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EXHIBIT 4.7
FORM OF COMMON STOCK WARRANT AGREEMENT
THE XXXXXXX-XXXXXXXX COMPANY
AND
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AS WARRANT AGENT
WARRANT AGREEMENT
DATED AS OF
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TABLE OF CONTENTS*
PAGE
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Parties .............................................................................. 1
Recitals .............................................................................. 1
ARTICLE I ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates............................................... 1
Section 1.2 Form of Warrant Certificate.................................................... 1
Section 1.3 Execution and Authentication of Warrant Certificates........................... 1
Section 1.4 Temporary Warrant Certificates................................................. 2
Section 1.5 Payment of Taxes .............................................................. 2
Section 1.6 Definition of Holder........................................................... 2
ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price ................................................................. 3
Section 2.2 Duration of Warrants .......................................................... 3
Section 2.3 Exercise of Warrants .......................................................... 3
Section 2.4 Reservation of Shares ......................................................... 4
ARTICLE III OTHER TERMS OF WARRANTS
Section 3.1 Adjustment of Exercise Price and Number
of Shares Purchasable or Number of Warrants..................................... 4
ARTICLE IV [REGISTRATION,] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer Warrant Certificates ...................... 6
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates ..................... 7
Section 4.3 Persons Deemed Owners ......................................................... 7
Section 4.4 Cancellation of Warrant Certificates .......................................... 7
ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants or Warrant Certificates ....... 7
Section 5.2 Holder of Warrant Certificate May Enforce Rights............................... 8
ARTICLE VI CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent ................................................................. 8
Section 6.2 Conditions of Warrant Agent's Obligations...................................... 8
Section 6.3 Resignation, Removal and Assignment of Successor............................... 9
ARTICLE VII MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject Certain Conditions............. 10
Section 7.2 Rights and Duties of Successor Corporation..................................... 10
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* The Table of Contents is not part of the Warrant Agreement.
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Section 7.3 Amendment..................................................................... 10
Section 7.4 Notices and Demands to the Company and Warrant Agent ......................... 11
Section 7.5 Notices to Warrantholders..................................................... 11
Section 7.6 Addresses .................................................................... 11
Section 7.7 Governing Law................................................................. 11
Section 7.8 Delivery of Prospectus ....................................................... 12
Section 7.9 Obtaining of Government Approvals ............................................ 12
Section 7.10 Persons Having Rights Under Warrant Agreement................................. 12
Section 7.11 Headings ..................................................................... 12
Section 7.12 Counterparts.................................................................. 12
Section 7.13 Inspection of Agreement ...................................................... 12
Testimonium .............................................................................. 13
Signatures .............................................................................. 13
Exhibit A Form of Warrant Certificate................................................... A-1
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THIS WARRANT AGREEMENT, dated as of _______________, is between The
Xxxxxxx-Xxxxxxxx Company, a corporation duly organized and existing under the
laws of the State of Ohio (the "Company") and ____________, a [corporation]
[national banking association] organized and existing under the laws of
_____________, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF OFFERED SECURITIES AND
WARRANTS - [title of Offered Securities being offered] (the "Offered
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase shares of common
stock, par value $1.00 per share (the "Common Stock"), of the Company; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be
issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 ISSUANCE OF WARRANT CERTIFICATES.
[IF WARRANTS ALONE -- Upon issuance, each Warrant Certificate shall
evidence one or more Warrants.] [IF OFFERED SECURITIES AND WARRANTS -- Warrant
Certificates shall be [initially] issued in units with the Offered Securities
and shall [not] be separately transferable [before __________, ____ (the
"Detachable Date")]. Each such unit shall consist of a Warrant Certificate or
Certificates evidencing an aggregate of __________ Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase one share of Common Stock.
Section 1.2 FORM OF WARRANT CERTIFICATE.
The Warrant Certificates (including the Form(s) of Exercise [and
Assignment] to be set forth on the reverse thereof) shall be in substantially
the form set forth in Exhibit A hereto, shall be printed, lithographed or
engraved on steel engraved borders (or in any other manner determined by the
officers executing such Warrant Certificates, with the execution thereof by such
officers conclusively evidencing such determination) and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any securities exchange
on which the Warrant Certificates may be listed or as may, consistently
herewith, be determined by the officers executing such Warrant Certificates,
with the execution thereof by such officers conclusively evidencing such
determination.
