EXHIBIT 4.4
ALEXANDER & ALEXANDER SERVICES INC.
Form of Warrant Agreement
[for warrants sold alone]
THIS WARRANT AGREEMENT is dated as of ___________ between Alexander & Alexander
Services Inc., a Maryland corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to) and __________, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell warrant certificates evidencing one or
more warrants (the "Warrants" or individually a "Warrant") representing the
right to purchase [title of Equity Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company
in connection with the issuance, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance of Warrants and Execution and
Delivery of Warrant Certificates.
Section 1.1. Issuance of Warrants. Each Warrant Certificate shall evidence one
or more Warrants. Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase Warrant
Securities.
Section 1.2. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
________, 19___, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its President,
one of its Vice Presidents, its Treasurer or one of its Assistant Treasurers
under its corporate seal and attested by its Secretary or one of its Assistant
Secretaries. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
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In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
[If bearer Warrants -- The term "holder" or "holder of a Warrant Certificate" as
used herein shall mean the bearer of such Warrant Certificate.]
[If registered Warrants -- The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose.]
Section 1.3. Issuance of Warrant Certificates. Warrant Certificates evidencing
the right to purchase Warrant Securities (except as provided in Sections 2.3(c),
3.2 and 4.1) may be executed by the Company and delivered to the Warrant Agent
upon the execution of this Warrant Agreement or from time to time thereafter.
The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to ____________ Warrant Securities and
shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates [If registered Warrants -- or in connection with their
transfer], as hereinafter provided or as provided in Section 2.3(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants.
Section 2.1. Warrant Price. On __________, 19___, the exercise price of each
Warrant is ________ (currency). During the period from _________, 19__, through
and including _________, 19__, the exercise price of each Warrant will be
__________ (currency). On ___________, 19__, the exercise price of each Warrant
will be _________ (currecy). Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price." The Warrant Price and the
number and kind of shares of capital stock for which a Warrant may be exercised
is subject to adjustment from time to time as set forth in Article V hereof.
Section 2.2. Duration of Warrants. Each Warrant may be exercised in whole at any
time, as specified herein, on or after [the date thereof] [_________, 19__,] and
at or before 5 p.m. New York time on ____________, 19__, (the "Expiration
Date"). Each Warrant not exercised at or before 5 p.m. New York time on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
Section 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole number of
Warrants may be exercised by providing certain information set forth
on the reverse side of the Warrant Certificate and by paying in
full, [in lawful money of the United States of America] [in cash or
by certified check or official bank check or by bank wire transfer,
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in each case] [by bank wire transfer], in immediately available
funds, the Warrant Price for each Warrant exercised, to the Warrant
Agent at its corporate trust office [or at ________], provided that
such exercise is subject to receipt, within five business days of
such [payment] [wire transfer] by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Securities
set forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised. The Warrant Agent shall
deposit all funds received by it in payment of the Warrant Price in
an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a [payment]
[wire transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of
the Warrant Securities to which such holder is entitled upon such
exercise, (iii) delivery of Warrant Certificates evidencing the
balance, if any, of the Warrants remaining after such exercise, and
(iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Securities
to which such holder is entitled in fully registered form,
registered in such name or names as may be directed by such holder.
Such certificate or certificates evidencing the Common Stock shall
be deemed to have been issued and any persons who are designated to
be named therein shall be deemed to have become the holder of record
of such Warrant Securities as of the close of business on the
exercise date. No fractional shares of Warrant Securities will be
issued upon exercise of any Warrant. For each fractional share that
would otherwise be issued, the Company will pay by company check in
an amount equal to such fraction multiplied by the closing sales
price of the Warrant Securities on the New York Stock Exchange (or
if not so listed, another equivalent means reasonably determined by
the Company) on the business day immediately preceding the exercise
date. If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign
and deliver, a new Warrant Certificate evidencing the number of such
Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities; and in the
event that any such transfer is involved, the Company shall not be
required to issue or deliver any Warrant Security until such tax or
other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
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ARTICLE III
Other Provisions Relating to Rights of
Holders of Warrant Certificates.
