EXHIBIT 4.3
EXECUTION COPY
WARRANT AGREEMENT, dated as of May 12, 1997, between ORACLE CORPORATION, a
Delaware corporation (the "Company"), and BANKBOSTON, N.A., a national banking
association, as warrant agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue and deliver its warrant certificates
(the "Warrant Certificates") evidencing Equity Call Warrants in the series and
with the terms indicated on Schedule I hereto (as such Schedule may be amended
or modified from time to time) (collectively, the "Warrants" or individually, a
"Warrant"), each representing the right to purchase, subject to adjustment and
to the other terms and conditions set forth herein, one share of its Common
Stock (as defined below);
WHEREAS, each Warrant shall entitle the registered holder thereof (subject
to the Company's rights to suspend exercises of Warrants or to elect Cash
Settlement or Net Share Settlement of such exercises) to acquire from the
Company one share of Common Stock, subject to adjustment; and
WHEREAS, the Warrant Agent, at the request of the Company, has agreed to
act as the Agent of the Company in connection with the issuance, registration,
transfer, exchange and exercise of the Warrants;
NOW, THEREFORE, in consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company, the Warrant Agent and the registered
holders from time to time of the Warrants, the Company and the Warrant Agent
hereby agree as follows:
1 DEFINITIONS. (a) Certain Definitions. As used in this Warrant
Agreement, the following terms shall have the following respective meanings:
"AFFILIATE" of any person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person. For purposes of this definition, "control", when used with respect
to any person, means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"BUSINESS DAY" means any day, other than Saturday, Sunday or a day on
which either the New York Stock Exchange or the American Stock Exchange is not
open for securities trading or commercial banks in The City of New York are
required or authorized by law or executive order to close.
"CASH SETTLEMENT VALUE" in respect of any exercised Warrant means an amount
equal to the excess, if any, of the arithmetic average of (i) the Market Value
of the Underlying Common Stock for the period commencing on the fourth and
ending on and including the thirteenth Business Day immediately following the
date on which such Warrant is exercised, subject to adjustment pursuant to
Section 6 hereof, the provisions of which shall be applied for this purpose
through such thirteenth Business Day, over (ii) the Purchase Price relating to
such Warrant as adjusted pursuant to Section 6 hereof through such thirteenth
Business Day.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company together with any other securities that may be issued by the Company in
substitution therefor.
"COMPANY" has the meaning set forth in the preamble to this Warrant
Agreement and its successors and assigns.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPIRATION DATE" means for any series of Warrants, the date indicated by
the entry opposite the designation of such series on Schedule I hereto or such
later date as shall be determined in accordance with Section 4(f), in a written
statement to the Warrant Agent and with notice to registered holders of Warrants
in the manner provided for in Section 19 hereof.
"FINAL EXPIRATION DATE" means the latest Expiration Date of all Warrants
issued hereunder.
"FIRST EXERCISE DATE" means, with respect to any series of Warrants, the
first exercise date indicated by the entry opposite the designation of such
series on Schedule I hereto.
"HOLDERS" means, at any time, the registered holders of the Warrants
outstanding at such time.
"MAJOR DEALER" means a securities broker/dealer registered with the SEC
having net capital of $200 million or more and which is active as a dealer or
market-maker in warrants similar to the Warrants.
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"MARKET VALUE" of Underlying Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of such Underlying Common Stock on the New York Stock
Exchange (the "NYSE") on such date or, if such Underlying Common Stock is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which such
Underlying Common Stock is so listed, or if such Underlying Common Stock is not
so listed on a United States national or regional securities exchange, the
average of the last quoted bid and offer price for such Underlying Common Stock
as reported by Nasdaq National Market, or, if such Underlying Common Stock is
not so reported, the average of the last quoted bid and offer price for such
Underlying Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of such Underlying Common Stock on such date as
determined by a nationally recognized independent banking firm retained for this
purpose by the Company.
The "NET SHARE SETTLEMENT NUMBER" in respect of any exercised Warrant shall
be a number of shares of Underlying Common Stock equal to the Cash Settlement
Value in respect of such Warrant divided by the Valuation Stock Price in respect
of such Warrant.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PURCHASE PRICE" means for any series of Warrants, the purchase price per
share of Underlying Common Stock to be paid upon the exercise of each Warrant of
such series in accordance with the terms hereof, which price shall initially be
the purchase price indicated by the entry opposite the designation of such
series on Schedule I hereto, subject to adjustment from time to time pursuant to
Section 6 hereof.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"UNDERLYING COMMON STOCK" means the shares of Common Stock and any other
securities, cash or other property issuable or issued upon the exercise of the
Warrants.
The "VALUATION STOCK PRICE" in respect of any exercised Warrant shall equal
the arithmetic average of the Market Value of the Underlying Common Stock on the
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thirteenth through seventeenth Business Days immediately following the date on
which such Warrant is exercised, subject to adjustment pursuant to Section 6
hereof, the provisions of which shall be applied for this purpose through such
seventeenth Business Day.
"WARRANT AGENT" has the meaning set forth in the preamble to this Warrant
Agreement or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
(b) CERTAIN OTHER DEFINED TERMS:
Term Defined in Section
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"Cash Settlement".............................. 4(d)
"Current Market Price Per Common Share"........ 6(f)
"Exercise Date"................................ 4(b)
"Net Share Settlement"......................... 4(d)
"Notice of Exercise"........................... 4(b)
"Resale Restriction Termination Date".......... In the legend contained in
Exhibit A hereto.
"Warrant Agent's Office"....................... 4(b)
"Warrant Certificates"......................... Preamble
"Warrants"..................................... Preamble
2 INITIAL ISSUANCE AND FORM OF WARRANT CERTIFICATES. Subject to the
provisions of this Agreement, Warrants (in the series identified on Schedule I
hereto) to acquire initially an aggregate of no more than 8,000,000 shares of
Common Stock, subject to adjustment, may be issued and delivered by the Company
hereunder. The Warrant Certificates for each series of Warrants shall be issued
in registered form only and substantially in the form attached hereto as Exhibit
B, shall be dated the date of issuance thereof (whether upon initial issuance,
registration of transfer, exchange or replacement) and shall bear the legend set
forth in Exhibit B together with such other legends and endorsements typed,
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or
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regulation pursuant thereto or with any rule or regulation of any securities
exchange or market on which the Warrants may be listed, or to conform to
customary usage.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, and which will be substantially
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued.
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 to the Warrant Agent, without
charge to the Holder. Until so exchanged the temporary Warrant Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Warrant Certificates.
3 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Warrant
Certificates evidencing Warrants to purchase initially an aggregate of up to
8,000,000 shares of Common Stock shall be executed, on or after the date of this
Warrant Agreement, by the Company and delivered to the Warrant Agent for
countersignature, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates upon the order and at the direction of the Company to
the purchasers thereof on the date of issuance. The Warrant Agent is hereby
authorized to countersign and deliver Warrant Certificates as required by this
Section 3 or by Section 4(c), Section 6, Section 10 or Section 18 hereof. The
Warrant Certificates shall be executed on behalf of the Company by its Chairman
of the Board, Chief Executive Officer or President or by any of its Vice
Presidents and attested by its Secretary or Assistant Secretary, in each case,
either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company whose signature shall have been placed upon any of the Warrant
Certificates shall cease to be the Chairman, Chief Executive Officer, President
or a Vice President, Secretary or Assistant Secretary of the Company before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent
and issued and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company.