Section 1.3 EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES.
The Warrant Certificates shall be executed on behalf of the Company by
its Chairman, its Chief Executive Officer, its President or one of its Vice
Presidents (any reference to a Vice President of the Company herein shall be
deemed to include any Vice President of the Company whether or not designated by
a number or a word or words added before or after the title "Vice President"),
under its corporate seal reproduced thereon attested to by its Treasurer or
Secretary or one of its Assistant Treasurers or Assistant Secretaries. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile. The seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
Warrant Certificates evidencing the right to purchase a number of
shares of Common Stock having an
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aggregate value (based on the then current market price per share of Common
Stock determined as set forth in Section 3.1(e) hereof), not exceeding
$_________ (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
authenticate Warrant Certificates evidencing Warrants representing the right to
purchase a number of shares of Common Stock having an aggregate liquidation
value not exceeding $ _________ and shall deliver such Warrant Certificates to
or upon the order of the Company. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall authenticate a Warrant Certificate
only if the Warrant Certificate is issued in exchange or in substitution for one
or more previously authenticated Warrant Certificates or in connection with
their transfer, as hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Warrant
Certificates or did not hold such offices at the date of such Warrant
Certificates.
Section 1.4 TEMPORARY WARRANT CERTIFICATES.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine,
with the execution thereof by such officers conclusively evidencing such
determination.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ____________], without charge to the Holder (as defined in
Section 1.6 below). Upon surrender for cancellation of any one or more temporary
Warrant Certificates, the Company shall execute and the Warrant Agent shall
authenticate and deliver in exchange therefor definitive Warrant Certificates
representing the same aggregate number of Warrants. Until so exchanged, the
temporary Warrant Certificates shall in all respects be entitled to the same
benefits under this Agreement as definitive Warrant Certificates.
Section 1.5 PAYMENT OF TAXES.
The Company will pay all stamp taxes and other duties, if any, to
which, under the laws of the United States of America or any State or political
subdivision thereof, this Agreement or the original issuance of the Warrant
Certificates may be subject.
Section 1.6 DEFINITION OF HOLDER.
The term "Holder" as used herein shall mean [IF OFFERED SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to the Detachable Date,
the registered owner of the Offered Security to which such Warrant Certificate
was initially attached, and, after such Detachable Date,] the person in whose
name at the time such Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose pursuant to Section 4.1. [IF
OFFERED SECURITIES AND WARRANTS WHICH ARE
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NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company will, or
will cause the registrar of the Offered Securities to, make available to the
Warrant Agent current information as to Holders of the Offered Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 WARRANT PRICE.*
During the period set forth in Section 2.2, each Warrant shall entitle
the Holder thereof, subject to the provisions of this Agreement, to purchase
from the Company one share of Common Stock at the exercise price of $_________.
Such exercise price of each Warrant is referred to in this Agreement as the
"Exercise Price."
Section 2.2 DURATION OF WARRANTS.
Any Warrant evidenced by a Warrant Certificate may be exercised at any
time, as specified herein, on or after [the date thereof] [________, ____] and
at or before the close of business on ________, ____ (the "Expiration Date").
Each Warrant not exercised at or before the close of business on the Expiration
Date shall become void, and all rights of the Holder of the Warrant Certificate
evidencing such Warrant under this Agreement or otherwise shall cease.
Section 2.3 EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.2, any whole number
of Warrants may be exercised by surrendering the Warrant Certificate evidencing
such Warrants at the place or at the places set forth in the Warrant
Certificate, with the purchase form set forth in the Warrant Certificate duly
executed, accompanied by payment in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds,] of
the Exercise Price for each Warrant exercised. The date on which payment in full
of the Exercise Price for a Warrant and the duly executed and completed Warrant
Certificate are received by the Warrant Agent shall be deemed to be the date on
which such Warrant is exercised. The Warrant Agent shall deposit all funds
received by it as payment for the exercise of Warrants to the account of the
Company maintained with it for such purpose and shall advise the Company by
telephone at the end of each day on which such a payment is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the terms and
conditions of this Agreement and the Warrant Certificates, advise the Company of
(i) the number of Warrants so exercised, (ii) the instructions of each Holder of
the Warrant Certificates evidencing such Warrants with respect to delivery of
the certificate or certificates representing shares of Common Stock to which
such Holder is entitled upon such exercise, and instructions of such Holder as
to delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iii) such other information as the
Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, a certificate or certificates representing
the number of shares of Common Stock to which such Holder is entitled in such
name or names as may be directed by such Holder; and, if fewer than all of the
Warrants evidenced by such Warrant Certificate were exercised, the Company shall
execute and an authorized officer of the Warrant Agent shall manually
authenticate and deliver a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issuance of the Common Stock; and in the event that any
such transfer is involved, the Company shall not be required to issue or deliver
any shares of Common
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* Complete and modify the provisions of this Section as appropriate to reflect
the exact terms of the Warrants.