Section 3.1. No Rights as Stockholder Conferred by Warrants or Warrant
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle
the holder thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive the payment of principal of,
premium, if any, or interest on Warrant Securities or to enforce any of the
covenants in the Indenture.
Section 3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.3. Holder of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant Securities
or the holder of any other Warrant Certificate, may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect of,
his right to exercise the Warrants evidenced by his Warrant Certificate in the
manner provided in his Warrant Certificate and in this Agreement.
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ARTICLE IV
Exchange and Transfer of Warrant Certificates.
Section 4.1 Exchange and Transfer of Warrant Certificates. Upon surrender at the
corporate trust office of the Warrant Agent [or at ], Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants [If registered Warrants -- or the
transfer thereof may be registered in whole or in part]; provided that such
other Warrant Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. [If registered Warrants -- The Warrant
Agent shall keep, at its corporate trust office [and at ] books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or at ] for exchange [or registration of transfer],
properly endorsed or accompanied by appropriate instruments of registration of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Warrant Agent.] No service charge shall be made for any exchange
[or registration of transfer] of Warrant Certificates but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer] an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange [or registration of transfer] which will result
in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange [or registration of transfer] of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificates surrendered for such exchange [or registration of transfer].
Section 4.2. Treatment of Holders of Warrant Certificates. [Bearer warrants Each
Warrant Certificate shall be transferable by delivery and shall be deemed
negotiable and the bearer of each Warrant Certificate may be treated by the
Company, the Warrant Agent and all other persons dealing with such bearer as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.] [Registered Warrants - The Company and the Warrant
Agent may treat the registered holder as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.]
Section 4.3. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange [registration of transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
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ARTICLE V
Adjustments.
Section 5.1. Adjustment of Warrant Price. The Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events as hereinafter
described.
Section 5.2. Mandatory Adjustments. The Warrant Securities shall be subject
to adjustment as follows:
(a) If the Company shall (i) declare or pay a dividend on its
outstanding Warrant Securities in shares of Warrant Securities or
make a distribution to holders of its Warrant Securities in shares
of Warrant Securities, (ii) subdivide its outstanding shares of
Warrant Securities into a greater number of shares of Warrant
Securities, (iii) combine its outstanding shares of Warrant
Securities into a smaller number of shares of Warrant Securities, or
(iv) issue by reclassification of its shares of Warrant Securities
other securities of the Company, then the Warrant Securities in
effect immediately prior thereto shall be adjusted so that the
holder of any Warrants thereafter exercised shall be entitled to
receive the number and kind of shares of Warrant Securities or other
securities that the holder would have owned or been entitled to
receive after the happening of any of the events described above had
such Warrants been exercised immediately prior to the happening of
such event or any record date with respect thereto. An adjustment
made pursuant to this paragraph 5.1(a) shall become effective on the
date of the dividend payment, subdivision, combination or issuance
retroactive to the record date with respect thereto, if any, for
such event. Such adjustment shall be made successively.
(b) If the Company shall issue to all holders of its Warrant Securities
rights, options, warrants or convertible or exchangeable securities
expiring within 60 days containing the right to subscribe for or
purchase shares of Warrant Securities at a price per share that is
lower than the then Quoted Price per share (as hereinafter defined)
of Warrant Securities, then the Warrant Securities shall be adjusted
in accordance with the following formula:
(N X P)
AE = E x O + ( M )
O + N
where
AE = the adjusted Warrant Price.
E = the current Warrant Price.
O = the number of shares of Warrant Securities outstanding
on the record date.
N = the number of additional shares of Warrant Securities
offered.
P = the offering price per share of the additional shares.
M = the Quoted Price per share of Warrant Securities on the
record date.
