrants represented thereby;
and
(ii) if the Warrants to be redeemed are Definitive Warrants, the
Holder of such Definitive Warrants shall present the related Warrant
Certificate to the Warrant Agent for cancellation in accordance with
Section 5.3.
The Company shall comply with the requirements of the Exchange Act and any
other applicable securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with any redemption of the
Warrants by the Company pursuant to this paragraph (b).
22
Section 4.3 Other Events. If any event occurs as to which the
foregoing provisions of this Article IV are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board of
Directors, fairly and adequately protect the rights of the Holders of the
Warrants in accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make such adjustments in the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in their good faith opinion, to
protect such purchase rights as aforesaid, but in no event shall any such
adjustment have the effect of decreasing the Exercise Amount of any Warrant.
Section 4.4 Notice of Adjustment. Whenever the Exercise Amount is
adjusted as herein provided (other than in the case of an adjustment pursuant to
the second paragraph of Section 4.1(h) for which the notice required by such
paragraph has been provided), the Company shall promptly deliver to the Warrant
Agent an Officers' Certificate setting forth the adjusted Exercise Amount and
showing in reasonable detail the facts upon which such adjustment is based.
Promptly after delivery of such Officers' Certificate, the Company shall prepare
a notice stating that the Exercise Amount has been adjusted and setting forth
the adjusted Exercise Amount and the date on which each adjustment becomes
effective, and shall mail such notice to each Holder at the address of such
Holder as it appears in the Warrant Register within 20 days of the effective
date of such adjustment. Failure to deliver such notice shall not effect the
legality or validity of any such adjustment.
Section 4.5 Notice of Certain Transactions. In case at any time after
the date hereof:
(a) the Company shall declare a dividend or any other distribution on
its Common Stock payable otherwise than in cash out of its capital surplus or
its consolidated retained earnings;
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares of
capital stock of any class (or of securities convertible into shares of capital
stock of any class) or of any other rights;
(c) there shall occur any reclassification of the Common Stock of the
Company other than a subdivision or combination of its outstanding Common Stock,
a change in par value, a change from par value to no par value or a change from
no par value to par value, or any merger, consolidation, statutory share
exchange or combination to which the Company is a party and for which approval
of any shareholders of the Company is required, or the sale, transfer or
conveyance of all or substantially all of the assets of the Company; or
(d) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be delivered to the corporate trust office of
the Warrant Agent, and shall cause to be provided to the Warrant Agent and all
Holders in accordance with Section 8.2 hereof, at least 20 days or 10 days in
any case specified in paragraph (a) or (b) above prior to the applicable record
or effective date hereinafter specified, a written notice stating:
(i) the date on which a record is to be taken for the purpose
of such dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or
23
(ii) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, merger, consolidation, statutory share
exchange, sale, transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (a) through (d) of this Section.
Section 4.6 Adjustment to Warrant Certificate. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article IV, and Warrant Certificates issued after such adjustment may state the
same Exercise Amount as is stated in the Warrant Certificates initially issued
pursuant to this Warrant Agreement. The Company, however, may at any time in its
sole discretion make any change in the form of Warrant Certificate that it may
deem appropriate to give effect to such adjustments and that does not affect the
substance of the Warrant Certificate, and any Warrant Certificate thereafter
issued or countersigned, whether in exchange or substitution for an outstanding
Warrant Certificate or otherwise, may be in the form as so changed.
ARTICLE V
EXCHANGE AND TRANSFER OF WARRANTS
Section 5.1 Warrant Register; Exchange and Transfer of Warrants.
(a) The Warrant Agent shall maintain, at its corporate trust office, a
register (the "Warrant Register") in which, upon the issuance of the Warrants,
and subject to such reasonable regulations as the Warrant Agent may prescribe,
it shall register Warrant Certificates and exchanges and transfers thereof
(including in connection with any change by a Holder from holding a Warrant
pursuant to the Unit Agreement to not holding such Warrant pursuant to the Unit
Agreement). The Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
(b) The Warrant Certificates shall be issued in registered form only
and shall be transferable only upon surrender thereof for registration of
transfer. When a Warrant Certificate is presented to the Warrant Agent with a
request to register a transfer thereof, the Warrant Agent shall register such
transfer as requested.
(c) Except as provided in the following sentence, upon surrender at
the corporate trust office of the Warrant Agent, Warrant Certificates may be
exchanged for one or more other Warrant Certificates evidencing the same
aggregate number of Warrants of the same tenor, or may be transferred in whole
or in part. A Warrant Certificate evidencing Warrants that are then held
pursuant to the Unit Agreement may be exchanged or transferred prior to the date
such Warrant is not held pursuant to the Unit Agreement only pursuant to and in
accordance with the Unit Agreement. A transfer shall be registered upon
surrender of a Warrant Certificate to the Warrant Agent at its corporate trust
office for transfer, properly endorsed or accompanied by appropriate instruments
of transfer and written instructions for transfer, all in form satisfactory to
the Company and the Warrant Agent, duly signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a bank or trust
company, (b) a broker or dealer that is a member of the National Association of
Securities
24
Dealers, Inc. (the "NASD") or (c) a member of a national securities exchange.