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Stock 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 2.4 RESERVATION OF SHARES.
For the purpose of enabling it to satisfy any obligation to issue
shares of Common Stock upon exercise of Warrants, the Company will, at all times
through the close of business on the Expiration Date, reserve and keep
available, free from preemptive rights and out of its aggregate authorized but
unissued shares or treasury shares, or both, of Common Stock, the number of
shares of Common Stock deliverable upon the exercise of all outstanding
Warrants.
The Company covenants that all shares of Common Stock issued upon
exercise of the Warrants will, upon issuance in accordance with the terms of
this Agreement, be fully paid and nonassessable and free from all taxes, liens,
charges and security interests created by or imposed upon the Company with
respect to the issuance and holding thereof.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE
OR NUMBER OF WARRANTS.
The Exercise Price, the number of shares of Common Stock purchasable
upon the exercise of each Warrant and the number of Warrants outstanding are
subject to adjustment from time to time upon the occurrence of the events
enumerated in this Section 3.1.
(a) If the Company shall (i) pay a dividend on or make a
distribution of shares of its capital stock, whether shares of Common Stock or
shares of its capital stock of any other class, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of shares of Common
Stock purchasable upon exercise of each Warrant immediately prior thereto shall
be adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of shares of Common Stock or other securities of the Company
which such holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event, retroactive to
immediately after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at a price
per share that is lower than the market price per share of Common Stock (as
defined in paragraph (e) below) at the record date mentioned below, the number
of shares of Common Stock thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of shares of Common Stock
theretofore purchasable upon exercise of each Warrant by a fraction, of which
the numerator shall be (i) the number of shares of Common Stock outstanding on
the date of issuance of such rights, options or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase, and of
which the denominator shall be (ii) the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants plus the
number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at the market price per share
of Common Stock at such record date. Such adjustment shall be made whenever such
rights, options or warrants are issued, and shall become effective retroactive
to immediately after the record date for the determination of stockholders
entitled to receive such rights, options or warrants.
(c) If the Company shall distribute to all holders of its shares
of Common Stock evidences of its indebtedness or assets (excluding cash
dividends or
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distributions payable out of capital surplus and dividends or distributions
referred to in paragraph (a) above) or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in paragraph (b)
above), then in each case the number of shares of Common Stock thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of shares of Common Stock theretofore purchasable upon the exercise
of each Warrant, by a fraction, of which the numerator shall be (i) the then
current market price per share of Common Stock (as defined in paragraph (e)
below) on the date of such distribution, and of which the denominator shall be
(ii) the then current market price per share of Common Stock less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights, options or warrants
or convertible or exchangeable securities applicable to one share of Common
Stock. Such adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to immediately
after the record date for the determination of stockholders entitled to receive
such distribution.
(d) In the event of any capital reorganization or any
reclassification of the Common Stock (except as provided in paragraphs (a)
through (c) above), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Common Stock to which he or she would have
become entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he or she would have been entitled to receive at
the same aggregate Exercise Price upon such reorganization or reclassification
if his or her Warrants had been exercised immediately prior thereto.
(e) For the purpose of any computation under paragraphs (b) and
(c) of this Section 3.1, the current or closing market price per share of Common
Stock at any date shall be deemed to be the average of the daily closing prices
for _________ consecutive trading days commencing __________ trading days before
the date of such computation. The closing price for each day shall be the last
sale price for such day or in the case no such reported sale takes place on such
day, the average of the reported closing bid and asked price, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange (the
"NYSE") or if the Common Stock is not listed on the NYSE, then on the principal
United States national securities exchange on which the Common Stock is listed
or quoted. If the Common Stock is not listed or quoted on any United States
national securities exchange, then the current or closing market price per share
of Common Stock shall be determined by the Board of Directors of the Company in
good faith.