The adjustment shall be made successively whenever any such rights, options,
warrants or convertible or exchangeable securities are issued and shall become
effective immediately after the record date for the determination of
shareholders entitled to receive the rights, options, warrants or convertible or
exchangeable securities. Upon the expiration of any such rights, options,
warrants or convertible or exchangeable securities, if any thereof shall not
have been exercised, the Warrant Price shall be increased by the amount of the
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initial adjustment of the Warrant Price made pursuant to this Section 5.1(b) in
respect of such expired rights, options, warrants or convertible or exchangeable
securities. For the purposes of this Section 5.1, the "Quoted Price" per share
of Warrant Securities at any date shall be deemed to be the average of the daily
closing prices for the 20 consecutive trading days commencing on the 30th
trading day prior to the date in question. The closing price for each day shall
be (i) if the Warrant Securities are listed or admitted to trading on a national
securities exchange, the closing price on the New York Stock Exchange
Consolidated Tape (or any successor composite tape reporting transactions on
national securities exchanges) or, if such a composite tape shall not be in use
or shall not report transactions in the Warrant Securities, the last reported
sales price regular way on the principal national securities exchange on which
the Warrant Securities are listed or admitted to trading (which shall be the
national securities exchange on which the greatest number of shares of Warrant
Securities has been traded during such 20 consecutive trading days), or, if
there is no transaction on any such day in any such situation, the mean of the
bid and asked prices on such day, or (ii) if the Warrant Securities are not
listed or admitted to trading on any such exchange, the closing price, if
reported, or, if the closing price is not reported, the average of the closing
bid and asked prices as reported by NASDAQ, or (iii) if bid and asked prices for
the Warrant Securities on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such date as furnished by
any three New York Stock Exchange member firms regularly making a market in the
Warrant Securities and not affiliated with the Company selected for such purpose
by the Board of Directors of the Company, or (iv) if no such quotations are
available, the fair market value of the Warrant Securities as determined by a
New York Stock Exchange member firm regularly making a market in the Warrant
Securities selected for such purpose by such Board.
(c) If the Company shall distribute to all holders of its outstanding
Warrant Securities any shares of capital stock of the Company (other
than Warrant Securities) or evidences of indebtedness or assets
(excluding ordinary cash dividends, other cash distributions from
current or retained earnings and dividends or distributions referred
to in Sections 5.1(a) and (b)) or rights or warrants to subscribe
for or purchase any of its securities (excluding those referred to
in Section 5.1(b) above) (any of the foregoing being hereinafter in
this Section 5.1(c) called the "Securities or Assets"), then in each
such case, unless the Company elects to reserve shares or other
units of such Securities or Assets for distribution to each holder
of a Warrant upon the exercise of the Warrants so that such holder
will receive upon such exercise, in addition to the shares of the
Warrant Securities to which such holder is entitled, the amount and
kind of such Securities or Assets which such holder would have
received if such holder had, immediately prior to the record date
for the distribution of the Securities or Assets, exercised the
Warrants and received Warrant Securities, the Warrant Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Warrant Price in effect immediately prior to the
date of such distribution by a fraction, the numerator of which
shall be the Quoted Price per share of the Warrant Securities on the
record date mentioned below less the then fair market value (as
determined in good faith by the Board of Directors of the Company),
of the portion of the Securities or Assets so distributed or of such
rights or warrants applicable to one share of Warrant Securities,
and the denominator of which shall be the Quoted Price per share of
the Warrant Securities on such record date; provided, however, that
if the then fair market value (as so determined) of the portion of
the Securities or Assets so distributed applicable to one Warrant
Security equals or exceeds the Quoted Price per Warrant Security on
the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that the holder of
the Warrants shall have the right to receive the amount and kind of
Securities and Assets such holder would have received had such
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holder exercised each such Warrant immediately prior to the record
date for the distribution of the Securities or Assets. Such
adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive such
distribution.
(d) No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of
such price. All calculations under this Section 5.1 shall be made to
the nearest one-hundredth of a cent or to the nearest one-hundredth
of a share, as the case may be.
