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EXHIBIT (4e-1)
Form of Warrant Agreement for Equity Securities
FERRO CORPORATION
AND
_____________________
AS WARRANT AGENT
WARRANT AGREEMENT
DATED AS OF ____________________, 199__
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TABLE OF CONTENTS(1)
Page
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Form of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3 Execution and Authentication of
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.4 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.6 Definition on Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4 Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 Call of Warrants by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.2 Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer
of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.2 Mutilated, Destroyed, Lost or Stolen
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.4 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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(1) The Table of Contents is not a part of the Warrant Agreement.
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ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
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Section 5.1 No Rights as Stockholders Conferred
by Warrants or Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6.2 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6.3 Resignation, Removal and Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject to
Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.2 Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.4 Notice and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.5 Notices to Warrantholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.6 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.8 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.9 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.10 Persons Having Rights under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Exhibit A - Form of Warrant Certificate
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THIS WARRANT AGREEMENT, dated as of ______________, 19__, between
Ferro Corporation, a corporation duly organized and existing under the laws of
the State of Ohio (the "Company") and _______________, a {corporation}
{national banking association} organized and existing under the laws of
_______________, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell {IF OFFERED EQUITY SECURITIES
AND WARRANTS -- {title of Equity Securities being offered} (the "Offered Equity
Securities") with} warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants ("Warrants" or,
individually, a "Warrant") representing the right to purchase shares of {Common
Stock} {Preferred Stock} (the "Equity Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and
in this Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. {IF WARRANTS ALONE --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.} IF
OFFERED EQUITY SECURITIES AND WARRANTS -- Warrant Certificates shall be
{initially} issued in units with the Offered Equity Securities and shall {not}
be separately transferable {before _________, 19__ (the "Detachable Date")}.
Each such unit shall consist of a Warrant Certificate or Certificates evidencing
an aggregate of ______ Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
one share of {Common Stock} {Preferred Stock}.
Section 1.2 Form of Warrant Certificates. The Warrant Certificates
(including the Form{s} of Exercise {and Assignment} to be set forth on the
reverse thereof) shall be in substantially the form set forth in Exhibit A
hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, with the execution thereof by such officers conclusively
evidencing such determination) and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Warrant Certificates may be listed or as may, consistently herewith, be
determined by the officers executing such Warrant Certificates, with the
execution thereof by such officers conclusively evidencing such determination.
Section 1.3 Execution and Authentication of Warrant Certificates.
The Warrant Certificates shall be executed on behalf of the Company by its
Chairman, its Chief Executive
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Officer, its President or one of its Vice Presidents (any reference to a Vice
President of the Company herein shall be deemed to include any Vice President
of the Company whether or not designated by a number or a word or words added
before or after the title "Vice President") under its corporate seal reproduced
thereon attested to by its Treasurer or Secretary or one of its Assistant
Treasurers or Assistant Secretaries. The signature of any of these officers on
the Warrant Certificates may be manual or facsimile.
Warrant Certificates evidencing the right to purchase a number of
shares of {Common Stock} {Preferred Stock} having an aggregate liquidation
value not exceeding $_______________ (except as provided in Sections 1.4,
2.3(c), 4.1 and 4.2) may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, authenticate Warrant Certificates evidencing
Warrants representing the right to purchase a number of shares of {Common
Stock} {Preferred Stock} having an aggregate liquidation value not exceeding
$_____________ and shall deliver such Warrant Certificates to or upon the order
of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall authenticate a Warrant Certificate only
if the Warrant Certificate is issued in exchange or substitution for one or
more previously authenticated Warrant Certificates (IF REGISTERED WARRANTS --
or in connection with their transfer), as hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Warrant
Certificates or did not hold such offices at the date of such Warrant
Certificates.