(f) Whenever the number of shares of Common Stock purchasable upon
the exercise of each Warrant is adjusted as herein provided, the Exercise Price
payable upon the exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of shares so purchasable immediately thereafter.
(g) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (d) of this Section 3.1, to adjust the number
of Warrants in substitution for an adjustment in the number of shares of Common
Stock purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be exercisable
for the same number of shares of Common Stock as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
hundredth) obtained by dividing the Exercise Price in effect prior to adjustment
of the Exercise Price by the Exercise Price in effect after adjustment of the
Exercise Price. The Company shall notify the holders of Warrants, in the same
manner as provided in the first paragraph of Section 7.5, of its election to
adjust the number of Warrants, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (g) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to paragraph (h), the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if required
by the Company, new Warrant Certificates evidencing all the Warrants to be
issued, executed and registered in the manner specified in Section 1 (and which
may bear, at the option of the Company, the adjusted Exercise Price) and shall
be registered in the names of the holders of record of Warrant Certificates on
the record date specified in the notice.
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(h) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to paragraph (g) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants, there shall be paid to
the registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant on the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable (the "Valuation Date"). For purposes of this paragraph (h),
the current market value of a Warrant shall be the aggregate closing market
price on the Valuation Date (determined as set forth in paragraph (e)) of all
shares of Common Stock issuable upon exercise of one Warrant plus the fair value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of any other assets or securities purchasable upon exercise
of one Warrant less the Exercise Price of one Warrant.
(i) Notwithstanding any adjustment pursuant to Section 3.1 in the
number of shares of Common Stock purchasable upon the exercise of a Warrant, the
Company shall not be required to issue fractions of shares of Common Stock upon
exercise of the Warrants or to distribute certificates which evidence fractional
shares. In lieu of fractional shares, there shall be paid to the registered
holders of Warrant Certificates at the time such Warrant Certificates are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of a share of Common Stock. For purposes of this paragraph
(i), the current market value of a share of Common Stock shall be the closing
market price (determined as set forth in paragraph (e)) of a share of Common
Stock for the trading day immediately prior to the date of such exercise.
ARTICLE IV
[REGISTRATION,] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 REGISTRATION, EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
[If registered Warrants - - The Warrant Agent shall keep, at its
corporate trust office [and at _________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and transfers of outstanding Warrant Certificates].
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE --
Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer or exchange of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer or exchange the Warrant Certificate or Certificates to which
such Offered Security was initially attached. After the Detachable Date, upon]
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF
WARRANTS ALONE -- Upon] surrender at the corporate trust office of the Warrant
Agent [or _________] of Warrant Certificates properly endorsed [or accompanied
by appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates or may be transferred in whole or in part; provided that Warrant
Certificates issued in exchange for [or upon transfer of] surrendered Warrant
Certificates shall evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered. No service charge shall be made for any exchange
[or transfer] of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or governmental charge that may
be imposed in connection with any such exchange [or transfer]. Whenever any
Warrant Certificates are so surrendered for exchange [or transfer], the Company
shall execute and an authorized officer of the Warrant Agent shall manually
authenticate and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates as so requested. The Warrant Agent shall not
be required to effect any exchange [or transfer] which would result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange [or transfer].
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Section 4.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and an officer of the Warrant Agent shall
manually authenticate and deliver in exchange therefor a new Warrant Certificate
of like tenor and bearing a number not contemporaneously outstanding. If there
shall be delivered to the Company and the Warrant Agent (i) evidence to their
satisfaction of the destruction, loss or theft of any Warrant Certificate and of
the ownership thereof and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser or a protected purchaser,
the Company shall execute and upon its request an officer of the Warrant Agent
shall manually authenticate and deliver, in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing
a number not contemporaneously outstanding. Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Warrant Agent) connected therewith. Every new Warrant Certificate issued
pursuant to this Section in lieu of any destroyed, lost or stolen Warrant
Certificate shall evidence an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Warrant Certificates.