(e) If the Company shall be a party to any transaction, including
without limitation a merger, consolidation, sale of all or
substantially all of the Corporation's assets, liquidation or
recapitalization of the Warrant Securities (each of the foregoing
being referred to as a "Transaction"), in each case [Insert for
Common Stock: (except in the case of a Warrant Securities
Fundamental Change (as hereinafter defined))] as a result of which
shares of Warrant Securities shall be converted into the right to
receive stock, securities or other property (including cash or any
combination thereof), each Warrant shall thereafter be exercisable
into the kind and amount of shares of stock and other securities and
property receivable (including cash) upon the consummation of such
Transaction by a holder of that number of shares of Warrant
Securities issuable upon the exercise of one Warrant immediately
prior to such Transaction. The Company shall not be a party to any
Transaction unless the terms of such Transaction are consistent with
the provisions of this Section 5.1(e) and it shall not consent or
agree to the occurrence of any Transaction until the Company has
entered into an agreement with the successor or purchasing entity,
as the case may be, for the benefit of the holders of the Warrants,
which shall contain provisions enabling the holders of the Warrants
to exercise such Warrants for the consideration received by holders
of Warrant Securities at the Warrant Price immediately after such
Transaction. The provisions of this Section 5.1(e) shall similarly
apply to successive Transactions.
[Insert for Common Stock]:
(f) In the event of a common stock Fundamental Change, each Warrant
shall be exercisable into Common Stock of the kind received by
holders of Common Stock as the result of such Common Stock
Fundamental Change. The Warrant Price immediately following such
Common Stock Fundamental Change shall be the Warrant Price in effect
immediately prior to such Common Stock Fundamental Change multiplied
by a fraction, the numerator of which is the Purchaser Stock Price
(as hereinafter defined) and the denominator of which is the
Applicable Price (as hereinafter defined). The Company shall not
consent or agree to the occurrence of any Common Stock Fundamental
Change until the Company has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit
of the holders of the Warrants which shall contain provisions
enabling the holders of the Warrants to exercise such Warrants for
the consideration received by holders of Common Stock at the Warrant
Price immediately after such Common Stock Fundamental Change. The
provisions of this Section 5.1(f) shall similarly apply to
successive Common Stock Fundamental Changes.
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(g) As used herein:
(i) The term "Applicable Price" means the Quoted Price for
one share of the Common Stock on the record date for the
determination of the holders of Common Stock entitled to
receive Common Stock in connection with such Common Stock
Fundamental Change, or, if there is no such record date, on
the date upon which the holders of Common Stock shall have
the right to receive such Common Stock.
(ii) The term "Common Stock Fundamental Change" shall mean the
occurrence of any transaction or event in connection with
which all or substantially all the Common Stock shall be
exchanged for, converted into, acquired for or shall
constitute solely the right to receive Common Stock that, for
the ten consecutive trading days immediately prior to such
Common Stock Fundamental Change, has been admitted for
listing on a national securities exchange or quoted on the
National Market System of NASDAQ (whether by means of an
exchange offer, liquidation, tender offer, consolidation,
merger, combination, reclassification, recapitalization or
otherwise).
(iii) The term "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the Quoted Price for one
share of the Common Stock received by holders of Common Stock
in such Common Stock Fundamental Change (determined as if the
definition of Quoted Price contained in this Agreement were
applicable to such Common Stock) on the record date for the
determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record
date, on the date upon which the holders of Common Stock
shall have the right to receive such Common Stock.]
(h) For the purposes of this Section 5.1, the term "shares of Warrant
Securities" shall mean (i) the class of stock designated as the
Warrant Securities of the Company at the date hereof or (ii) any
other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from no par value to par value. If at any time, as a
result of an adjustment made pursuant to Sections 5.1(a), (c), (e)
or (f) the Holder shall become entitled to receive any securities
other than shares of Warrant Securities, thereafter the number of
such other securities so issuable upon the exercise of the Warrants
shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the rights contained in this Section 5.1.
(i) Notwithstanding the foregoing, in any case which this Section 5.1
provides that an adjustment shall become effective immediately after
a record date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Warrant
exercised after such record date and before the occurrence of such
event the additional shares of Warrant Securities issuable upon such
conversion before giving effect to such adjustment and (ii) paying
to such holder any amount in cash by company check in lieu of any
fraction pursuant to Section 2.3.