The Company and the Warrant Agent may deem and treat the registered
Holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the Holder thereof and
for all other
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purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
4 DURATION AND EXERCISE OF WARRANTS. (a) Duration. Subject to the
terms and conditions set forth herein (including those set forth in Section 4(f)
hereof), Warrants of any series shall be exercisable no sooner than the First
Exercise Date of such series (or if such day is not a Business Day, the next
succeeding Business Day) and on or prior to 5:00 P.M., New York City time (the
"Close of Business"), on the Expiration Date for such series. Subject to
Section 4(f), the term of any Warrant may be extended in the sole discretion of
the Company beyond its Expiration Date upon written notice to the Warrant Agent
and to the Holder of such Warrant (given in accordance with Section 19) at least
20 days prior to the date on which such Warrant was to have expired absent such
an extension to a date determined by the Company, which date shall thereupon
become the Expiration Date referred to above for such Warrant unless and until
another date is substituted in accordance with this Section. Subject to
paragraph (f) of this Section 4, such Warrant shall remain exercisable on any
Business Day on or after the relevant First Exercise Date and ending at the
Close of Business on its new Expiration Date. The Warrants shall terminate and
become void as of the Close of Business on the Expiration Date.
(b) Right to Exercise. Subject to the provisions of this Warrant
Agreement, including Section 4(d), each Warrant shall entitle the Holder thereof
to purchase from the Company (and shall obligate the Company to issue and sell
to such Holder) one fully paid and non-assessable share of Underlying Common
Stock at the Purchase Price (in each case, subject to adjustment and subject to
the Company's right to effect Cash Settlement or Net Share Settlement) upon
surrender to the Warrant Agent, at its office maintained for that purpose in
Boston, Massachusetts or New York, New York (the "Warrant Agent's Office") of
Notice of Exercise, substantially in the form set forth in Exhibit C (the
"Notice of Exercise"), duly completed and signed by the Holder thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney,
provided that any such Notice of Exercise delivered after 5:00 P.M., New York
City time, on a Business Day, or on a day that is not a Business Day, shall be
deemed to have been delivered at the opening of business on the next succeeding
Business Day. The date on which the Notice of Exercise with respect to any
Warrant is delivered is hereinafter referred to as the Exercise Date. Except as
expressly provided to the contrary in Section 6 hereof, no adjustments shall be
made for any cash dividends or other cash distributions on shares of Common
Stock issuable upon the exercise of a Warrant.
Any Warrant not exercised prior to its Expiration Date will
automatically be deemed to have been exercised for all purposes hereunder, and a
duly completed Notice of Exercise will be deemed to have been delivered to the
Company
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on such Expiration Date, if on such Expiration Date the Market Price of the
Underlying Common Stock exceeds the Purchase Price of such Warrant by $0.25 or
more.
(c) Payment of Purchase Price; Issuance of Shares of Underlying
Common Stock. Settlement for the purchase of Underlying Common Stock referred
to in Section 4(b) shall take place on the sixth Business Day following the
Exercise Date upon surrender to the Warrant Agent at the Warrant Agent's Office
of the Warrant Certificate evidencing such Warrant, with the form of election to
exercise on the reverse thereof duly completed and signed by the Holder thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney and upon payment of the Purchase Price of such Warrant. Upon such
surrender of a Warrant Certificate and payment of the Purchase Price of such
Warrant, the Company shall (subject to the other provisions of this Section 4)
cause to be issued and delivered to the Holder thereof, or upon the written
order of the Holder of such Warrant Certificate in such name or names as such
Holder may designate, a certificate for the shares (or other evidence of
ownership) of the Underlying Common Stock issuable upon the exercise of the
Warrant or Warrants evidenced by such Warrant Certificate. Such certificate (or
other evidence of ownership) shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become the holder of
record of such shares (or other property) as of the date of the surrender of
such Warrant Certificate and payment of the Purchase Price. Payment of the
Purchase Price may be made by Federal or other immediately available funds
payable to the order of the Company. All funds received upon the tender of
Warrants shall be deposited by the Warrant Agent for the account of the Company
in an account designated by the Company at such financial institution as is
designated in writing by the Company, unless otherwise instructed by the
Company.
The Warrants evidenced by a Warrant Certificate shall be exercisable,
at the election of the Holder thereof, either as an entirety or from time to
time for part only of the number of Warrants specified in the Warrant
Certificate. In the event that less than all of the Warrants evidenced by a
Warrant Certificate are exercised at any time prior to the applicable Expiration
Date, a new Warrant Certificate or Certificates of the same tenor shall be
issued for the remaining number of Warrants evidenced by the Warrant Certificate
so surrendered, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrant Certificate or Certificates
pursuant to the provisions of this Section 4, and the Company, whenever required
by the Warrant Agent, shall supply the Warrant Agent with Warrant Certificates
duly executed on behalf of the Company for such purpose.
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(d) Cash Settlement; Net Share Settlement. Notwithstanding
paragraphs (a), (b) and (c) of this Section 4, the Company shall at its sole
discretion have the right to elect (i) to settle any exercise of a Warrant (in
whole, but not in part) in cash (a "Cash Settlement") or (ii) to settle any
exercise of a Warrant by delivering the Net Share Settlement Number of shares of
Underlying Common Stock (a "Net Share Settlement"). Any such election shall be
effected by delivering notice to the exercising Holder in the form set forth in
Exhibit D, in the case of a Cash Settlement, or Exhibit E, in the case of a Net
Share Settlement, by facsimile transmission to the numbers set forth for such
purpose in the Notice of Exercise, confirmed telephonically, not later than
12:00 Noon, New York City time, on the third Business Day following the Exercise
Date.
In the case of any such election to effect a Cash Settlement of a Warrant,
on the fifteenth Business Day following the Exercise Date of such Warrant, the
Company shall deliver to the Warrant Agent Federal or other immediately
available funds in an aggregate amount equal to the Cash Settlement Value of
such Warrant, and the Warrant Agent shall deliver such funds to the exercising
Holder, or its designee, against surrender to the Warrant Agent at the Warrant
Agent's Office of the Warrant Certificate evidencing such Warrants, with the
form of election to exercise on the reverse thereof duly completed and signed by
the Holder thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney.
In the case of any such election to effect a Net Share Settlement of a
Warrant, on the eighteenth Business Day following the Exercise Date of such
Warrant the Company shall deliver to the Warrant Agent the Net Share Settlement
Number of fully paid and non-assessable shares of Underlying Common Stock, and
the Warrant Agent shall deliver such shares to the exercising Holder, or its
designee, against surrender to the Warrant Agent at the Warrant Agent's Office
of the Warrant Certificate evidencing such Warrants, with the form of election
to exercise on the reverse thereof duly completed and signed by the Holder
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney.
(e) Cancellation of Warrant Certificate. All Warrant Certificates
surrendered for exchange, substitution, transfer or exercise in whole or in part
shall be canceled by the Warrant Agent. If the Company shall purchase or
otherwise acquire Warrants, the Warrant Certificates representing such Warrants
shall thereupon be delivered to the Warrant Agent and be canceled by it. Such
canceled Warrant Certificates shall then be disposed of by such Warrant Agent in
a manner satisfactory to the Company.
(f) Black-Out. The Company may by notice to the Warrant Agent and
to the Holders of Warrants in the form set forth in Exhibit F (given in
accordance with
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Section 19), suspend the right to exercise all outstanding Warrants for a period
of up to 90 days. The Company may suspend the right to exercise Warrants of a
particular series on no more than one occasion. Notwithstanding Section 4(a), if
any such period of suspension includes or extends beyond the Expiration Date of
any Warrants, then the term of such Warrants automatically shall be extended to
the Business Day following the last day of such suspension, which Business Day
shall thereupon become the Expiration Date in respect of such Warrants.