Section 4.3 PERSONS DEEMED OWNERS.
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, the Company, the Warrant Agent and
all other persons may treat the owner of any Offered Security as the owner of
the Warrant Certificates initially attached thereto for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced by
such Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date, and] Prior to due presentment of a Warrant Certificate for
registration of transfer, the Company, the Warrant Agent and all other persons
may treat the Holder as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
Section 4.4 CANCELLATION OF WARRANT CERTIFICATES.
Any Warrant Certificate surrendered for exchange[, transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent, and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly cancelled by it and shall
not be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly cancelled by the Warrant Agent. All cancelled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Company requests their return to it.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 NO RIGHTS AS STOCKHOLDERS CONFERRED BY WARRANTS OR WARRANT
CERTIFICATES.
No Warrant Certificate or Warrant evidenced thereby shall entitle the
Holder thereof to any of the rights of a stockholder, including, without
limitation, the right to receive dividends.
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Section 5.2 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of
any Warrant Certificate, without the consent of the Warrant Agent, any
stockholder or the Holder of any other Warrant Certificate, may, on its own
behalf and for its own benefit, 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 the Warrant or Warrants evidenced by his or
her Warrant Certificate in the manner provided in the Warrant Certificates and
in this Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 WARRANT AGENT.
The Company hereby appoints ____________ as Warrant Agent of the
Company in respect of the Warrants and the Warrant Certificates upon the terms
and subject to the conditions herein set forth, and ___________ hereby accepts
such appointment. The Warrant Agent shall have the power and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such further
power and authority to act on behalf of the Company as the Company may hereafter
grant to or confer upon it. All of the terms and provisions with respect to such
power 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 herein set forth, upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders from time
to time of the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as such Warrant Agent hereunder, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance at any time of its powers or
duties hereunder. The obligations of the Company under this subsection (a) shall
survive the exercise of the Warrant Certificates and the resignation or removal
of the Warrant Agent.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered, or omitted by it hereunder in good faith and in reliance
thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken 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 the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its officers,
directors and employees, or any other agent of the Company, in its individual or
any other capacity, may become the owner of, or acquire any interest in, any
Warrant Certificates, with the same rights that it would have if it were not
such Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent
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for, any committee or body of holders of securities or other obligations of the
Company as freely as if it were not such Warrant Agent, officer, director,
employee or other agent.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Warrant Agent and except for the negligence of the Warrant Agent.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall
not be responsible for any of the Recitals or representations contained herein
or in the Warrant Certificates (except as to the Warrant Agent's Certificate of
Authentication thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates
or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a Holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 7.4 hereof, to make any demand upon the Company.
Section 6.3 RESIGNATION, REMOVAL AND ASSIGNMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders from time
to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which it desires its resignation to become effective; provided that,
without the consent of the Company, such date shall not be less than three
months after the date on which such notice is given. 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
on which the Company expects such removal to become effective. Such resignation
or removal shall take effect upon the appointment by the Company of a successor
Warrant Agent (which shall be a bank or trust company organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia and authorized under such laws to exercise corporate
trust powers) by an instrument in writing filed with such successor Warrant
Agent and the acceptance of such appointment by such successor Warrant Agent
pursuant to Section 6.3(d).
(c) In case at any time the Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors or consent to the appointment of a
receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, 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
the Warrant
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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 monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other corporation,
provided that in any such case, either the Company shall be the continuing
corporation, or the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged or the corporation which
acquired by purchase or conveyance all or substantially all of the assets of the
Company shall expressly assume the obligations of the Company hereunder.
Section 7.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein, and the predecessor corporation, except
in the event of a lease, shall be relieved of any further obligation under this
Agreement and the Warrants. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the shares of Common Stock issuable pursuant to the terms hereof.
Section 7.3 AMENDMENT.