Section 1.4 Temporary Warrant Certificates. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, with the execution thereof
by such officers conclusively evidencing such determination.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office
of the Warrant Agent {or ____________}, without charge to the Holder (as
defined in Section 1.6 below). Upon surrender for cancellation of any one or
more temporary Warrant Certificates the Company shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor definitive Warrant
Certificates representing the
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same aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
Section 1.5 Payment of Taxes. The Company will pay all stamp taxes
and other duties, if any, to which, under the laws of the United States of
America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.6 Definition of Holder. The term "Holder" as used herein
shall mean {IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE --, prior to the Detachable Date, the registered owner of the
Offered Equity Security to which such Warrant Certificate was initially
attached, and, after such Detachable Date,} {the person in whose name at the
time such Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4.1}. {IF
OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Equity Securities to, make available to the Warrant Agent current
information as to Holders of the Offered Equity Securities.}
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price.(2) During the period set forth in Section
2.2, each Warrant shall entitle the Holder thereof, subject to the provisions
of this Agreement, to purchase from the Company one share of {Common Stock}
{Preferred Stock} at the exercise price of $__________. Such exercise price of
each Warrant is referred to in this Agreement as the "Exercise Price."
Section 2.2 Duration of Warrants. Any Warrant evidenced by a Warrant
Certificate may be exercised at any time, as specified herein, on or after {the
date thereof} {____________, 19___} and at or before the close of business on
____________, 19___ (the "Expiration Date"). Each Warrant not exercised at or
before the close of business on the Expiration Date shall become void, and all
rights of the Holder of the Warrant Certificate evidencing such Warrant under
this Agreement or otherwise shall cease.
Section 2.3 Exercise of Warrants. (a) During the period specified in
Section 2.2, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in full, in lawful
money of the United States of America, {in cash or by certified check or
official bank check in New York Clearing House funds} {by bank wire transfer in
immediately available funds}, of the Exercise Price for each Warrant exercised.
The date on which payment in full of the Exercise Price for a Warrant and the
duly executed and completed Warrant Certificate are received by the Warrant
Agent shall be deemed to be the date on which such Warrant is exercised. The
Warrant Agent shall deposit all funds received by it as payment for the
exercise of Warrants to the account of the Company maintained with it for such
purpose and shall advise the Company by telephone at the end of each day on
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(2) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
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which such a payment is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephonic advice to the Company
in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the terms and
conditions of this Agreement and the Warrant Certificates, advise the Company
of (i) the number of Warrants so exercised, (ii) the instructions of each
Holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the certificate or certificates representing shares of {Common
Stock} {Preferred Stock} to which such Holder is entitled upon such exercise,
and instructions of such Holder as to delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iii) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue, to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, a certificate or certificates
representing the number of shares of {Common Stock} {Preferred Stock} to which
such Holder is entitled in such name or names as may be directed by such
Holder; and, if fewer than all of the Warrants evidenced by such Warrant
Certificate were exercised, the Company shall execute and an authorized officer
of the Warrant Agent shall manually authenticate and deliver a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issuance of the {Common Stock} {Preferred Stock}; and
in the event that any such transfer is involved, the Company shall not be
required to issue or deliver any shares of {Common Stock} {Preferred Stock}
until such tax or other charge shall have been paid or it has been established
to the Company's satisfaction that no such tax or other charge is due.
Section 2.4 Reservation of Shares. For the purpose of enabling
it to satisfy any obligation to issue shares of {Common Stock} {Preferred
Stock} upon exercise of the Warrants, the Company will, at all times through
the close of business on the Expiration Date, reserve and keep available, free
from preemptive rights and out of its aggregate authorized but unissued shares
of {Common Stock} {Preferred Stock}, the number of shares of {Common Stock}
{Preferred Stock}, the number of shares of {Common Stock} {Preferred Stock}
deliverable upon the exercise of all outstanding Warrants.