Upon receipt of a Notice of Exercise, the Company may cancel such exercise
by delivering notices of suspension to the Warrant Agent and to the Holders of
the Warrants (and delivering a copy thereof to the exercising Holder, by
facsimile transmission to the number set forth for such purpose in the Notice of
Exercise), not later than 5:00 P.M., New York City time, on the third Business
Day after delivery to the Company of such Notice of Exercise, in which case such
Notice of Exercise shall be deemed never to have been given.
(g) Optional Reduction of Purchase Price. The Company shall have the
right, at any time or from time to time, voluntarily to reduce the then current
Purchase Price applicable to a series of Warrants to such amount (the "Reduced
Purchase Price") and for such period or periods of time, which may be through
the Close of Business on the Expiration Date of such series (the "Reduced
Purchase Price Period") as may be deemed appropriate by the Company. Notice of
any such Reduced Purchase Price and Reduced Purchase Price Period shall be given
to registered Holders of the relevant Warrants in the manner provided in Section
19. After the termination of the Reduced Purchase Price Period, the Purchase
Price of the relevant Warrants shall be such Purchase Price that would have been
in effect, as adjusted pursuant to the provisions of Section 6, had there been
no reduction in the Purchase Price pursuant to the provisions of this paragraph
(g). No reduction of the then current Purchase Price pursuant to the provisions
of this paragraph (g) shall be deemed for the purposes of Section 6 hereof to
alter or adjust the Purchase Price.
5 WARRANT REDEMPTION. The Company shall have the right to redeem the
Warrants. The procedure for redemption shall be as follows:
(a) The Company will notify the Holders in writing of its election to
redeem Warrants specifying the series, number, Expiration Dates and Purchase
Prices of the Warrants to be redeemed, and specifying a valuation date (the
"Valuation Date"). The "Redemption Price" of each Warrant to be redeemed shall
be equal to the theoretical value of the Warrant determined by a nationally
recognized firm of independent public accountants retained by the Company using
a conventional Black-Scholes or other commercially reasonable option valuation
model selected by such firm and reasonably acceptable to the Company, such
Redemption Price being
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determined on the basis of the following factors (the "Redemption Valuation
Factors"): (i) the number of days from but excluding the Valuation Date to and
including the relevant Expiration Date, (ii) the Current Market Price Per Common
Share as of the Valuation Date, (iii) the average of the 21-day volatility of
the Common Stock for each Business Day during the 90 days prior to the Valuation
Date, (iv) the estimated dividend yield of the Common Stock calculated using
dividend amounts payable on regular dividend payment dates during the period
from but excluding the Valuation Date to and including the relevant Expiration
Date and (v) a weighted LIBOR interest rate interpolated for the period from but
excluding the Valuation Date to and including the relevant Expiration Date.
If the Company believes that the Redemption Price so determined by
such firm of independent public accountants does not fairly reflect the value of
the Warrants to be redeemed, the Company may, in its sole discretion, select
three Major Dealers and the Redemption Price shall be the average of the
indicated mid-market premiums for the relevant Warrants determined on the basis
of the Redemption Valuation Factors quoted by the three Major Dealers so
selected as of the Valuation Date.
(b) Closing of the redemption by the Company of the Warrants shall
take place on the third Business Day following the later of (i) the Valuation
Date or (ii) the date the Redemption Price is determined under the second
paragraph of Section 5(a) above, by delivery of the Warrants being redeemed to
the Warrant Agent and simultaneous payment by the Company to the Holders of such
Warrants of the Redemption Price in Federal or other immediately available
funds.
6 ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES OF COMMON STOCK. The
number and kind of shares purchasable upon the exercise of Warrants and the
Purchase Price shall be subject to adjustment from time to time as follows:
(a) Stock Dividends, Stock-Splits, Combinations, etc. In case
the Company shall at any time after the date hereof (i) declare a dividend
or make a distribution on Common Stock payable in Common Stock, (ii)
subdivide or split the outstanding Common Stock, (iii) combine or
reclassify the outstanding Common Stock into a smaller number of shares, or
(iv) issue any shares of its capital stock in a reclassification of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), the Purchase Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such
subdivision, split, combination or reclassification shall be
proportionately adjusted so that, giving effect to paragraph (6)(i) hereof,
the exercise of any outstanding Warrant after such time shall entitle the
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Holder of such Warrant to receive the aggregate number of shares of Common
Stock or other securities of the Company (or shares of any security into
which such shares of Common Stock have been reclassified pursuant to clause
(iii) or (iv) above) which, if such Warrant had been exercised immediately
prior to such time, such Holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend, distribution,
subdivision, split, combination or reclassification. Such adjustment shall
be made successively whenever any event listed above shall occur. An
adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) Setting Record Date for Issuance of Certain Rights, Options
or Warrants. In case the Company shall fix a record date for the issuance
of rights, options or warrants to the holders of its Common Stock or other
securities entitling such holders to subscribe for or purchase for a period
expiring within 60 days of such record date shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per share of
Common Stock (or having a conversion price per share of Common Stock, if a
security convertible into shares of Common Stock) less than the Current
Market Price Per Common Share on such record date, the maximum number of
shares of Common Stock issuable upon exercise of such rights, options or
warrants (or conversion of such convertible securities) shall be deemed to
have been issued and outstanding as of such record date and the Purchase
Price to be in effect after the Company fixes such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such deemed issuance by a fraction, the numerator of which shall be the sum
of (x) the number of shares of Common Stock outstanding immediately prior
to the time of such deemed issuance multiplied by the Current Market Price
Per Common Share immediately prior to such deemed issuance and (y) the
aggregate consideration, if any, that would be received by the Company upon
issuance of all shares of Common Stock underlying such rights, options,
warrants or other securities, and the denominator of which shall be the
product of the aggregate number of shares of Common Stock that would be
outstanding immediately after such deemed issuance if such deemed issuance
had actually occurred and the Current Market Price Per Common Share
immediately prior to such deemed issuance. In case any portion of the
consideration to be received by the Company shall be in a form other than
cash, the fair market value of such noncash consideration shall be utilized
in the foregoing computation. Such fair market value shall be determined
in good faith by the Board of Directors of the Company, whose determination
shall be conclusive and shall be evidenced by a resolution filed with the
Warrant Agent. The holders of all then-outstanding Warrants shall be
notified
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promptly of any consideration other than cash to be received by the Company
and furnished with a description of the consideration and the fair market
value thereof, as determined by the Board of Directors. Such adjustment
shall be made successively whenever such record date is fixed; and in the
event that such rights, options or warrants are not so issued or expire
unexercised, or in the event of a change in the number of shares of Common
Stock to which the holders of such rights, options or warrants are entitled
(other than pursuant to adjustment provisions therein comparable to those
contained in this paragraph (6)), the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed, in the former event, or the Purchase Price
which would then be in effect if such holders had initially been entitled
to such changed number of shares of Common Stock, in the latter event.
(c) Certain Distributions. In case the Company shall fix a
record date for the making of a distribution to holders of Common Stock
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation, but not with
respect to the Company's existing rights plan) of evidences of its
indebtedness, assets or other property (other than cash dividends or
distributions and dividends payable in Common Stock or rights, options or
warrants referred to in, and for which an adjustment is made pursuant to,
paragraph (6)(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the Current Market Price Per Common Share on such record date,
less the fair market value (determined as set forth in paragraph (6)(b)
hereof) of the portion of the assets, other property or evidence of
indebtedness so to be distributed which is applicable to one share of
Common Stock, and the denominator of which shall be such Current Market
Price Per Common Share. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to
be the Purchase Price which would then be in effect if such record date had
not been fixed.