Upon any such registration of transfer, a new Warrant Certificate shall be
issued to the transferee. Whenever a Warrant Certificate is surrendered for
exchange or transfer, the Company shall execute, and upon request of the Company
and compliance with the requirements in Section 1.2 of the Unit Agreement, the
Warrant Agent shall authenticate and deliver to the person or persons entitled
thereto, one or more Warrant Certificates, as so requested. The Warrant Agent
shall not be required to effect any exchange or transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant. All
Warrant Certificates issued upon any exchange or transfer of a Warrant
Certificate shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Warrant Agreement, as
the Warrant Certificate surrendered for such exchange or transfer. No service
charge shall be made for any exchange or transfer of Warrants, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such exchange or transfer, in
accordance with Section 3.2(f) hereof.
(d) As noted in Section 2.2, the Global Warrant shall represent such
of the outstanding Warrants as shall be specified in the "Schedule of Increases
or Decreases in Global Certificate" attached thereto or otherwise in accordance
with the Applicable Procedures, initially equal to zero Warrants. At any time
after issuance, the Preferred Security and Warrant components of any Unit may be
transferred separately. In the event of any separation of the components of a
Unit, the Unit Agreement provides (i) if such Unit is represented by a
definitive certificate, the holder shall present such definitive certificate to
the Unit Agent for cancellation and the Unit Agent shall deliver the Warrant
component of such Unit to the Warrant Agent with an instruction for it to
authenticate and deliver to, or upon the instruction of, such holder a Warrant
not held pursuant to the Unit Agreement, bearing the separate "CUSIP" number
assigned to the Warrant (and not the Unit) and (ii) if such Unit is represented
by the Global Unit Certificate, the Unit Agent will make the necessary
adjustment to the "Schedule of Increases or Decreases in Global Certificate"
attached to the Global Unit Certificate or otherwise comply with the Applicable
Procedures to reduce the amount of Units represented thereby and will instruct
the Warrant Agent to effect a corresponding increase in the Warrants represented
by the Global Warrant and bearing a separate "CUSIP" number. The Warrant Agent
shall make such other necessary adjustments to the Global Certificate consistent
with the terms of this agreement to reflect the appropriate number of Warrants
represented thereby.
Once not held pursuant to the Unit Agreement, the Preferred Security
and Warrant components of a Unit may at a later time be held pursuant to the
Unit Agreement. In the event a holder of a Preferred Security and a Holder of a
Warrant desire to cause such Preferred Security and Warrant to once again be
held pursuant to the Unit Agreement, (i) if the constituent components are
represented by definitive certificates, the holder shall present along with a
written notice thereof (x) the Preferred Security to the Property Trustee and
(y) the Warrant to the Warrant Agent, in each case for cancellation and the
Property Trustee and the Warrant Agent shall so notify the Unit Agent, who shall
in turn so notify the Unit registrar with an instruction for the Unit registrar
to countersign and deliver to, or upon the instruction of, such holder a Unit
bearing the separate "CUSIP" number assigned to the Units and (ii) if the
constituent components are represented by global certificates, each of the
Property Trustee and the Warrant Agent shall make the necessary adjustment to
their respective global certificates or otherwise comply with the Applicable
Procedures to reduce the amount of Preferred Securities and Warrants,
respectively, represented thereby and shall instruct the Unit Agent to effect a
corresponding increase in the Units represented by the Global Unit Certificate
bearing a separate "CUSIP" number. The Warrant Agent shall make such other
necessary adjustments to the Global Certificate consistent with the terms of
this Agreement to reflect the appropriate number.
Section 5.2 Treatment of Holders of Warrant Certificates. At all such
times as any Warrant is held pursuant to the Unit Agreement, the Company, the
Warrant Agent and all other
25
Persons may treat the Holder of the related Unit as the Holder of the Warrant
Certificate evidencing such Warrant for any purpose and as the Person entitled
to exercise the rights relating to such Warrant and Warrant Certificate, any
notice to the contrary notwithstanding. After the date that a Warrant is no
longer held pursuant to the Unit Agreement and prior to due presentment of the
related Warrant Certificate for registration of transfer, the Company and the
Warrant Agent may treat the registered Holder of such Warrant Certificate as the
absolute Holder thereof for any purpose and as the Person entitled to exercise
the rights relating to such Warrant and Warrant Certificate, any notice to the
contrary notwithstanding.