The Company covenants that all shares of {Common Stock} {Preferred
Stock} issued upon the exercise of the Warrants will, upon issuance in
accordance with the terms of this Agreement, be fully paid and nonassessable
and free from all taxes, liens, charges and security interests created by or
imposed upon the Company with respect to the issuance and holding thereof.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 {Call of Warrants by the Company.(3) IF WARRANTS
ISSUED HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right
to call and repurchase any or all Warrants on or after _______, 19__ (the "Call
Date") and
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(3) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
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upon the occurrence of {discuss events or circumstances under which Company may
call the Warrants} (the "Call Terms") at a price of $___________ per Warrant
(the "Call Price"). Notice of such Call Price, Call Date and Call Terms shall
be given to registered holders of Warrants in the manner provided in Section
7.5.}
Section 3.2 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of shares of
{Common Stock} {Preferred Stock} purchasable upon the exercise of each Warrant
and the number of Warrants outstanding are subject to adjustment from time to
time upon the occurrence of the events enumerated in this Section 3.2.
(a) If the Company shall (i) pay a dividend in or make a distribution
of shares of its capital stock, whether shares of {Common Stock} {Preferred
Stock} or shares of its capital stock of any other class, (ii) subdivide its
outstanding shares of {Common Stock} {Preferred Stock} , (iii) combine its
outstanding shares of {Common Stock} {Preferred Stock} into a smaller number of
shares of {Common Stock} {Preferred Stock} or (iv) issue any shares of its
capital stock in a reclassification of the {Common Stock} {Preferred Stock}
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of
shares of {Common Stock} {Preferred Stock} purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be identified to receive the kind and number of shares of {Common
Stock} {Preferred Stock} or other securities of the Company which such holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior
to the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event, retroactive to immediately
after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all
holders of its outstanding {Common Stock} {Preferred Stock}, without any charge
to such holders, entitling them to subscribe for or purchase shares of {Common
Stock} {Preferred Stock} at a price per share that is lower than the market
price per share of {Common Stock} {Preferred Stock} (as defined in paragraph
(e) below) at the record date mentioned below, the number of shares of {Common
Stock} {Preferred Stock} thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of shares of {Common
Stock} {Preferred Stock} theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be (i) the number of shares of
{Common Stock} {Preferred Stock} outstanding on the date of issuance of such
rights, options or warrants plus the number of additional shares of {Common
Stock} {Preferred Stock} offered for subscription or purchase, and of which the
denominator shall be (ii) the number of shares of {Common Stock} {Preferred
Stock} outstanding on the date of issuance of such rights, options or warrants
plus the number of shares which the aggregate offering price of the total
number of shares of {Common Stock} {Preferred Stock} so offered would purchase
at the market price per share of {Common Stock} {Preferred Stock} at such
record date. Such adjustment shall be made whenever such rights, options or
warrants are issued, and shall become effective retroactive to immediately
after the record date for the determination of stockholders entitled to receive
such rights, options or warrants.
(c) If the Company shall distribute to all holders of its shares of
{Common Stock} {Preferred Stock} evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of capital surplus and
dividends or distributions referred to in paragraph (a) above) or rights,
options or warrants or convertible or exchangeable securities containing the
right to subscribe for or purchase shares of {Common Stock} {Preferred Stock}
(excluding those referred to in paragraph (b) above), then in each case the
number of
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shares of {Common Stock} {Preferred Stock} thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
shares of {Common Stock} {Preferred Stock} theretofore purchasable upon the
exercise of each Warrant, by a fraction, of which the numerator shall be (i)
the then current market price per share of {Common Stock} {Preferred Stock} (as
defined in paragraph (e) below) on the date of such distribution, and of which
the denominator shall be (ii) the then current market price per share of
{Common Stock} {Preferred Stock} less the then fair value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive) of
the portion of the assets or evidences of indebtedness so distributed or of
such subscription rights, options or warrants or convertible or exchangeable
securities applicable to one share of {Common Stock} {Preferred Stock}. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to immediately after
the record date for the determination of stockholders entitled to receive such
distribution.