(d) Extraordinary Dividends. In case in any fiscal quarter (i)
the Company shall distribute to all holders of shares of Common Stock any
cash dividend or distribution or (ii) the Company or any of its
subsidiaries shall purchase Common Stock pursuant to a tender offer for a
purchase price per share greater than the Current Market Price Per Common
Share on the date of purchase, and during such fiscal quarter the sum of
(x) all such cash dividends or distributions, plus (y) the aggregate amount
by which the fair market value
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(determined as set forth in paragraph 6(b) hereof) of the consideration
paid in purchasing all such shares of Common Stock exceeds the Current
Market Price Per Common Share on the date of such purchase multiplied by
the number of shares of Common Stock so purchased, shall exceed 10%, on an
annualized basis, of the Current Market Price Per Common Share multiplied
by the number of shares of Common Stock outstanding at the earlier of the
record date for the latest such cash dividend or distribution or tender
offer or the date at which the Company shall have publicly announced such
dividend or distribution or tender offer, then the Purchase Price shall be
adjusted on the date of such dividend or distribution, or the termination
of such tender offer, to a price determined by multiplying the Purchase
Price in effect immediately prior to the earlier of such dates by a
fraction, of which the numerator shall be the Current Market Price Per
Common Share on the earlier of such dates less the fair market value
(determined as set forth in paragraph 6(b) hereof) of the portion of such
distribution or excess amount which is applicable to one share of Common
Stock and of which the denominator shall be such Current Market Price Per
Common Share on the earlier of such dates.
(e) Current Market Price Per Common Share. For the purpose of
any computation under Section 9 or paragraph (6)(b), (c) or (d) hereof, on
any determination date, the "Current Market Price Per Common Share" shall
mean the average (weighted by daily trading volume) of the Closing Prices
per share of the Underlying Common Stock for the 10 consecutive Business
Days immediately prior to such date.
(f) Deferral of Certain Adjustments. No adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent in such price; provided that
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any adjustments which by reason of this paragraph (6)(f) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this paragraph (f) shall be
made to the nearest one tenth of a cent or to the nearest hundredth of a
share, as the case may be.
(g) Other Adjustments. In the event that, at any time as a
result of the provisions of this Section 6, a Holder of a Warrant upon
subsequent exercise shall become entitled to receive any shares of capital
stock of the Company other than Common Stock, the number of such other
shares so receivable upon exercise of this Warrant shall thereafter be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained herein.
13
(h) Shares Receivable Upon Exercise. Upon each adjustment of
the Purchase Price as a result of the calculations made in paragraphs
(6)(a), (b), (c), (d) or (j) hereof, the number of shares for which any
Warrant is exercisable immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of shares of Common Stock obtained by (i) multiplying
the number of shares covered by such Warrant immediately prior to such
adjustment of the number of shares by the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) Consolidation, Merger, or Sale of Assets. Subject to the
provisions of Section 6(j) hereof, in case of any consolidation of the
Company with, or merger of the Company into, any other person, any merger
of another person into the Company (other than a merger which does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the person formed by
such consolidation or resulting from such merger or which acquires such
assets, as the case may be, then, as a condition of such consolidation,
merger, sale or transfer, the Company or such person, as the case may be,
shall forthwith make lawful and adequate provision whereby the holder of
each Warrant then outstanding shall have the right thereafter to exercise
such Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of
the number of shares of Common Stock for which such Warrant may have been
exercised immediately prior to such consolidation, merger, sale or
transfer, assuming (i) such holder of Common Stock is not a person with
which the Company consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was made, as the
case may be ("constituent person"), or an Affiliate of a constituent person
and (ii) in the case of a consolidation, merger, sale or transfer which
includes an election as to the consideration to be received by the holders,
such holder of Common Stock failed to exercise its rights of election, as
to the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer (provided that if the
kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of
Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a constituent person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this paragraph (i) the kind
and
14
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by 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). Adjustments for events subsequent to the
effective date of such a consolidation, merger and sale of assets shall be
as nearly equivalent as may be practicable to the adjustments provided for
in this Warrant Agreement. In any such event, effective provisions shall be
made in the certificate or articles of incorporation of the resulting or
surviving corporation, in any contract of sale, conveyance, lease or
transfer, or otherwise so that the provisions set forth herein for the
protection of the rights of the Holders shall thereafter continue to be
applicable; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon exercise, such shares of stock,
other securities, cash and property. The provisions of this paragraph (i)
shall similarly apply to successive consolidations, mergers, sales, leases
or transfers.
(j) Qualified Tender Offers; Cash-Out Tender Offers and Mergers.
(i) Subject to the provisions of paragraph (ii) of this Section 6(j), in
case of any Qualified Tender Offer (as defined below) made by a person
other than the Company or any subsidiary of the Company and in which, as of
the Expiration Time (as defined below), the board of directors of the
Company is not recommending rejection of the offer, the Purchase Price
shall be reduced so that the same shall equal the price determined by
multiplying the Purchase Price in effect immediately prior to the
Expiration Time by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the Market Price of the Common
Stock on the trading day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders based on
the acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or exchanged and not
withdrawn as of the Expiration Time (the share 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) at the Expiration Time and the Market Price of the Common
Stock on the trading day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of business
on the Business Day following the Expiration Time. In the event that such
person is obligated to purchase shares pursuant to any such Qualified
Tender Offer, but such person is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Purchase Price shall again be adjusted to be the Purchase Price
15
which would then be in effect if such Qualified Tender Offer had not been
made. Notwithstanding the foregoing, the adjustment described in this
paragraph (j) shall not be made if, as of the Expiration Time, the offering
documents with respect to such Qualified Tender Offer disclose a plan or
intention to cause the Company to engage in any transaction described in
Section 6(j) hereof.
A "Qualified Tender Offer" means any tender offer or exchange
offer for an amount which increases the offeror's ownership of Common Stock
to more than 25% of the Common Stock outstanding and which involves the
payment by such person of consideration per share of Common Stock having a
fair market value (as determined as set forth in paragraph 6(b) hereof) at
the last time (the "Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it shall have been amended)
that exceeds the Closing Price of the Common Stock on the trading day next
succeeding the Expiration Time.
(ii) In case (A) of a cash tender offer for substantially all of
the outstanding Common Stock or (B) of any consolidation of the Company
with, or merger of the Company into, any other person in a transaction in
which the Common Stock is exchanged for cash or cash equivalents, then as
of the closing date of such tender offer or the effective date of such
consolidation or merger, each such Warrant shall only entitle the holder
thereof to receive, within 3 Business Days of surrender to the Company or
to the Warrant Agent, at the Warrant Agent's Office, of the Warrant
Certificate evidencing such Warrant, a cash payment from the Company equal
to the Cash-Out Value (as defined below). The "Cash-Out Value" means the
theoretical value of the Warrant determined by a nationally recognized firm
of independent public accountants retained by the Company using a
conventional Black-Scholes or other commercially reasonable option
valuation model selected by such firm and reasonably acceptable to the
Company, such Cash-Out Value being determined on the basis of the following
factors (the "Cash-Out Valuation Factors"): (i) the number of days from
but excluding the date of the first public announcement of a firm intention
to make such an offer or to so merge or consolidate (the "Announcement
Date") to and including the applicable Expiration Date, (ii) the Current
Market Price Per Common Share as of the Announcement Date, (iii) the
average of the 21-day volatility of the Common Stock for each Business Day
during the 90 days prior to the Announcement Date, (iv) the estimated
dividend yield of the Common Stock calculated using dividend amounts
payable on regular dividend payment dates during the period from but
excluding the Announcement Date to and including the Expiration Date and
(v) a weighted LIBOR interest rate interpolated for the
16
period from but excluding the Announcement Date to and including the
Expiration Date.