Section 5.3 Cancellation of Warrant Certificates. In the event that
the Company shall purchase, redeem or otherwise acquire any Warrants after the
issuance thereof pursuant to the terms of this Warrant Agreement, the Warrant
Certificate or Warrant Certificates evidencing such Warrants shall thereupon be
delivered to the Warrant Agent and upon written direction of the Company shall
be canceled by it. The Warrant Agent shall also cancel any Warrant Certificate
delivered to it for exercise, in whole or in part, or for exchange or transfer.
Warrant Certificates so canceled shall be delivered by the Warrant Agent to the
Company from time to time, or disposed of in accordance with the instructions of
the Company; provided, however, that the Warrant Agent shall not be required to
destroy the Warrant Certificates.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent. The Company hereby appoints Wilmington
Trust Company as Warrant Agent, upon the terms and subject to the conditions set
forth herein, and Wilmington Trust Company 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
acceptable to it 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 6.2 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations set forth herein 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 shall be subject:
(a) Compensation and Indemnification. The Company agrees to promptly
pay the Warrant Agent in its individual capacity the compensation set forth in
Exhibit B hereto (or as otherwise agreed to in writing from time to time by the
Company and the Warrant Agent), and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees and expenses) 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 in its
individual capacity for, and to defend and hold it harmless against, any loss,
claim, liability or expense (including the reasonable costs and expenses of
defending against any claim of liability) incurred without negligence or bad
faith on the part of the Warrant Agent arising out of or in connection with this
Warrant Agreement, the Warrant, or its appointment, status or service as Warrant
Agent hereunder.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with any Warrant Certificate, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any Holder.
26
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be fully protected and shall
incur no personal liability for or in respect of any action taken, suffered or
omitted by it in reliance upon any 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 an appropriate Person.
(e) Officer's Certificate. Whenever in the performance of its duties
hereunder the Warrant Agent shall reasonably deem it necessary that any fact or
matter be proved or established by the Company prior to taking, suffering or
omitting any action hereunder, the Warrant Agent may (unless other evidence in
respect thereof be herein specifically prescribed), in the absence of bad faith
on its part, require and conclusively rely upon a certificate signed by the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
the President, an Executive Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company delivered by
the Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss resulting from such
neglect or misconduct; provided, however, that reasonable care shall have been
exercised in the selection and continued employment of such attorneys and
agents.
(g) Certain Transactions. The Warrant Agent, and any officer, director
or employee thereof, may become the owner of, or acquire any interest in, any
Warrant, with the same rights that he, she or it would have if it were not the
Warrant Agent, and, to the extent permitted by applicable law, he, she or it may
engage or be interested in any financial or other transaction with the Company
and may serve on, or as depository, trustee or agent for, any committee or body
of holders of Common Stock or other obligations of the Company as if it were not
the Warrant Agent.
(h) No Liability For Interest. The Warrant Agent shall not be
personally liable for interest on any monies at any time received by it pursuant
to any of the provisions of this Warrant Agreement or of the Warrant
Certificates, except as otherwise agreed with the Company.
(i) No Liability For Invalidity. The Warrant Agent shall incur no
personal liability with respect to the validity of this Warrant Agreement except
as to the due execution hereof by the Warrant Agent or the authentication by the
Warrant Agent of any Warrant Certificate.
(j) No Responsibility For Company Representations. The Warrant Agent
shall not be personally responsible for any of the recitals or representations
contained herein (except as to representations expressly made by the Warrant
Agent) or in any Warrant Certificate (except as to the Warrant Agent's
authentication on such Warrant Certificate), all of which recitals and
representations are made solely by the Company.
(k) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically required under this Warrant
Agreement to be performed by the Warrant Agent, and no other duties or
obligations shall be implied. The Warrant Agent shall not be under any
obligation to take any action hereunder that may subject it to any expense or
liability, the payment of
27
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 Warrant Certificate authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Warrant
Agreement or for the application by the Company of the proceeds of the issuance
or exercise of Warrants. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in any Warrant Certificate or in case of the
receipt of any written demand from a Holder 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 7.2 hereof, to make any demand upon
the Company.
(l) No Liability for Calculations by Calculation Agent. The Warrant
Agent shall be entitled to conclusively rely upon any determination by the
Calculation Agent under the Calculation Agency Agreement, dated as of _________,
2002, between the Company and Wilmington Trust Company, as calculation agent
(the "Calculation Agent"), of the Accreted Value or Discount relating to the
Preferred Securities and shall not incur any personal liability to the Company
or any Holder relating to inaccuracies in calculating such Accreted Value or
Discount.