(j) If the Company shall take any action affecting the Warrant
Securities, other than action described in this Section 5.1, which
in the opinion of the Board of Directors of the Company would
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materially adversely affect the exercise rights of the holders of
the Warrants, the Warrant Price for the Warrants may be adjusted, to
the extent permitted by law, in such manner, if any, and at such
time, as such Board may determine in good faith to be equitable in
the circumstances. Failure of the Board of Directors of the Company
to provide for any such adjustment prior to the effective date of
any such action by the Company affecting the Warrant Securities
shall be evidence that the Board of Directors of the Company has
determined that it is equitable to make no adjustments in the
circumstances.
Section 5.3. Voluntary Adjustment by the Company. The Company may at its option,
at any time during the term of the Warrants, reduce the then current Warrant
Price to any amount deemed appropriate by the Board of Directors of the Company;
provided, that, if the Company elects so to reduce the then current Warrant
Price, such reduction shall remain in effect for at least 20 Business Days,
after which time the Company may, at its option, reinstate the Warrant Price in
effect prior to such reduction.
Section 5.4. Notice of Adjustment. Whenever the Warrant Price is adjusted as
herein provided, the Chief Financial Officer of the Company shall compute the
adjusted Warrant Price in accordance with the foregoing provisions and shall
prepare a certificate setting forth such adjusted Warrant Price and showing in
reasonable detail the facts upon which such adjustment is based. A copy of such
certificate shall be filed promptly with the Warrant Agent. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Warrant Price setting forth the adjusted Warrant Price and the
date on which such adjustment becomes effective and shall mail, or cause the
Warrant Agent to mail at the Company's expense, such notice of such adjustment
of the Warrant Price to each holder of a Warrant at his last address as shown on
the Warrants Register.
Section 5.5. No Adjustment for Dividends. Except as provided in Section 5.1
hereof, no adjustment in respect of any dividends or other payments or
distributions made to holders of securities issuable upon exercise of Warrants
shall be made during the term of a Warrant or upon the exercise of a Warrant.
Section 5.5. Statement on Warrants Certificate. Irrespective of any adjustments
in the number or kind of securities purchasable upon the exercise of the
Warrants or the Warrant Securities, any Warrant Certificate theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrant Certificate initially issuable pursuant to
this Agreement.
Section 5.7. Warrant Agent's Adjustment Disclaimer. The Warrant Agent has no
duty to determine when an adjustment under this Article V should be made, how it
should be made or what it should be. The Warrant Agent shall not be accountable
for and makes no representation as to the validity or value of any securities or
assets issued upon exercise of Warrants. The Warrant Agent shall not be
responsible for the Company's failure to comply with this Article V.
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ARTICLE VI
Concerning the Warrant Agent
Section 6.1. Warrant Agent. The Company hereby appoints __________, as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth; and ________
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section 6.2. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred
by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent, for and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its
acting as Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) In acting under this Warrant Agreement and in connection with the
Warrant Certificates, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of
agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and
the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may
become the owner of, or acquire any interest in Warrants, with the
same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it
or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder.
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(f) The Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) The Warrant Agent shall have no liability with respect to any
invalidity of this Agreement or any of the Warrant Certificates.
(h) The Warrant Agent shall not be responsible for any of the recitals
or representations herein or in the Warrant Certificates (except as
to the Warrant Agent's countersignature thereon), all of which are
made solely by the Company.
(i) The Warrant Agent shall be obligated to perform only such duties as
are herein and in the Warrant Certificates specifically set forth
and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of
the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided
in Section 6.2, to make any demand upon the Company.
(j) The Warrant Agent is hereby authorized to obtain from time to time
from the present transfer agent for the Warrant Securities (the
"Transfer Agent"), and any successor Transfer Agent, stock
certificates required to honor outstanding Warrants. The Company
hereby authorizes its present and any successor Transfer Agent to
comply with all such requests. The Company will supply such Transfer
Agent with duly executed stock certificates for such purpose and
will provide or otherwise make available any cash which may be
payable as provided in Section 2.3 hereof, and the Warrant Agent
shall not be responsible for any delay or failure by such Transfer
Agent in supplying such stock certificates.