If the Company believes that the Cash-Out Value so determined by
such firm of independent public accountants does not fairly reflect the
value of the Warrants subject to such tender offer, the Company may, in its
sole discretion, select three Major Dealers and the Cash-Out Value shall be
the average of the indicated mid-market premiums for such Warrants
determined on the basis of the Cash-Out Valuation Factors quoted by the
three Major Dealers so selected as of the Announcement Date.
Upon receipt by the Holder of such cash payment in respect of a
Warrant, such Warrant shall expire and be of no further effect.
7 NOTICE OF ADJUSTMENT. Whenever the number of shares of Common Stock or
other stock or property issuable upon the exercise of each Warrant or the
Purchase Price is adjusted, as herein provided, the Company shall cause the
Warrant Agent promptly to mail by first class mail, postage prepaid, to each
Holder notice of such adjustment or adjustments and shall deliver to the Warrant
Agent a certificate of a firm of independent certified public accountants
selected by the board of directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of shares of
Common Stock or other stock or property issuable upon the exercise of each
Warrant or the Purchase Price after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time to any Holder desiring an inspection thereof during reasonable
business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any Holders to determine whether any facts exist that may
require any adjustment of the number of shares of Common Stock or other stock or
property issuable on exercise of the Warrants or the Purchase Price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed in making such adjustment or the validity or
value (of the kind or amount) of any shares of Common Stock or other stock or
property which may be issuable on exercise of the Warrants. The Warrant Agent
shall not be responsible for any failure of the Company to make any cash payment
or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property upon the exercise of any Warrant.
8 STATEMENT ON WARRANTS. Irrespective of any adjustment in the number or
kind of shares issuable upon the exercise of the Warrants or the Purchase Price,
Warrants theretofore or thereafter issued may continue to express the same
number
17
and kind of shares as are stated in the Warrants initially issuable pursuant to
this Warrant Agreement.
9 FRACTIONAL INTEREST. Notwithstanding any adjustment pursuant to
Section 6 hereof in the number of shares of Underlying Common Stock, the Company
shall not be required to issue fractional shares of Underlying Common Stock on
the exercise of Warrants. If more than one Warrant shall be presented for
exercise in full at the same time by the same Holder, the number of full shares
of Underlying Common Stock which shall be issuable upon such exercise shall be
computed on the basis of the aggregate number of shares of Underlying Common
Stock acquirable on exercise of the Warrants so presented. If any fraction of a
share of Underlying Common Stock would, except for the provisions of this
Section 9, be issuable on the exercise of any Warrant (or specified portion
thereof), the Company shall pay an amount in cash calculated by it to be equal
to (A) in the case of settlement of such Warrant pursuant to Section 4(c), the
Current Market Price Per Common Share on the date of such exercise or (B) in the
case of a Net Share Settlement of such Warrant pursuant to Section 4(d), the
Market Value of the Underlying Common Stock for the period commencing on the
fourth and ending on the thirteenth Business Day immediately following the date
on which such Warrant was exercised, in each case multiplied by such fraction
computed to the nearest whole cent. The Holders, by their acceptance of the
Warrant Certificates, expressly waive any and all rights to receive any fraction
of a share of Common Stock or a stock certificate representing a fraction of a
share of Underlying Common Stock.
10 WARRANT TRANSFER BOOKS. The Warrant Certificates shall be issued
in registered form only. The Company shall cause to be kept at the office of
the Warrant Agent a register in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Warrant
Certificates and of transfers or exchanges of Warrant Certificates by the
Warrant Agent as herein provided.
At the option of the Holder thereof, Warrant Certificates may be
exchanged at such office upon payment of the charges hereinafter provided.
Whenever any Warrant Certificates are so surrendered for exchange, the Company
shall execute, and the Warrant Agent shall countersign and deliver, the Warrant
Certificates that the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
18
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be required of a Holder for any registration
of transfer or exchange of Warrant Certificates. 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 registration of transfer or exchange of
Warrant Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable. The holder of any Warrant Certificate duly endorsed in blank may be
treated by the Company, the Warrant Agent and all other persons dealing
therewith as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented thereby, or to the transfer thereof
on the register of the Company maintained by the Warrant Agent, any notice to
the contrary notwithstanding; but until such transfer on such register, the
Company and the Warrant Agent may treat the Holder thereof as the owner for all
purposes.
11 TRANSFER RESTRICTIONS. (a) Neither the Warrants nor any of the
Underlying Common Stock, nor any interest in either, may be sold, assigned,
pledged, hypothecated, encumbered or in any other manner transferred or disposed
of, in whole or in part, except in compliance with applicable United States
federal and state securities laws and the terms and conditions hereof and
thereof.
(b) Until the earlier of the sale of the Underlying Common Stock
pursuant to a registration statement which has been declared effective under the
Securities Act and the Resale Restriction Termination Date, any certificate
evidencing Underlying Common Stock (and all securities issued in exchange or
substitution therefor) shall bear a legend set forth in Exhibit A, and shall be
subject to the restrictions contained therein, unless otherwise agreed by the
Company (with written notice thereof to the registrar for the Common Stock).
(c) Until the Expiration Date of each Warrant or any earlier exercise
thereof, each Warrant shall be subject to the restrictions on transfer contained
in the legend set forth in Exhibit B.
12 WARRANT HOLDERS. (a) No Voting Rights. Prior to the exercise of
the Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to
any rights of a stockholder of the Company, including, without limitation, the
right to receive dividends or subscription rights, the right to vote, to
consent, to exercise any
19
preemptive right, to receive any notice of meetings of stockholders for the
election of directors of the Company or any other matter or to receive any
notice of any proceedings of the Company, except as may be specifically provided
for herein.
(b) Right of Action. All rights of action in respect of this Warrant
Agreement are vested in the Holders of the Warrants, and any Holder of any
Warrant, without the consent of the Warrant Agent or the Holder of any other
Warrant, may, on such Holder's own behalf and for such Holder's own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such Holder's
rights hereunder, including the right to exercise, exchange or surrender for
purchase such Holder's Warrants in the manner provided in this Warrant
Agreement.
13 WARRANT AGENT. (a) Nature of Duties and Responsibilities Assumed. The
Company hereby appoints BankBoston, N.A. as Warrant Agent of the Company in
respect of the Warrants upon the terms and subject to the conditions set forth
herein; and BankBoston, N.A. hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in this
Agreement and such further powers and authority to act on behalf of the Company
as the Company may hereafter grant to or confer upon it with its consent. All of
the terms and provisions with respect to such powers and authority contained in
any Warrant Certificate are subject to and governed by the terms and provisions
hereof.
(b) 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 Warrants shall be
subject:
(i) 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 its reasonable
out-of-pocket expenses (including attorneys' fees and expenses) incurred by
the Warrant Agent without gross negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered by it
hereunder. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense (including
reasonable attorneys' fees and expenses) incurred without gross negligence,
bad faith, willful misconduct or breach of this Agreement on the part of
the Warrant Agent, arising out of or in connection with its acting as such
Warrant Agent hereunder, as well as the reasonable costs and expenses of
defending against any claim of liability in the premises. The obligations
of the Company under this Section 13(b)(i) shall survive the termination of
this Agreement.