Section 6.3 Resignation and Removal; Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders of the
Warrants, that there shall at all times be a Warrant Agent hereunder until all
Warrants have expired.
(b) The Warrant Agent may at any time resign as such by giving written
notice to the Company, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than 30 days
after the date on which such notice is given unless the Company agrees to accept
a shorter notice. 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.
Notwithstanding the provisions of this paragraph (b), 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 banking institution
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Warrant Agent a combined capital and surplus (as set forth in its
most recent published report of financial condition) of at least $50,000,000)
and the acceptance of such appointment by such successor Warrant Agent. In the
event a successor Warrant Agent has not been appointed and has not accepted its
duties within 30 days of the Warrant Agent's notice of resignation or receipt of
notice of removal, the Warrant Agent at the expense of the Company may apply to
any court of competent jurisdiction for the designation of a successor Warrant
Agent. The obligations of the Company under Section 6.2(a) shall continue to the
extent set forth therein notwithstanding termination of this Agreement or 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 file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended or under any other applicable federal or state bankruptcy law or similar
law, or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
for relief against it under the provisions of Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law, or if any
28
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be Warrant Agent hereunder.
(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 disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any Person into which the Warrant Agent hereunder may be merged or
converted or consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Warrant Agent shall be a party, or any Person to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Warrant Agent, provided, however, that
such Person shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Warrant Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
Section 6.4 Compliance With Applicable Laws. The Warrant Agent agrees
to comply with all laws applicable to it in respect of the services rendered by
it under this Warrant Agreement and in connection with the Warrants, including
but not limited to the provisions of United States federal income tax laws
regarding information reporting and backup withholding. The Warrant Agent
expressly assumes all liability for its failure to comply with any such laws
imposing obligations on it, including but not limited to any liability for
failure to comply with any applicable provisions of United States federal income
tax laws regarding information reporting and backup withholding.
Section 6.5 Office. The Company will maintain an office or agency
where Warrant Certificates may be presented for exchange, transfer or exercise.
The office initially designated for this purpose shall be the corporate trust
office of the Warrant Agent at its address set forth in Section 8.2.
ARTICLE VII
COVENANTS
Section 7.1 Financial Statements and Reports of the Company. The
Company agrees (a) to provide to each Holder, without cost to such Holder,
copies of the annual and quarterly reports and documents that the Company files
with the Commission (to the extent such filings are accepted by the Commission
and whether or not the Company has a class of securities registered under the
Exchange Act) or that the Company would be required to file were it subject to
Section 13 or 15 of the Exchange Act, within 15 days after the date of such
filing or the date on which the Company would be required to file such reports
or documents, and all such annual or quarterly reports shall include the
geographic segment financial information as has heretofore been disclosed by the
Company in its public filings with the Commission, and (b) if filing such
reports and documents is not
29
accepted by the Commission or is prohibited under the Exchange Act, to
supply at the Company's expense copies of such reports and documents to any
prospective Holder promptly upon request.
Delivery of any such reports, information and documents to the Warrant
Agent shall be for informational purposes only and the Warrant Agent's receipt
of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Warrant Agent is entitled to rely exclusively on Officers' Certificates).
Section 7.2 Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Holder pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.
Section 7.3 Governmental Approvals. The Company shall from time to
time use all reasonable efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and the
trading market, if any, on which the Warrants may be listed or authorized for
trading from time to time and will make all filings under the federal and state
securities laws (including without limitation the Securities Act), as may be or
become requisite in connection with the issuance, sale, trading, transfer or
delivery of the Warrants and Warrant Certificates, the exercise of the Warrants
and the issuance, sale and delivery of the Common Stock issued upon the exercise
of the Warrants.
Section 7.4 Satisfaction of Exercise Conditions. Subject to Section 3.3(e), the
Company shall at all times exercise its best efforts to satisfy or cause to be
satisfied the Exercise Conditions. In connection therewith, the Company shall
exercise its best efforts to (a) prior to the exercise of any Warrant (whether
in connection with a Redemption or otherwise), furnish the Warrant Agent with
sufficient copies of a then-current prospectus relating to the Common Stock
deliverable upon exercise of any outstanding Warrants (and the Warrant Agent,
upon receipt thereof, if any, shall deliver, at the expense of the Company, the
same to exercising Holders), (b) cause the related registration statement to be
effective until the expiration of all Warrants, and (c) otherwise cause to be
satisfied the Exercise Conditions.
Section 7.5 Reservation of Shares. The Company shall at all times keep
reserved out of its authorized shares of Common Stock a number of shares of
Common Stock sufficient to provide for the exercise of all outstanding Warrants.
The registrar for the Common Stock shall at all times, until the Warrants have
expired, reserve such number of authorized shares as shall be required for such
purpose. All Common Stock issued upon exercise of Warrants shall, and the
Company covenants that it will, upon issuance, be fully paid, nonassessable,
free of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issue thereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Supplements and Amendments.