Section 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders of the Warrant
Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become
effective; provided that such date shall not be less than three
months after the date on which such notice is given unless the
Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the
date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as
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hereinafter provided, of a successor Warrant Agent (which shall be a
bank or trust company authorized under the laws of the jurisdiction
of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 6(a) shall continue to the
extent set forth therein notwithstanding the resignation or removal
of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under
the Federal Bankruptcy Code, as now constituted or hereafter
amended, or under any other applicable Federal or State bankruptcy
law or similar law or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if
a receiver or custodian of it or of all or any substantial part of
its property shall be appointed, or if an order of any court shall
be entered for relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under
any other applicable Federal or State bankruptcy or similar law, or
if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company, by
an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the
Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
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ARTICLE VII
Miscellaneous.
Section 7.1. Amendment. This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided, that such action
shall not materially and adversely affect the interests of the holders of the
Warrant Certificates.
Section 7.2. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 7.3. Addresses. Any communication from the Company to the Warrant Agent
with respect to this Agreement shall be addressed to _________, and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Alexander & Alexander Services Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, X.X. 00000, Attention: _______________ (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 7.4. Applicable Law. The validity, interpretation and performance of
this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflict of laws principles thereof.
Section 7.5. Delivery of Prospectus. The Company will furnish to the Warrant
Agent sufficient copies of a prospectus relating to the Warrant Securities
deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant, prior to or
concurrently with, the delivery of the Warrant Securities issued upon such
exercise, a Prospectus.
Section 7.6. Obtaining of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under United States Federal and State laws (including,
without limitation, a registration statement in respect of the Warrants and
Warrant Securities under the Securities Act of 1933, as amended), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer, and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
Section 7.7. Persons Having Rights under Warrant Agreement. Nothing in this
Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
Section 7.8. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
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Section 7.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 7.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificates for
inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be affixed hereunto, and the
same to be attested, all as of the day and year first above written.
ALEXANDER & ALEXANDER
SERVICES INC.
By ________________________
Attest:
[Name of Warrant Agent], as Warrant Agent
-------------------------
Attest: By ___________________________
-------------------------
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Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
Exercisable Only if Countersigned by the
Warrant
Agent as Provided Herein
ALEXANDER & ALEXANDER SERVICES INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on ________, 19___.
[No.] Warrants
This certifies that [the bearer is the ] [ or registered assigns is the
registered] owner of the above indicated number of Warrants, each Warrant
entitling such [bearer] [owner] to purchase, at any time [after 5 p.m. New York
time on __________, 19___, and] on or before 5 p.m. New York time on __________,
19___, ___________ [Title of Warrant Securities] (the "Warrant Securities"), of
Alexander & Alexander Services Inc., (the "Company"), issued and to be issued on
the following basis: [on __________, 19___, the exercise price of each Warrant
will be ________ (currency); during the period from __________, 19___, through
and including ___________, 19___, the exercise price of each Warrant will be
__________ (currency). The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, [in lawful money of the United States of America] [in cash or by certified
check or official bank check or by bank wire transfer, in each case] [by bank
wire transfer], in immediately available funds, the Warrant Price for each
Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successors as warrant agent (the "Warrant Agent"), [or ] currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
The Company will not be required to issue fractional shares of Warrant
Securities upon exercise of the Warrants or distribute stock certificates that
evidence fractional shares of Warrant Securities. In lieu of fractional shares
of Warrant Securities, there shall be paid by the Company to the registered
holder of this Warrant Certificate at the time such Warrant Certificate is
exercised an amount in cash payable by company check equal to the closing sales
price of the Warrant Securities on the New York Stock Exchange (or if not so
listed, another equivalent means reasonably determined by the Company) on the
business day immediately preceding the exercise date, multiplied by such
fraction.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of ___________, 19__, (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement and the form of Warrant Securities are on file at the
above-mentioned office of the Warrant Agent [and at].