20
(ii) In acting under this Agreement, 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 Warrants.
(iii) The Warrant Agent may consult with counsel satisfactory to
it (including counsel to the Company), and the opinion 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 opinion of such counsel.
(iv) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any 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.
(v) The Warrant Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(vi) The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, any
Warrants or other obligations of the Company, with the same rights that it
or they would have if it were not the Warrant Agent hereunder and, to the
extent permitted by applicable law, it or they may engage or be interested
in any financial or other transaction with the Company and may act on
behalf of, or as depository, trustee or agent for, any committee or body of
owners or Holders of Warrants or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder.
(vii) 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 nor shall it be obligated to segregate such
monies from other monies held by it, except as required by law. The Warrant
Agent shall not be responsible for advancing funds on behalf of the
Company.
(viii) The Warrant Agent shall not be under any
responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due
authorization, execution and delivery hereof by the Warrant Agent) or with
respect to the validity or execution of the Warrant Certificates (except
its countersignature thereof).
21
(ix) The recitals contained herein and in the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon)
shall be taken as the statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of the same.
(x) The Warrant Agent shall be obligated to perform such
duties as are herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment of
which is not, in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for the
application by the Company of any proceeds. 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 in this Agreement or
in any Warrant Certificate or in the case of the receipt of any written
demand from a Holder of a Warrant 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 19(a) hereof, to make any
demand upon the Company.
(c) Resignation and Appointment of Successor. The Company agrees, for
the benefit of the Holders from time to time of the Warrants, that there shall
at all times be a Warrant Agent hereunder until all the Warrants are no longer
outstanding.
The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective, subject to the
appointment of a successor Warrant Agent and acceptance of such appointment by
such successor Warrant Agent as hereinafter provided. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a banking institution organized under
the laws of the United States of America or one of the states thereof, have a
combined capital and surplus of at least $100,000,000 (as set forth in its most
recent reports of condition published pursuant to law or to the requirements of
any United States federal or state regulatory or supervisory authority) and
having an office in the Borough of Manhattan, The City of New York) and the
acceptance of such appointment by such successor Warrant Agent. In the event a
successor Warrant Agent has not been appointed and accepted its duties within 90
days of the Warrant Agent's notice of resignation, the Warrant Agent may apply
to any
22
court of competent jurisdiction for the designation of a successor Warrant
Agent. The obligation of the Company under Section 13(b)(i) hereof shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
In case at any time the Warrant Agent shall give notice of its intent
to resign, or shall be removed, or shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, 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 any 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
promptly 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.
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
(including, without limitation, the Warrant Register), as Warrant Agent
hereunder.
14 RESERVATION OF COMMON STOCK FOR ISSUANCE ON EXERCISE OF WARRANTS;
LISTING. The Company covenants that it will at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
Common Stock, solely for the purpose of issuance upon exercise of Warrants as
herein provided, the full number of shares of Common Stock as shall then be
issuable upon the exercise of all outstanding Warrants.
The Company covenants that all shares of Common Stock which shall be so
issuable shall, upon such issuance, be duly and validly issued and fully paid
and nonassessable, and that upon issuance such shares shall be accepted for
quotation on the Nasdaq National Market or listed on each national securities
exchange, if any, on which any other shares of outstanding Common Stock of the
Company are then listed.
23
15 MONEY AND OTHER PROPERTY DEPOSITED WITH THE WARRANT AGENT. Any moneys,
securities or other property which at any time shall be deposited by the Company
or on its behalf with the Warrant Agent pursuant to this Agreement shall be and
are hereby assigned, transferred and set over to the Warrant Agent in trust for
the purpose for which such moneys, securities or other property shall have been
deposited; but such moneys, securities or other property need not be segregated
from other funds, securities or other property except to the extent required by
law. The Warrant Agent shall distribute any money deposited with it for payment
and distribution to the Holders by mailing by first-class mail a check in such
amount as is appropriate, to each such Holder at the address shown on the
Warrant register maintained pursuant to Section 10, or as it may be otherwise
directed in writing by such Holder, upon surrender of such Holder's Warrants.
Any money or other property deposited with the Warrant Agent for payment and
distribution to the Holders that remains unclaimed for two years, less one day,
after the date the money was deposited with the Warrant Agent shall be paid to
the Company upon its request therefor.
16 PAYMENT OF TAXES. The Company will pay any documentary stamp taxes
attributable to the initial issuance of the Warrants or shares of Underlying
Common Stock upon the exercise of Warrants; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer of any Warrant Certificates or the issuance of any certificates for
shares of Underlying Common Stock in a name other than that of the Holder of a
Warrant Certificate surrendered upon the exercise of a Warrant.
17 SURRENDER OF CERTIFICATES. Any Warrant Certificate surrendered for
exercise or purchased or otherwise acquired by the Company 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 promptly be canceled by
such Warrant Agent and shall not be reissued by the Company. The Warrant Agent
shall destroy such canceled Warrant Certificates and deliver its certificate of
destruction to the Company unless the Company shall otherwise direct.
18 MUTILATED, DESTROYED, LOST AND STOLEN WARRANT CERTIFICATES. If (a) any
mutilated Warrant Certificate is surrendered to the Warrant Agent or (b) the
Company and the Warrant Agent receive evidence to their satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered to
the Company and the Warrant Agent such security or indemnity as may be
reasonably required by them to save each 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, the Company shall execute and upon its
written request the Warrant Agent shall countersign and deliver, in exchange for
any such mutilated Warrant Certificate or in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Warrant
24
Certificate of like tenor and for a like aggregate number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section 18, 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 other expenses
(including the reasonable fees and expenses of the Warrant Agent and of counsel
to the Company) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 18 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original 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 the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder.
The provisions of this Section 18 are exclusive and shall preclude (to the
extent lawful) all other rights or remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Warrant Certificates.
19 NOTICES. (a) Except as otherwise provided in this Agreement, any notice,
demand or delivery authorized by this Warrant Agreement shall be sufficiently
given or made when mailed if sent by first-class mail, postage prepaid,
addressed to any Holder of a Warrant at such Holder's address shown on the
register maintained by the Warrant Agent pursuant to Section 9 and to the
parties as follows:
If to the Company:
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
If to the Warrant Agent:
BankBoston, N.A.
c/o Boston Equiserve Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Reorganization Department
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
25
(b) Any notice required to be given by the Company to the Holders
shall be made by mailing by registered mail, return receipt requested, to the
Holders at their respective addresses shown on the register of the Company
maintained by the Warrant Agent. The Company hereby irrevocably authorizes the
Warrant Agent, in the name and at the expense of the Company, to mail any such
notice upon receipt thereof from the Company. Any notice that is mailed in the
manner herein provided shall be presumed to have been duly given when mailed.
20 PERSONS BENEFITTING. This Warrant Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators, and the
Holders of the Warrants. Nothing in this Warrant Agreement is intended or shall
be construed to confer upon any person, other than the Company, the Warrant
Agent and the Holders of the Warrants, any right, remedy or claim under or by
reason of this Warrant Agreement or any part hereof.