(a) The Company and Warrant Agent may from time to time supplement or
amend this Warrant Agreement without the approval or consent of any Holder in
order to cure any ambiguity, to correct or supplement any provision contained
herein that may be defective or inconsistent with any other provisions herein,
or to make any other provision in regard to matters or questions arising
30
hereunder that the Company and the Warrant Agent may deem necessary or desirable
and that shall not adversely affect the interests of the Holders. Every Holder
of Warrants, whether issued before or after any such supplement or amendment,
shall be bound thereby. Promptly after the effectiveness of any supplement or
amendment that affects the interest of the Holders, the Company shall give
notice thereof, as provided in Section 8.2 hereof, to the Holders affected
thereby, setting forth in general terms the substance of such supplement or
amendment.
(b) The Company and the Warrant Agent may modify or amend this Warrant
Agreement and the Warrant Certificates with the consent of the Holders of not
fewer than a majority in number of the then-outstanding unexercised Warrants,
for any purpose; provided, however, that no such modification or amendment that
(i) changes the Exercise Price of the Warrants other than in accordance with
Section 4.1(h), (ii) reduces the Exercise Amount other than in accordance with
Article IV, (iii) accelerates the Expiration Date of the Warrants, (iv)
materially and adversely affects the rights of any Holder, or (v) reduces the
percentage of outstanding unexercised Warrants the consent of the Holders of
which is required hereunder for modification or amendment of this Warrant
Agreement or the Warrants, may be made without the consent of each Holder.
Section 8.2 Addresses for Notices. Any communications from the Company
to the Warrant Agent with respect to this Warrant Agreement shall be addressed
to Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration; any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to New York Community Bancorp, Inc., 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Chief Executive Officer (with a
copy to the Secretary); or such other addresses as shall be specified in writing
by the Warrant Agent or by the Company, as the case may be.
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears on the Warrant Register and shall
be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 8.3 Governing Law. This Warrant Agreement and the Warrant
Certificates shall be governed by the laws of the State of New York.
Section 8.4 Persons Having Rights Under Warrant Agreement. Nothing in
this Warrant Agreement, express or implied, and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any Person or corporation other than the Company, the Warrant
Agent and the Holders any right, remedy or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Warrant Agreement contained shall be for the sole and
exclusive benefit of the Company and the Warrant Agent and their respective
successors and of the Holders.
Section 8.5 Headings. The descriptive headings of the several Articles
and Sections and the Table of Contents of this Warrant Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
31
Section 8.6 Counterparts. This Warrant Agreement may be executed by
the parties hereto in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
Section 8.7 Inspection of Agreement. A copy of this Warrant Agreement
shall be available at all reasonable times, upon written request and reasonable
advance notice to the Warrant Agent, at the principal corporate trust office of
the Warrant Agent, for inspection by the Holders of Warrants.
32
[NOTE: DO NOT EDIT THIS PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed as of the day and year first above written.
NEW YORK COMMUNITY BANCORP, INC.
By:
-----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, AS WARRANT AGENT
By:
-----------------------------------
Name:
Title:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF
AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE 1.4036
SHARES (SUBJECT TO ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF THE COMPANY AT
THE EXERCISE PRICE SET FORTH IN THE BELOW-REFERENCED WARRANT AGREEMENT AND A
PREFERRED SECURITY OF NEW YORK COMMUNITY CAPITAL TRUST V (THE "TRUST"). THE
WARRANTS AND THE PREFERRED SECURITIES MAY BE SEPARATED AND TRANSFERRED
SEPARATELY, AND RE-ATTACHED, IN ACCORDANCE WITH THE PROVISIONS OF THE UNIT
AGREEMENT.
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
WARRANT AGREEMENT REFERRED TO HEREIN.]
A-1
No. [ ]
Certificate for [ Warrants]
[Number of Warrants set forth on Schedule A hereto]
WARRANTS TO PURCHASE COMMON STOCK
OF NEW YORK COMMUNITY BANCORP, INC.
THIS CERTIFIES THAT , or its registered assigns, is the
-------
registered holder of the number of Warrants set forth above (the "Warrants").