(d) In the event of any capital reorganization or any
reclassification of the {Common Stock} {Preferred Stock} (except as provided in
paragraphs (a) through (c) above, any holder of Warrants upon exercise thereof
shall be entitled to receive, in lieu of the {Common Stock} {Preferred Stock}
to which he or she would have become entitled upon exercise immediately prior
to such reorganization or reclassification, the shares (of any class or
classes) or other securities or property of the Company that he or she would
have been entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto.
(e) For the purpose of any computation under paragraphs (b) and (c)
of this Section 3.2, the current or closing market price per share of {Common
Stock} {Preferred Stock} at any date shall be deemed to be the average of the
daily closing prices for _____ consecutive trading days commencing
________________ trading days before the date of such computation. The closing
price for each day shall be {the last sale price} for such day, in either case
as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange (the "NYSE") or if the {Common Stock} {Preferred Stock} is not listed
on the NYSE, then on the principal United States national securities exchange
on which the {Common Stock} {Preferred Stock} is listed or quoted. If the
{Common Stock} {Preferred Stock} is not listed or quoted on any United States
national securities exchange, then the current or closing market price per
share of {Common Stock} {Preferred Stock} shall be determined by the Board of
Directors of the Company in good faith.
(f) Whenever the number of shares of {Common Stock} {Preferred Stock}
purchasable upon the exercise of each Warrant is adjusted as herein provided,
the Exercise Price payable upon the exercise of each Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of shares purchasable upon
the exercise of each Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares to purchasable immediately
thereafter.
(g) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (d) of this Section 3.2, to adjust the
number of Warrants in substitution for an adjustment in the number of shares of
{Common Stock} {Preferred Stock} purchasable upon the exercise of a Warrant.
Each of the Warrants outstanding after such adjustment of the number of
Warrants shall be exercisable for the same number of shares of {Common Stock}
{Preferred Stock} as immediately prior to such adjustment. Each Warrant held
of record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Exercise Price in effect prior to adjustment of the Exercise Price by the
Exercise Price in effect after
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adjustment of the Exercise Price. The Company shall notify the holders of
Warrants, in the same manner as provided in the first paragraph of Section 7.5,
of its election to adjust the number of Warrants, indicating the record date
for the adjustment, and, if known at the time, the amount of the adjustment to
be made. This record date may be the date on which the Exercise Price is
adjusted or any day thereafter. Upon each adjustment of the number of Warrants
pursuant to this paragraph (g) the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Warrants on such record date
Warrant Certificates evidencing, subject to paragraph (h), the additional
Warrants to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1 (and which may bear, at the option of the Company, the
adjusted Exercise Price) and shall be registered in the names of the holders of
record of Warrant Certificates on the record date specified in the notice.
(h) The Company shall not be required to issue fractions of Warrants
on any distribution of Warrants to holders of Warrant Certificates pursuant to
paragraph (g) or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants, there shall be paid to the
registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant on the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable (the "Valuation Date"). For purposes of this paragraph (h),
the current market value of a Warrant shall be the aggregate closing market
price on the Valuation Date (determined as set forth in paragraph (e)) of all
shares of {Common Stock} {Preferred Stock} issuable upon exercise of one
Warrant plus the fair value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of any other assets or
securities purchasable upon exercise of one Warrant less the Exercise Price of
one Warrant.
(i) Notwithstanding any adjustment pursuant to Section 3.2 in the
number of shares of {Common Stock} {Preferred Stock} purchasable upon the
exercise of a Warrant, the Company shall not be required to issue fractions of
shares of {Common Stock} {Preferred Stock} upon exercise of the Warrants or to
distribute certificates which evidence fractional shares. In lieu of
fractional shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of {Common Stock} {Preferred Stock}. For purposes of this
paragraph (i), the current market value of a share of Preferred Stock shall be
the closing market price (determined as set forth in paragraph (e)) of a share
of {Common Stock} {Preferred Stock} for the trading day immediately prior to
the date of such exercise.