21 COUNTERPARTS. This Warrant Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
22 AMENDMENTS. (a) The Company may, without the consent of the Holders of
the Warrants, by supplemental agreement or otherwise, make any changes or
corrections in this Warrant Agreement that it shall have been advised by counsel
(a) are required to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
(b) add to the covenants and agreements of the Company for the benefit of the
Holders, or surrender any rights or power reserved to or conferred upon the
Company in this Warrant Agreement or (c) supplement Schedule I hereto to
identify additional series of Warrants issued hereunder; provided that, in the
case of (a) or (b), such changes or corrections shall not adversely affect the
interests of the Holders in any material respect. The Warrant Agent shall at the
request of the Company and without need of independent inquiry as to whether
such supplemental agreement is permitted by the terms of this Section 22 join
with the Company in the execution and delivery of any such supplemental
agreements unless it affects the Warrant Agent's own rights, duties or
immunities hereunder in which case such party may, but shall not be required to,
join in such execution and delivery.
(b) The Company and the Warrant Agent may modify or amend this Agreement
(by means of an agreement supplemental hereto or otherwise) with the consent of
Holders holding not less than a majority in number of the then outstanding
Warrants for any purpose; provided, however, that no such modification or
amendment that changes the Purchase Price of the Warrants, shortens the period
of
26
time during which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Holders or reduces the percentage
of the number of outstanding Warrants the consent of whose Holders is required
for modification or amendment of this Agreement, may be made without the consent
of each Holder affected thereby.
23 TERMINATION. This Warrant Agreement shall terminate and be of no
further force and effect on the Final Expiration Date.
24 APPLICABLE LAW. This Warrant Agreement and each Warrant issued
hereunder and all rights arising hereunder shall be governed by the law of the
State of California applicable to contracts and instruments executed and to be
performed entirely in such State.
25 HEADINGS. The descriptive headings of the several Sections of this
Warrant Agreement are inserted for convenience and shall not control or affect
the meaning or construction of any of the provisions hereof.
27
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed, as of the day and year first above written.
ORACLE CORPORATION
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
BANKBOSTON, N.A.
as Warrant Agent
By:/s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Administration Manager
28
SCHEDULE I
SERIES AND TERMS OF EQUITY CALL WARRANTS
TO BE ISSUED UNDER WARRANT AGREEMENT
------ -------- ------------- --------------- --------------
Series Quantity First Expiration Date Purchase Price
Exercise Date
A 3,000,000 April 17, 2000 May 15, 2000 $77.00
29
EXHIBIT A
[FORM OF LEGEND FOR UNDERLYING COMMON STOCK]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION THEREIN OR HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE"), ON WHICH THE SECURITIES
EVIDENCED HEREBY MAY BE SOLD WITHOUT REGISTRATION PURSUANT TO RULE 144(k) UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY SUCCESSOR
TO SUCH RULE, ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR," WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENT OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND/OR THE REGISTRAR'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (C), (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) PURSUANT TO EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE REGISTRAR. UNTIL THE EXPIRATION OF THE RESALE RESTRICTION TERMINATION
DATE, ANY PERSON ACQUIRING THIS SECURITY PURSUANT TO CLAUSE (C) AGREES THAT ANY
OFFER, SALE OR OTHER TRANSFER TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF
A U.S. PERSON SHALL BE MADE BY IT ONLY PURSUANT TO CLAUSES (A), (B) OR (E).
A-1
EXHIBIT B
[FORM OF FACE OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION THEREIN OR HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY ONLY PURSUANT TO (A) REGISTRATION PURSUANT TO THE
SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT, IN THE CASE OF (B), TO THE COMPANY'S AND THE
WARRANT AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND, IN THE CASE OF EITHER (A) OR (B) TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT. THE
HOLDER OF EACH SECURITY BY ITS ACCEPTANCE HEREOF FURTHER AGREES THAT IT SHALL
OFFER, SELL OR OTHERWISE TRANSFER THE WARRANTS REPRESENTED BY THIS CERTIFICATE
ONLY TO QUALIFIED INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) AND IN TRANSACTIONS INVOLVING THE SALE OF NO LESS THAN 1 MILLION
WARRANTS SUBJECT TO THE COMPANY'S AND THE WARRANT AGENT'S RIGHT TO REQUIRE THE
DELIVERY OF CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
B-1
No. W-1 Certificate for 3,000,000 Warrants
SERIES A EQUITY CALL WARRANTS
TO ACQUIRE COMMON STOCK OF
ORACLE CORPORATION
This Warrant Certificate certifies that Xxxxxx Xxxxxxx & Co. International
Limited, or registered assigns, is the registered holder of 3,000,000 Warrants
(the "Warrants") to purchase Common Stock, par value $0.01 per share (the
"Common Stock"), of Oracle Corporation, a Delaware corporation (the "Company").
Each Warrant entitles the holder, subject to the terms and conditions set forth
herein and in the Warrant Agreement, to purchase from the Company one fully paid
and non-assessable share of Common Stock of the Company at the purchase price
per share of Common Stock (the "Purchase Price"), which price shall initially be
$77.00 per share, subject to adjustment from time to time in accordance with the
Warrant Agreement. Settlement for such purchase shall take place on the sixth
Business Day after delivery of such Notice of Exercise, upon surrender to the
Warrant Agent, at its office maintained for that purpose in Boston,
Massachusetts or New York, New York, of this Warrant Certificate with the form
of election to purchase on the reverse hereof duly completed and signed by the
registered holder or holders hereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, and upon payment of the
Purchase Price, but only subject to the conditions set forth herein and in the
Warrant Agreement. Payment of the Purchase Price may be made by Federal or
other immediately available funds to the Company.
The Company shall have the right to settle any exercise of a Warrant (i) in
cash, in which case on the fifteenth Business Day after the Exercise Date the
Company shall deliver to the exercising Holder, against surrender to the Warrant
Agent at its office maintained for that purpose in Boston, Massachusetts of the
Warrant Certificate evidencing the exercised Warrants, Federal or other
immediately available funds payable to the order of such Holder in an amount
equal to the Cash Settlement Value (as defined in the Warrant Agreement); or
(ii) by delivering the Net Share Settlement Number (as defined in the Warrant
Agreement) of shares of Underlying Common Stock, in which case on the eighteenth
Business Day after the Exercise Date the Company shall deliver to the exercising
Holder, against surrender to the Warrant Agent at its office maintained for that
purpose in Boston, Massachusetts of the Warrant Certificate evidencing the
exercised Warrants, such number of fully paid and non-assessable shares.
No Warrant may be exercised or exchanged after 5:00 P.M., New York City
time, on the Expiration Date. All Warrants evidenced hereby shall thereafter be
void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
B-1
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
IN WITNESS WHEREOF, Oracle Corporation has caused this instrument to be
duly executed.
ORACLE CORPORATION
By:____________________________
Name:
Title:
(SEAL)
Attest:_________________________________
Secretary
DATED:
Countersigned as of the date above written:
BANKBOSTON, N.A.,
as Warrant Agent
By:______________________________
Authorized Officer
B-2
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
This Warrant Certificate is issued under and in accordance with a Warrant
Agreement dated as of May 12, 1997 (the "Warrant Agreement"), between the
Company and BankBoston, N.A., 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 not defined herein 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 to BankBoston,
N.A., c/o Boston Esquiserve Limited Partnership, 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Reorganization Department.
The Warrants evidenced by this Warrant Certificate shall be exercisable, at
the election of the Holder hereof, either as an entirety or from time to time
for part only of the number of Warrants specified herein. In the event that less
than all of the Warrants evidenced by this Warrant Certificate are exercised at
any time prior to the Expiration Date, a new Warrant Certificate or Certificates
of the same tenor shall be issued for the remaining number of Warrants evidenced
by this Warrant Certificate.