Each Warrant entitles the holder thereof (the "Holder"), at its option and
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from New York Community Bancorp, Inc., a Delaware
corporation ("the Company"), 1.4036 shares (subject to certain adjustments as
set forth in the Warrant Agreement) of common stock of the Company (the "Common
Stock") at the Exercise Price. This Warrant Certificate shall terminate and
become void, and the related Warrants shall expire, as of 5:00 p.m., New York
time, on the earlier of (i) May 7, 2051, subject to certain exceptions or (ii)
the date the Warrants are redeemed by the Company pursuant to the terms of the
Warrant Agreement, as described below (the "Expiration Date"), or upon the
earlier exercise hereof as to all the shares of Common Stock subject hereto. The
number of shares issuable upon exercise of the Warrants shall be subject to
adjustment from time to time as set forth in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of ___________, 2002 (the "Warrant Agreement"),
between the Company and Wilmington Trust Company, as warrant agent (the "Warrant
Agent," which term includes any successor Warrant Agent under the Warrant
Agreement) 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. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is hereby
made to the Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties and obligations of the Company, the Warrant Agent
and the Holders of the Warrants. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Warrant Agreement. A copy of the
Warrant Agreement may be obtained for inspection by the Holder hereof upon
written request and reasonable advance notice to the Warrant Agent at its
address for notices specified in the Warrant Agreement.
Subject to redemption as described below, the Holder of this Warrant
Certificate shall have the right, prior to the Expiration Date, at such Holder's
option, to exercise the related Warrant and purchase the Exercise Amount
(subject to certain adjustments set forth in the Warrant Agreement) of Common
Stock at the Exercise Price; provided that the Exercise Conditions are met as of
such date. If the Warrant evidenced by this Warrant Certificate is not exercised
at or before 5:00 p.m., New York time, on its Expiration Date, such Warrant
shall become void, and all rights of the Holder of this Warrant Certificate
hereunder and under the Warrant Agreement shall cease. The Warrant or Warrants
evidenced by this Warrant Certificate may be exercised by giving written notice
to the Warrant Agent no later than 5:00 p.m., New York time, on the Business Day
preceding the proposed date of exercise of such Warrants and completing the form
of election to purchase set forth on the reverse hereof, and delivering the
same, together with this Warrant Certificate (if this Warrant Certificate shall
then be held in definitive form), to the Warrant Agent no later than 5:00 p.m.,
New York time, on the date of such exercise, together with a Cash Payment
(unless, in accordance with the Warrant Agreement, a Remarketing Payment is to
be made). In no event may a Holder satisfy its obligation to pay the Exercise
Price by tendering Preferred Securities.
A-2
On the date of exercise of the Warrant or Warrants evidenced by this
Warrant Certificate, the Company shall issue, and the Warrant Agent shall
deliver, to or upon the order of the Holder hereof, the Exercise Amount of
Common Stock to which such Holder is entitled, registered in such name or names
as may be directed by such Holder. The date on which this Warrant Certificate
and payment are received by the Warrant Agent as aforesaid shall be deemed to be
the date on which the related Warrant is exercised and the related Common Stock
is issued.
Notwithstanding anything to the contrary in this Warrant Certificate
or in the Warrant Agreement, (i) no fractional shares of Common Stock shall be
issued by the Company upon the exercise of any Warrant, (ii) if more than one
Warrant shall be exercised at the same time by the same Holder, the number of
shares of Common Stock issuable in connection with such exercise shall be
computed on the basis of the aggregate Exercise Amount of the Warrants so
exercised, and (iii) on the date a Holder exercises such Holder's Warrant, the
Company shall pay such Holder an amount in cash equal to the then-current Market
Price multiplied by the related fraction of Common Stock for such fractional
shares, computed to the nearest whole cent.
If fewer than all of the Warrants evidenced by this Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
The "Exercise Conditions" require that, with respect to any Warrant on
any date on which such Warrant is or is proposed to be exercised by the Holder
thereof, (i) a registration statement covering the issuance and sale of Common
Stock to Holders of Warrants upon exercise of such Warrants shall be effective
under the Securities Act, or such issuance and sale shall be exempt from the
registration requirements of the Securities Act, (ii) the shares of Common Stock
shall be registered, qualified or deemed to be exempt under the securities laws
of the state of residence of such Holder and (ii) a then-current prospectus
shall be available for delivery to exercising holders of the Warrants.
As provided in the Warrant Agreement, the number of shares of Common
Stock issuable upon the exercise of the Warrants is subject to an anti-dilution
adjustment upon the happening of certain events. The Warrant Agreement also
provides for certain adjustments and/or distributions in the event of certain
events relating to a merger or combination of the Company, and similar events.
Subject to satisfaction of the Exercise Conditions and certain other
conditions, the Company may elect to cause a remarketing of the Preferred
Securities and a contemporaneous redemption of the Warrants on the Redemption
Date, for cash, in an amount equal to the Warrant Value, in accordance with the
Warrant Agreement and related agreements.