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant
Certificates. The Warrant Agent shall keep, at its corporate trust office {and
at __________________}, books in which, subject to such reasonable regulations
as it may prescribe, it shall register Warrant Certificates and transfers of
outstanding Warrant Certificates.
- 7 -
11
{IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, a Warrant Certificate may be
exchanged or transferred only together with the Offered Equity Security to
which such Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Equity Security. Additionally, on or prior to the Detachable Date, each
transfer or exchange of an Offered Equity Security {on the register of the
Offered Equity Securities} shall operate also to transfer or exchange the
Warrant Certificate or Certificates to which such Offered Equity Security was
initially attached. After the Detachable Date, upon} {IF OFFERED EQUITY
SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE -
Upon} surrender at the corporate trust office of the Warrant Agent {or _______
_________________} of Warrant Certificates properly endorsed {or accompanied by
appropriate instruments of transfer} and accompanied by written instructions
for {transfer or} exchange, all in a form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates {IF REGISTERED WARRANTS -- or may be transferred in whole or in
part}; provided that Warrant Certificates issued in exchange for {or upon
transfer of} surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service
charge shall be made for any exchange {or transfer} of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or governmental charge that may be imposed in connection with any
such exchange {or transfer}. Whenever any Warrant Certificates are so
surrendered for exchange {or transfer}, the Company shall execute and an
authorized officer of the Warrant Agent shall manually authenticate and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates as so requested. The Warrant Agent shall not be required to
effect any exchange {or transfer} which would result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange {or transfer} of Warrant Certificates issued upon any exchange {or
transfer} of Warrant Certificates shall evidence the same obligations, and be
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange {or transfer}.
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) connected therewith.
Every new Warrant Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Warrant Certificate shall evidence an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section are exclusive and shall preclude (to
the
- 8 -
12
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Section 4.3 Persons Deemed Owners. {IF OFFERED EQUITY SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company, the Warrant Agent and all other persons may treat the owner of any
Offered Equity Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date, and prior
to due presentment of a Warrant Certificate for registration of transfer, the
Company, the Warrant Agent and all other persons may treat the Holder as the
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.4 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange {, transfer} or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by it and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall
be issued hereunder in lieu or in exchange thereof. The Company may at any
time deliver to the Warrant Agent for cancellation any Warrant Certificates
previously issued hereunder which the Company may have acquired in any manner
whatsoever, and all Warrant Certificates so delivered shall be promptly
cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the
Warrant Agent shall be destroyed by it unless by written order the Company
requests their return to it.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to reserve dividends.
Section 5.2 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, any stockholder
or the Holder of any other Warrant Certificate, may, on its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect of
its right to exercise the Warrant or Warrants evidenced by his or her Warrant
Certificate in the manner provided in the Warrant Certificates and in this
Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent. The Company hereby appoints
__________________ as Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions
herein set forth, and _________________ hereby accepts such appointment. The
Warrant Agent shall have the power and authority granted to
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13
and conferred upon it in the Warrant Certificates and hereby and such further
power and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 6.2 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth, upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and 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 such Warrant Agent
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
at any time of its powers or duties hereunder. The obligations of the Company
under this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of the
Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be genuine and to have
been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its officers,
directors and employees, or any other agent of the Company, in its individual
or any other capacity, may become the owner of, or acquire any interest in, any
Warrant Certificates, with the same rights that it would have if it were not
such Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
securities or other obligations of the Company as freely as if it were not such
Warrant Agent, officer, director, employee or other agent.
(f) No Liability for Interest. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Warrant Agent and except for the negligence of the Warrant Agent.
- 10 -
14
(g) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of
the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificate (except as to the Warrant Agent's
Certificate or Authentication thereon), all of which are made solely by the
Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it any expense or liability, the payment of which
within a reasonable period of time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates or any exercise of the Warrants evidenced thereby. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a Holder of a Warrant Certificate with respect to such default,
including without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceeding at law or
otherwise or, except as provided in Section 7.4 hereof, to make any demand upon
the Company.