The Company may, by notice to the Warrant Agent and to the Holder hereof,
suspend the right to exercise Warrants evidenced hereby for a period of up to 90
days. The Company may suspend the right to exercise these Warrants on no more
than one occasion. If any such period of suspension (as it may be extended by
successive further notices) includes or extends beyond the Expiration Date, then
the term of these Warrants shall be automatically extended to the Business Day
following the last day of such suspension, which Business Day shall thereupon
become the Expiration Date.
Upon receipt of a Notice of Exercise, the Company may cancel such exercise
by delivering notices of suspension to the Warrant Agent and to the Holders of
the Warrants (and delivering a copy thereof to the exercising Holder, by
facsimile transmission to the number set forth for such purpose in the Notice of
Exercise), not later than 5:00 P.M., New York City time, on the third Business
Day after delivery to the Company of such Notice of Exercise, in which case such
Notice of Exercise shall be deemed never to have been given.
At the option of the Holder hereof, Warrant Certificates may be exchanged
at such office upon payment of the charges provided in the Warrant Agreement.
Whenever any Warrant Certificates are so surrendered for exchange, the Company
shall execute, and the Warrant Agent shall countersign and deliver, the Warrant
Certificates that the Holder making the exchange is entitled to receive. All
Warrant Certificates issued upon any registration of transfer or exchange of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under the Warrant
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or
B-4
exchange. Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be required of a Holder for any registration of
transfer or exchange of Warrant Certificates. 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 registration of transfer or exchange of Warrant
Certificates.
The Company and the Warrant Agent may deem and treat the registered Holder
of this Warrant Certificate as the absolute owner hereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise hereof or any distribution to the Holder hereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
The Warrant Agreement also provides that upon the occurrence of certain
events, the Purchase Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If such Purchase Price is adjusted, the Warrant
Agreement provides that in certain instances, the number of shares of Common
Stock of the Company purchasable upon the exercise of each Warrant shall be
adjusted. In the case of certain extraordinary transactions, the Warrants may
become exercisable for the consideration received by Holders of Common Stock
therein, or in certain cases, may become exchangeable solely for a cash payment,
all as provided in the Warrant Agreement.
This Warrant Certificate and the Warrant Agreement are subject to amendment
as provided in the Warrant Agreement.
B-4
[FORM OF ELECTION TO EXERCISE]
[TO BE EXECUTED UPON PURCHASE OF WARRANT]
The undersigned hereby irrevocably exercises ofSeries Equity
Call Warrants for the acquisition of [ ] share(s) of Underlying Common
Stock (as defined herein), represented by this Warrant Certificate, on the terms
and conditions specified in this Warrant Certificate and the Warrant Agreement
herein referred to, surrenders this Warrant Certificate and all right, title and
interest therein Oracle Corporation (the "Company") and has tendered payment for
such shares in the amount of $________, all in accordance with the terms hereof,
directs that the shares of Common Stock deliverable upon the exercise of such
Warrants be registered or placed in the name and at the address specified below
and delivered thereto.
Dated: ______________________, _____
/1/
---------------------------------------
(Signature of Owner)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
---------------------------------------
Facsimile Number/2/
Signature Guaranteed by:
---------------------------------------
--------------------------
/1/ The signature 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 by a national
bank or trust company or by a member firm of any national securities exchange
or by another eligible guarantor institution as defined in Rule 17Ad-15 under
the Securities Exchange Act of 1934.
/2/ A facsimile number must be provided for the purpose of receiving any
notice of the Company's election, if any, to settle this exercise of
Warrant(s) in cash or of suspension of the holder's right to exercise this
Warrant.
B-5
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned Holder of this Warrant Certificate
hereby sells, assigns, and transfers unto the Assignee(s) named below (including
the undersigned with respect to any Warrants constituting a part of the Warrants
evidenced by this Warrant Certificate not being assigned hereby) all of the
right of the undersigned under this Warrant Certificate, with respect to the
number of Warrants set forth below:
=========================================================
Social Security
or other
identifying
number of
Names of assignee(s) Number of
Assignee(s) Address --------------- Warrants
----------- ------- ---------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
=========================================================
and does hereby irrevocably constitute and appoint __________, the undersigned's
attorney, to make such transfer on the register maintained by the Warrant Agent
for that purpose, with full power of substitution in the premises.
Dated: ________________, ____
---------------------------------------
(Signature of Owner)/3/
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
---------------------------------------
Signature Guaranteed by:
---------------------------------------
-----------------------
/3/ The signature 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 by a national
bank or trust company or by a member firm of any national securities exchange
or by another eligible guarantor institution as defined in Rule 17Ad-15 under
the Securities Exchange Act of 1934.
B-6
EXHIBIT C
FORM OF NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the right,
represented by Warrant Certificate No[s]. W-____________ to purchase
_________________ shares of Common Stock of Oracle Corporation and undertakes to
surrender such Warrant Certificate[s] to the Warrant Agent, at its office
maintained for that purpose in ________, ________, with the form of election to
exercise on the reverse thereof duly completed and signed, together with payment
of the applicable Purchase Price, on the day six Business Days after the date
hereof. The undersigned requests that a certificate for such shares be
registered in the name of __________________ whose address is________________
____________________________________ and that such Certificate (or any payment
in lieu thereof) be delivered to ____________________ whose address
is_____________________.
Notice of the Company's election, if any, to (i) settle this exercise of
Warrants in cash or by net share settlement or (ii) suspend the exercise of
Warrants should be addressed to the attention of__________________________
___________________________________, sent by facsimile transmission to the
following number: __________________________ (confirmation telephone number:
_____________________).
Capitalized terms not otherwise defined herein shall have the meanings
specified in the Warrant Agreement dated May __, 1997 between Oracle Corporation
and the BankBoston, N.A., as Warrant Agent.
Dated:_____________________ _______________________________
(Signature must conform in all respects to
name of holder as specified on the face of the
Warrant Certificate.)
C-1
EXHIBIT D
[FORM OF NOTICE OF CASH SETTLEMENT]
Oracle Corporation hereby irrevocably elects to settle in cash the exercise
of Warrant No[s]. W-_______________ to purchase ____________ shares of its
Common Stock.
Capitalized terms not otherwise defined herein shall have the meanings
specified in the Warrant Agreement dated May __, 1997 between Oracle Corporation
and the BankBoston, N.A., as Warrant Agent.
Dated:
------------------------------
ORACLE CORPORATION
By: Name:
--------------------------------------
Title
D-1
EXHIBIT E
[FORM OF NOTICE OF NET SHARE SETTLEMENT]
Oracle Corporation (the "Company") hereby irrevocably elects to settle by
delivery of the Net Share Settlement Number of shares of its Common Stock the
exercise of Warrant No[s] W-_______________ to purchase ___________ shares of
its Common Stock.
Capitalized terms not defined herein have the meaning given such terms in
the Warrant Agreement dated May __, 1997, between the Company and the
BankBoston, N.A., as Warrant Agent.
ORACLE CORPORATION
By:
----------------------------------
Name:
Title:
E-1
EXHIBIT F
[NOTICE OF SUSPENSION OF EXERCISE]
[Warrant Holder Name]
[Warrant Holder Address]
In accordance with Section 4(f) of the Warrant Agreement (the "Warrant
Agreement") dated as of May ___, 1997 between Oracle Corporation (the "Company")
and _______________, as Warrant Agent, relating to the Company's Equity Call
Warrants (the"Warrants"), the Company hereby gives notice that your right to
exercise your Warrants has been suspended until ______.
Therefore, the Notice of Exercise delivered by you has been canceled, has
been deemed to have never been delivered and is returned herewith to you.
_____________________________,
as Warrant Agent
By:__________________________________
Authorized Signature
F-1