[Bearer Warrants -- This Warrant Certificate, and all rights hereunder, may be
transferred by delivery and the Company and the Warrant Agent may treat the
bearer hereof as the owner for all purposes.]
[Registered Warrants -- This Warrant Certificate may be transferred when
surrendered at the corporate trust office of the Warrant Agent [or ] by the
registered owner or his appointed person or by an attorney duly authorized in
writing, in the manner and subject to the terms provided in the Warrant
Agreement.]
After countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of Warrant Securities, including, without limitation, the
right to receive dividends, vote, receive notice of any meeting of stockholders
or otherwise have any right as a stockholder of the Company.
This Warrant Certificate shall not be valid for any purpose until countersigned
by the Warrant Agent.
Dated as of _________, 19___.
ALEXANDER & ALEXANDER
SERVICES INC.
By ___________________________
Attest:
------------------------------
Countersigned
------------------------------
As Warrant Agent
By ______________________________
Authorized Signature
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in cash or by
certified check or official bank check or by bank wire transfer] [by bank wire
transfer], in immediately available funds, the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent] Corporate Trust Department
[insert address of Warrant Agent], Attn:____________ [or ________], which
[payment] [wire transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, the holder must complete the
information required below and present this Warrant Certificate in person or by
mail (registered mail is recommended) to the Warrant Agent at the addresses set
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forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise Warrants evidenced by this
Warrant Certificate, to purchase _________ [Title of Warrant Securities] (the
"Warrant Securities") of Alexander & Alexander Services Inc. and represents that
he has tendered payment for such Warrant Securities [in cash or by certified
check or official bank check or by bank wire transfer, in each case] [by bank
wire transfer], in immediately available funds, to the order of Alexander &
Alexander Services Inc., c/o [insert name and address of Warrant Agent], in the
amount of ________ (currency) in accordance with the terms hereof. The
undersigned requests that said principal amount of Warrant Securities be in
fully registered form and in the authorized denominations, registered in such
names and delivered, all as specified in accordance with the instructions set
forth below.
If the number of Warrants exercised is less than all of the Warrants evidenced
hereby, the undersigned requests that a new Warrant Certificate representing the
remaining Warrants evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
Dated: Name ________________________
(Please Print)
_________________________ Address _____________________
Social Security Number or ______________________
Other Identifying Number of ______________________
Holder
Signature ___________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ____________________________________________
--------------------------------------------
--------------------------------------------
By mail at ____________________________________________
--------------------------------------------
--------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
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*Certificate for Delivery of Bearer Warrant Securities
ALEXANDER & ALEXANDER SERVICES INC.
Warrant Securities
TO: Alexander & Alexander Services Inc.
c/o
as Trustee
This certificate is submitted in connection with our request that you deliver to
us _________ Warrant Securities in bearer form upon exercise of Warrants. We
hereby certify that either (a) none of such Warrant Securities will be held by
or on behalf of a United States Person or (b) if a United States Person will
have a beneficial interest in such Warrant Securities, such person is described
in Section 165(j)(3)(A), (B) of (C) of the United States Internal Revenue Code
of 1954, as amended and the regulations thereunder. As used herein, "United
States Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or resident under the laws
or the United States or any political subdivision thereof or an estate or trust
whose income from sources without the United States is includible in gross
income for Unites States Federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
We understand that this certificate is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: __________________________
(Please print name)
* Subject to changes in accordance with changes in tax laws and regulations.
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[If Registered Warrant]
Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For value received _________________ hereby sells, assigns and transfers unto
---------------------------------- -------------------
(Please print name and address Social Security
of assignee, including zip code) Number or other identifying number
-----------------------------------------------------------
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________ Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
Dated:
-------------------------------
Signature
(Signature must conform in all respect to name of
holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee of
a commercial bank, trust company, or member broker
of the New York, American, Midwest or Pacific
Stock Exchange.)
Signature Guaranteed:
-----------------------------
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