This Agreement may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provision
contained herein, or making such provisions in regard to matters or questions
arising under this Agreement as the Company may deem necessary or desirable;
provided that such action shall not adversely affect the interests of the
Holders of the Warrant Certificates in any material respect. Any amendment or
supplement to this Agreement or the Warrants that has a material adverse effect
on the interests of Holders of any series of Warrants shall require the written
consent of the Holders of a majority of the then outstanding Warrants of such
series. The consent of each Holder of a Warrant affected shall be required for
any amendment pursuant to which the Warrant Price would be increased or the
number of shares of Common Stock purchasable upon exercise of Warrants would be
decreased. The Warrant Agent may, but shall not be obligated to, enter into any
amendment to this Agreement which affects the Warrant Agent's own rights, duties
or immunities under this Agreement or otherwise.
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Section 7.4 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
Section 7.5 NOTICES TO WARRANTHOLDERS.
Upon any adjustment of the number of shares purchasable upon exercise
of each Warrant, the Exercise Price or the number of Warrants outstanding
pursuant to Section 3.1, the Company within _______ calendar days thereafter
shall (i) cause to be filed with the Warrant Agent a certificate of the Chief
Financial Officer of the Company setting forth the Exercise Price and either the
number of shares of Common Stock and other securities or assets purchasable upon
exercise of each Warrant or the additional number of Warrants to be issued for
each previously outstanding Warrant, as the case may be, after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such adjustment are made, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein, and (ii) cause to
be given to each of the registered holders of the Warrant Certificates at such
holder's address appearing on the Warrant Register written notice of such
adjustments by first-class mail, postage prepaid. Where appropriate, such notice
may be given in advance and included as part of the notice required to be mailed
under the provisions of this Section 7.5.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution (other than
a cash dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities convertible
into shares of Common Stock or any right to subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation, merger, or sale of
all substantially all of its property, assets, and business as an entirety);
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first-class mail, postage prepaid,
and (ii) make a public announcement in a daily newspaper of general circulation
in ___________________ of such event, such giving of notice and publication to
be completed at least ________ calendar days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. The failure
to give the notice required by this Section 7.5 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
dissolution, liquidation or winding up or the vote upon or any other action
taken in connection therewith.
Section 7.6 ADDRESSES.
Any communications from the Company to the Warrant Agent with respect
to this Agreement shall be addressed to _______________, Attention:
________________, and any communications from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to The Xxxxxxx-Xxxxxxxx
Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Corporate
Secretary (or such other address as shall be specified in writing by the Warrant
Agent or by the Company).
Section 7.7 GOVERNING LAW.
THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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Section 7.8 DELIVERY OF PROSPECTUS.
The Company will furnish to the Warrant Agent sufficient copies of a
prospectus, appropriately supplemented, relating to the Common Stock (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant Certificate, the Warrant Agent will deliver to the person designated to
receive a certificate representing shares of Common Stock, prior to or
concurrently with the delivery of such Securities, a Prospectus.
Section 7.9 OBTAINING OF GOVERNMENTAL APPROVALS.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities acts filings
under United States Federal and State laws (including, without limitation, to
the extent required, the maintenance of the effectiveness of a registration
statement in respect of the Common Stock under the Securities Act of 1933, as
amended), which may be or become required in connection with exercise of the
Warrant Certificates and the original issuance and delivery of the Common Stock.
Section 7.10 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions herein 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 of the Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements contained in this Agreement shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 7.11 HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience of reference only and shall not affect the construction hereof.
Section 7.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 7.13 INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable times at
the principal corporate trust office of the Warrant Agent [and at ___________]
for inspection by the Holder of any Warrant Certificate. The Warrant Agent may
require such Holder to submit its Warrant Certificate for inspection by it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seal to be hereunto affixed and
attested, all as of the day and year first above written.
THE XXXXXXX-XXXXXXXX COMPANY
By:____________________
Name:
Title:
[SEAL]
Attest:____________________
Name:
Title:
[NAME OF WARRANT AGENT]
By:____________________
Name:
Title:
[SEAL]
Attest:____________________
Name:
Title:
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
FORM OF LEGEND IF OFFERED SECURITIES [Prior to __________, this Warrant Certificate may be
WITH WARRANTS WHICH ARE NOT transferred or exchanged if and only if [Title of
IMMEDIATELY DETACHABLE Security] to which it was initially attached is so
transferred or exchanged.]
FORM OF LEGEND IF WARRANTS ARE NOT [Prior to __________, Warrants evidenced by this
IMMEDIATELY EXERCISABLE Warrant Certificate cannot be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON ____________, ____
THE XXXXXXX-XXXXXXXX COMPANY
Warrant Certificate representing
Warrants to purchase
Common Stock
as described herein.