A Holder (i) may elect to exercise a Warrant in lieu of Redemption, if
(A) such Warrant is held pursuant to the Unit Agreement, and such Holder has
opted out of participating in the Remarketing, by notice given to the Warrant
Agent and the Unit Agent as provided in the Unit Agreement; or (B) such Warrant
is not held pursuant to the Unit Agreement, by notice given to the Warrant
Agent, in each case prior to 5:00 p.m., New York time, on the Business Day prior
to the related Redemption Date. In the absence of an election to exercise a
Warrant in lieu of a Redemption, a Holder will be deemed to have elected to have
its Warrants redeemed on the Redemption Date.
If a Holder elects or is deemed to have elected to exercise a Warrant
pursuant to the preceding paragraph, then such Holder must tender the Exercise
Price for such Warrant as a Cash Payment, and must follow certain procedures set
forth in the Warrant Agreement; provided, however, that if (i) such Warrant is,
on the Remarketing Date, held pursuant to the Unit Agreement, (ii) such
A-3
Holder has not opted out of participating in the Remarketing, and (iii) a
Successful Remarketing shall have occurred, then the Exercise Price of such
Warrant will be deemed to have been paid by a Remarketing Payment, and the
Remarketing Agent will, in connection with such Remarketing Payment, apply the
proceeds of the Remarketing of the related Preferred Security in accordance with
the terms of the Remarketing Agreement and the Unit Agreement.
Any Warrant so redeemed or exercised will, upon such redemption or
exercise, cease to be outstanding.
If a Redemption cannot occur because of an inability, following the
Company's best efforts, to satisfy the Redemption Conditions, the Company will
promptly notify the Warrant Agent and each Holder (at its address specified in
the Warrant Register) thereof. Such event will not constitute a default under
the Warrant Agreement so long as the Company is not otherwise in violation
thereof; and the Company may, under such circumstances, subsequently seek to
remarket the Preferred Securities and contemporaneously redeem the Warrants.
The Company will, contemporaneously with the giving of notice of
Remarketing pursuant to the Declaration, furnish notice of Redemption to the
Warrant Agent, which will, within two (2) Business Days after receipt thereof,
furnish notice of such Redemption to Holders of Definitive Warrants, and the
Company will request, not later than three nor more than 18 business days prior
to the Remarketing Date, that DTC notify its Participants holding Warrants of
the Remarketing.
The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with the transfer or
exchange of the Warrant Certificates pursuant to the Warrant Agreement, but not
for any exchange or original issuance (not involving a transfer) with respect to
temporary Warrant Certificates, the exercise of the Warrants or the issuance of
the Common Stock.
This Warrant Certificate may be exchanged at the office of the Warrant
Agent by presenting this Warrant Certificate properly endorsed with a request to
exchange this Warrant Certificate for other Warrant Certificates evidencing an
equal number of Warrants, in accordance with the Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise
of the Warrants shall, upon such issue, be duly and validly issued and fully
paid and non-assessable.
The holder in whose name this Warrant Certificate is registered may be
deemed and treated by the Company and the Warrant Agent as the absolute owner of
this Warrant Certificate for all purposes whatsoever and neither the Company nor
the Warrant Agent shall be affected by notice to the contrary.
Neither this Warrant Certificate, nor the Warrant evidenced hereby,
entitles the Holder hereof to any of the rights of a shareholder of the Company.
A-4
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
NEW YORK COMMUNITY BANCORP, INC.
By:
-----------------------------
Name:
Title:
DATED:
Certificate of Authentication
This Warrant Certificate is one of the Warrant Certificates issued pursuant to
the Warrant Agreement described herein.
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Warrant Agent
By:
-----------------------------
Authorized Signatory
A-5
[REVERSE OF WARRANT CERTIFICATE]
FORM OF ELECTION TO PURCHASE COMMON STOCK
(to be executed only upon exercise of Warrants)
NEW YORK COMMUNITY BANCORP, INC.
The undersigned hereby irrevocably elects to exercise Warrants
------
at an Exercise Price of $ per Warrant to acquire the Exercise Amount (as
determined pursuant to the Warrant Agreement) per Warrant of Common Stock of New
York Community Bancorp, Inc. on the terms and conditions specified within this
Warrant Certificate and the Warrant Agreement therein referred to, surrenders
this Warrant Certificate and all right, title and interest therein and directs
that the shares of Common Stock deliverable upon such exercise be registered or
placed in the name and at the address specified below and delivered thereto.
The signature below must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatsoever, and must be guaranteed.
Dated:
---------------------------------------
Signature of Holder
---------------------------------------
Street Address
---------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
----------------------------
(Signature must be guaranteed by an
eligible guarantor institution (banks,
stock brokers, savings and loan
associations and credit unions) with
membership in an approved guarantee
medallion program pursuant to Securities
Exchange Commission Rule 17Ad-5)
Common Stock to be issued to:
Please insert social security or identifying number:
----------------------
Name:
---------------------------------------------------------------------
Street Address:
-----------------------------------------------------------
City, State and Zip Code:
-------------------------------------------------
Any unexercised Warrants represented by the Warrant Certificate to be
issued to:
Please insert social security or identifying number:
----------------------
A-6
Name:
----------------------------------------------------------------
Street Address:
------------------------------------------------------
City, State and Zip Code:
--------------------------------------------
A-7
[To Be Attached To Global Certificates]
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Certificate shall represent Warrants unless
------
otherwise indicated below.