Section 6.3 Resignation, Removal and Appointment of Successor. (a)
The Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which it desires its resignation to become effective; provided
that, without the consent of the Company, such date shall not be less than
three months after the date on which such notice is given. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date on which the Company expects such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company of
a successor Warrant Agent (which shall be a bank or trust company organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia and authorized under such laws to exercise
corporate trust powers) by an instrument in writing filed with such successor
Warrant Agent and the acceptance of such appointment by such successor Warrant
Agent pursuant to Section 6.3(d).
(c) In case at any time the Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors or consent to the appointment of a
receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, a successor
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15
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities
and other property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company
may consolidate with, or sell or convey all or substantially all of its assets
to, or merge with or into any other corporation, provided that in any such
case, either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consideration or into
which the Company is merged or the corporation which acquired by purchase or
conveyance all or substantially all of the assets of the Company shall
expressly assume the obligations of the Company hereunder.
Section 7.2 Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the shares of {Common Stock} {Preferred Stock} issuable pursuant to the terms
hereof.
Section 7.3 Amendment. This Agreement may be amended by the parties
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making such provisions in regard to
matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect
the interests of the Holders of the Warrant Certificates in any material
respect. Any amendment or supplement to this Agreement or the Warrants that
has a material adverse effect on the interests of Holders of any series of
Warrants shall require the written consent of Holders of a majority of the then
outstanding Warrants of such series.
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The consent of each Holder of a Warrant affected shall be required for any
amendment pursuant to which the Warrant Price would be increased or the number
of shares of {Common Stock} {Preferred Stock} purchasable upon exercise of
Warrants would be decreased. The Warrant Agent may, but shall not be obligated
to, enter into any amendment to this Agreement which affects the Warrant
Agent's own rights, duties or immunities under this Agreement or otherwise.
Section 7.4 Notice and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by the Holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 7.5 Notices to Warrantholders. Upon any adjustment of the
number of shares purchasable upon exercise of each Warrant, the Exercise Price
or the number of Warrants outstanding pursuant to Section 3.2, the Company
within ___________ calendar days thereafter shall (i) cause to be filed with
the Warrant Agent a certificate of a firm of independent public accountants of
recognized standing selected by the Company (who may be the regular auditors of
the Company) setting forth the Exercise Price and either the number of shares
of {Common Stock} {Preferred Stock} and other securities or assets purchasable
upon exercise of each Warrant or the additional number of Warrants to be issued
for each previously outstanding Warrant, as the case may be, after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such adjustment are made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as part of the
notice required to be mailed under the provisions of this Section 7.5.
Pursuant to Sections 3.1 {add other sections as applicable}, the
Company shall cause written notice of such Call Price, Call Date and Call Terms
{reference other items as applicable}, as the case may be, to be given as soon
as practicable to the Warrant Agent and to each of the registered holders of
the Warrant Certificates by first class mail, postage prepaid, at such holder's
address appearing on the Warrant Register. In addition to the written notice
referred to in the preceding sentence, the Company shall make a public
announcement in a daily morning newspaper of general circulation in
________________ of such Call Price, Call Date, and Call Terms {reference other
items as applicable}, as the case may be, at least once a week for two
successive weeks prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any securities
upon its shares of {Common Stock} {Preferred Stock} or make any distribution
(other than a cash dividend) to the holders of its shares of {Common Stock}
{Preferred Stock}; or
(b) the Company shall offer to the holders of its shares of {Common
Stock} {Preferred Stock} any additional shares of {Common Stock} {Preferred
Stock} or securities convertible into shares of {Common Stock} {Preferred
Stock} or any right to subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger, or sale of all
substantially all of its property, assets, and business as an entirety);
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then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first-class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in ______________________ of such event, such giving of notice and
publication to be completed at least _________ calendar days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution, or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 7.5 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
Section 7.6 Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to __________,
Attention: _______________, and any communications from the Warrant Agent to
the Company with respect to this Agreement shall be addressed to Ferro
Corporation, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Treasurer
(or such other address as shall be specified in writing by the Warrant Agent or
by the Company).