____________________
No.____ __________ Warrants
This certifies that __________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
registered owner to purchase, at any time [after the close of business on
_________, ____, and] on or before the close of business on ________, ____, one
share of common stock, par value $1.00 per share (the "Common Stock"), of The
Xxxxxxx-Xxxxxxxx Company (the "Company"), on the following basis.* During such
period, each Warrant shall entitle the Holder thereof, subject to the provisions
of the Warrant Agreement (as defined below), to purchase from the Company one
share of Common Stock at the exercise price of $________ (the "Exercise Price").
The Holder of this Warrant Certificate may exercise the Warrants evidenced
hereby, in whole or in part, by surrendering this Warrant Certificate, with the
purchase form set forth hereon duly completed, accompanied by payment in full,
in lawful money of the United States of America, [in cash or by certified check
or official bank check in New York Clearing House funds or by bank wire transfer
in immediately available funds], the Exercise Price for each Warrant exercised,
to the Warrant Agent (as hereinafter defined), at the corporate trust office of
[name of Warrant Agent], or its successor, as warrant agent (the "Warrant
Agent") [or at ________], the addresses specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement.
The term "Holder" as used herein shall mean [IF OFFERED DEBT SECURITIES
WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to ________, ____
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which such Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase shares
---------------
* Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
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of Common Stock. Upon any exercise of fewer than all of the Warrants evidenced
by this Warrant Certificate, there shall be issued to the registered owner
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, ____ (the "Warrant Agreement"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ________].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- prior to ________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. Additionally, on or
prior to the Detachable Date, each transfer of such Offered Security on the
register of the Offered Securities shall operate also to transfer this Warrant
Certificate. After the Detachable Date, this] [IF OFFERED DEBT SECURITIES WITH
WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE--This] Warrant
Certificate and all rights hereunder, may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Except as provided in the immediately preceding paragraph, after]
[IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ALONE-After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
______________________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof
to any of the rights of a stockholder, including, without limitation, the right
to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until authenticated by the Warrant Agent.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated:__________
THE XXXXXXX-XXXXXXXX COMPANY
By:____________________________
Name:
Title:
Attest:
________________________________
Certificate of Authentication
This is one of the Warrant Certificates referred to in the within-mentioned
Warrant Agreement.
________________________________
As Warrant Agent
By:_____________________________
Authorized Signature
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[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, ____________, Attn: [or ____________],
which payment should specify the name of the Holder of this Warrant Certificate
and the number of Warrants exercised by such Holder. In addition, the Holder of
this Warrant Certificate should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to the
Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase ________ shares of common
stock, par value $1.00 per share (the "Common Stock"), of The Xxxxxxx-Xxxxxxxx
Company and represents that he or she has tendered payment for such shares of
Common Stock [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds] to
the order of The Xxxxxxx-Xxxxxxxx Company, c/o Treasurer, in the amount of
$________ in accordance with the terms hereof. The undersigned requests that
said shares of Common Stock be registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said number of shares of Common Stock is less than all of the shares
of Common Stock purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrants evidenced
hereby be issued and delivered to the undersigned unless otherwise specified in
the instructions below.
Dated:_________________
Name:__________________________ __________________________
(Please Print) (Insert Social Security or Other Identifying Number of Holder)
Address:_____________________________
_____________________________
_____________________________
________________________
Signature
(Signature must conform in all respects to name of holder as specified on the
face of this Warrant and must bear a signature guarantee by a, trust company or
member broker of the New York, Chicago or Pacific Stock Exchange.)
This Warrant may be exercised at the following addresses:
By hand at: _____________________________ By mail at _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
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(Instructions as to form and delivery of
certificates representing shares of Common Stock
and/or Warrant Certificates):
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _______________ hereby sells, assigns and transfers unto
______________________
______________________
______________________
Please print name and address
(including zip code)
Please insert social security or other identifying number
______________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:________________
______________________
Signature
(Signature must conform in all respects to name of holder as specified on the
face of this Warrant and must bear a signature guarantee by a, trust company or
member broker of the New York, Chicago or Pacific Stock Exchange.)
Signature Guaranteed:
______________________
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