The following increases or decreases in this Global
Certificate have been made:
Number of Warrants
Amount of increase in evidenced by the
Amount of decrease in Number Number of Warrants Global Certificate Signature of
of Warrants evidenced by the evidenced by the Global following such authorized officer
Date Global Certificate Certificate decrease or increase of Agent
--------- ---------------------------- ----------------------- -------------------- -------------------
A-8
EXHIBIT B
[Compensation of Warrant Agent]
B-1
TABLE OF CONTENTS
Page
Article I DEFINITIONS 1
Section 1.1 Defined Terms ............................................................ 1
Section 1.2 Interpretive Provisions .................................................. 8
Article II ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES ............... 8
Section 2.1 Issuance of Warrants ..................................................... 8
Section 2.2 Form, Denomination and Execution of Warrant Certificates ................. 8
Section 2.3 Issuance and Delivery of Warrant Certificates ............................ 10
Section 2.4 Lost, Stolen, Destroyed or Mutilated Warrant Certificates ................ 10
Section 2.5 Payment of Certain Taxes ................................................. 11
Section 2.6 Holders of Warrants; Rights of Holders ................................... 11
Article III DURATION AND EXERCISE OF WARRANTS ..................................................... 11
Section 3.1 Duration of Warrants ..................................................... 11
Section 3.2 Exercise of Warrants ..................................................... 12
Section 3.3 Redemption of Warrants ................................................... 13
Section 3.4 Redemption Procedures .................................................... 13
Article IV ANTI-DILUTION PROVISIONS .............................................................. 14
Section 4.1 Warrant Adjustments ...................................................... 14
Section 4.2 Merger, Consolidation, Sale, Transfer or Conveyance; Change of Control ... 21
Section 4.3 Other Events ............................................................. 23
Section 4.4 Notice of Adjustment ..................................................... 23
Section 4.5 Notice of Certain Transactions ........................................... 23
Section 4.6 Adjustment to Warrant Certificate ........................................ 24
Article V EXCHANGE AND TRANSFER OF WARRANTS ..................................................... 24
Section 5.1 Warrant Register; Exchange and Transfer of Warrants ...................... 24
Section 5.2 Treatment of Holders of Warrant Certificates ............................. 25
Section 5.3 Cancellation of Warrant Certificates ..................................... 26
Article VI CONCERNING THE WARRANT AGENT .......................................................... 26
Section 6.1 Warrant Agent ............................................................ 26
Section 6.2 Conditions of Warrant Agent's Obligations ................................ 26
Section 6.3 Resignation and Removal; Appointment of Successor ........................ 28
i
TABLE OF CONTENTS
(continued)
Page
Section 6.4 Compliance With Applicable Laws ........................................... 29
Section 6.5 Office .................................................................... 29
Article VII COVENANTS ............................................................................. 29
Section 7.1 Financial Statements and Reports of the Company ........................... 29
Section 7.2 Notices and Demands to the Company and Warrant Agent ...................... 30
Section 7.3 Governmental Approvals .................................................... 30
Section 7.4 Satisfaction of Exercise Conditions ....................................... 30
Section 7.5 Reservation of Shares ..................................................... 30
Article VIII MISCELLANEOUS ......................................................................... 30
Section 8.1 Supplements and Amendments ................................................ 30
Section 8.2 Addresses for Notices ..................................................... 31
Section 8.3 Governing Law ............................................................. 31
Section 8.4 Persons Having Rights Under Warrant Agreement ............................. 31
Section 8.5 Headings .................................................................. 31
Section 8.6 Counterparts .............................................................. 32
Section 8.7 Inspection of Agreement. A copy of this Warrant
Agreement shall be available at all reasonable
times, upon written request and reasonable advance
notice to the Warrant Agent, at the principal
corporate trust office of the Warrant Agent, for
inspection by the Holders of Warrants. .................................... 32
ii
EXHIBIT A - [FORM OF WARRANT CERTIFICATE] WARRANTS TO PURCHASE COMMON
STOCK OF NEW YORK COMMUNITY BANCORP, INC. [REVERSE OF
WARRANT CERTIFICATE] FORM OF ELECTION TO PURCHASE COMMON
STOCK (to be executed only upon exercise of Warrants) [TO BE
ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE A - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
EXHIBIT B - [Compensation of Warrant Agent]
iii