Section 7.7 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of Ohio.
Section 7.8 Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus, appropriately supplemented,
relating to the {Common Stock} {Preferred Stock} (the "Prospectus"), and the
Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the
Warrant Agent will deliver to the person designated to receive a certificate
representing shares of {Common Stock} {Preferred Stock}, prior to or
concurrently with the delivery of such securities, a Prospectus.
Section 7.9 Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, to the extent required, the
maintenance of the effectiveness of a registration statement in respect of the
{Common Stock} {Preferred Stock} under the Securities Act of 1933, as amended,
which may be or become required in connection with the exercise of the Warrant
Certificates and the original issuance and delivery of the {Common Stock}
{Preferred Stock}.
Section 7.10 Persons Having Rights Under Warrant Agreement. Nothing in
this agreement expressed or implied and nothing that may be inferred from any of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the Holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
Holders of the Warrant Certificates.
Section 7.11 Headings. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
construction hereof.
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Section 7.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 7.13 Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent {and at ______________} for inspection by the Holder of any
Warrant Certificate. The Warrant Agent may require such Holder to submit its
Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, and their respective corporate seal to be hereunto affixed
and attested, all as of the day and year first above written.
FERRO CORPORATION
By
---------------------------------
{SEAL}
Attest:
---------------------------------------
{Assistant Secretary}
{NAME OF WARRANT AGENT}
By
---------------------------------
{SEAL}
Attest:
---------------------------------------
{Assistant Secretary}
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EXHIBIT A
{FORM OF WARRANT CERTIFICATE}
{Face}
FORM OF LEGEND IF OFFERED {Prior to _____________, this
EQUITY SECURITIES WITH Warrant Certificate may be
WARRANTS WHICH ARE NOT transferred or exchanged
IMMEDIATELY DETACHABLE: if and only if the {Title
of Offered Equity Security}
to which it was initially
attached is so transferred
or exchanged.}
FORM OF LEGEND IF WARRANTS {Prior to ______________,
ARE NOT IMMEDIATELY Warrants evidenced by this
EXERCISABLE: Warrant Certificate cannot
be exercised.}
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON ___________, 19__
FERRO CORPORATION
Warrant Certificate representing
Warrants to purchase
{Title of Equity Security}
as described herein
No. ______________ Warrants
This certifies that ______________________________ or registered
assigns is the registered owner of the above indicated number of Warrants, each
Warrant entitling such registered owner to purchase, at any time {after the
close of business on ________________, 19_, and} on or before the close of
business on _____________, 19__, one share of the {Common Stock} {Preferred
Stock} (the "Equity Securities") of Ferro Corporation (the "Company"), on the
following basis.* During such period, each Warrant shall entitle the Holder
thereof, subject to the provisions of the Warrant Agreement (as defined below),
to purchase from the Company one share of {Title of Equity Securities} at the
exercise price of $____ (the "Exercise Price"). The Holder of this Warrant
Certificate may exercise the Warrants evidenced hereby, in whole or in part, by
surrendering this Warrant Certificate, with the purchase form set forth hereon
duly completed, accompanied by payment in full, in lawful money of the United
States of America, {in cash or by certified check or official bank check in New
York Clearing House funds or by bank wire transfer in immediately available
funds}, the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined) at the corporate trust office of {name of Warrant Agent},
or its successor, as warrant agent (the "Warrant Agent") {or at
______________,} at the addresses specified on ________________________________.
* Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
20
the reverse hereof and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement.
The term "Holder" as used herein shall mean {IF OFFERED EQUITY
SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - -, prior to
_____________, 19__, (the "Detachable Date"), the registered owner of the
Company's {title of Offered Equity Security} to which such Warrant Certificate
was initially attached, and after such Detachable Date,} the person in whose
name at the time such Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose pursuant to Section 4.1 of
the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase shares of {title of Equity Security}. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the registered owner hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement dated as of _____________, 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 are on file at the above-mentioned
office at the Warrant Agent {and at _________________}.
{IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE - - Prior to _____________, 19__ (the "Detachable
Date"), this Warrant Certificate may be exchanged or transferred only together
with the {title of Offered Equity Security} (the "Offered Equity Security"} to
which this Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Equity Security. Additionally, on or prior to the Detachable Date each
transfer of such Offered Equity Security on the register of the Offered Equity
Securities shall operate also to transfer this Warrant Certificate. After the
Detachable Date, this} {IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR WARRANTS ALONE -- This} Warrant Certificate, and all
rights hereunder, may be transferred when surrendered at the corporate trust
office of the Warrant Agent {or ____________} by the registered owner or his
assigns, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations provided in the Warrant Agreement.
{IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE -- Except as provided in the immediately preceding
paragraph, after} {IF OFFERED EQUITY SECURITIES AND WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR WARRANTS ALONE -- After} authentication by the
Warrant Agent and prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate trust office of the
Warrant Agent {or at ____________} for Warrant Certificates representing the
same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner
hereof to any of the rights of a stockholder, including, without limitation,
the right to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
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This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: ______________
FERRO CORPORATION
By:
--------------------------------
Attest:
-----------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
------------------------------
As Warrant Agent
By:
---------------------------
Authorized Signature
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22
{FORM OF WARRANT CERTIFICATE}
{REVERSE}
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay {in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds}, the Exercise Price in full for each of the Warrants
exercised, to _____________________, Corporate Trust Department,
______________, Attn: ___________________ {or ______________________}, which
payment should specify the name of the Holder of this Warrant Certificate and
the number of Warrants exercised by such Holder. In addition, the Holder of
this Warrant Certificate should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to the
Warrant Agent at the addresses set forth below.
{FORM OF EXERCISE}
{To be executed upon exercise of Warrants.}
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase _______ shares of the
{Common Stock} {Preferred Stock} (the "Equity Securities") of Ferro Corporation
and represents that he or she has tendered payment for such shares of {title of
Equity Security} {in cash or by certified check or official bank check in New
York Clearing House funds or by bank wire transfer in immediately available
funds} to the order of Ferro Corporation, c/o Treasurer, in the amount of
$__________ in accordance with the terms hereof. The undersigned requests that
said shares of {title of Equity Securities} be registered in such names and
delivered, all as specified in accordance with the instructions set forth
below.
If said number of shares of {title of Equity Security} is less
than all of the shares of {title of Equity Security} purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the remaining
balance of the Warrants evidenced hereby be issued and delivered to the
undersigned unless otherwise specified in the instructions below.
Dated: _________________________ Name
-------------------------------
--------------------------------
(Insert Social Security or Other Address
Identifying Number of Holder) ----------------------------
----------------------------
Signature
--------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York, Chicago or Pacific Stock
Exchange.)
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23
This Warrant may be exercised at the following addresses:
By hand at _____________________________________
_____________________________________
_____________________________________
_____________________________________
By mail at _____________________________________
_____________________________________
_____________________________________
_____________________________________
(Instructions as to form and delivery of {title of Equity Security} and/or
Warrant Certificates):
{FORM OF ASSIGNMENT}
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _______________________ hereby sells, assigns
and transfers unto
-------------------------------------
(Please print name and
address including zip code)
Please insert social security or
other identifying number
-----------------------------------
________________________________________________________________________________
_____________________________________________________ the right represented by
the within Warrant Certificate and does hereby irrevocably constitute and
appoint _______________________, Attorney, to transfer said Warrant Certificate
on the books of the Warrant Agent with full power of substitution.
Dated:_______________________
------------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York, Chicago or Pacific Stock
Exchange)
Signature Guaranteed:
----------------------------------
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