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EXHIBIT 4.5
XXXXXX INDUSTRIES, INC.
Form of Warrant Agreement
[for warrants sold attached to debt securities]*
THIS WARRANT AGREEMENT is dated as of ________________,
between Xxxxxx Industries, Inc., a Delaware 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 has entered into an Indenture dated as of
_____________, (the "Indenture"), with ____________, as trustee (the
"Trustee"), providing for the issuance from time to time of its unsecured
[senior] [subordinated] debentures, notes or other evidences of indebtedness
(the "Debt Securities"), to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, the Company proposes to sell [title of Debt
Securities being offered] (the "Offered Securities") with warrant certificates
evidencing one or more warrants (the "Warrants" or, individually a "Warrant")
representing the right to purchase [title of Debt 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. Warrants shall be initially
issued in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after _________, ____ (the "Detachable Date")]
[and shall not be separately transferable] and each
______________
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants and Warrant Securities.
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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 a Warrant Security in the principal amount of
[$]_______. Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence ___ Warrants for each [$]____ principal amount of Offered Securities
included in such unit.
Section 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered* form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its issuance 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.
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.
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. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. The Company will or will cause the registrar of the Offered
Securities to make available at all
_______________
* If Warrants are issued in bearer form, appropriate revisions will be
made to this Agreement to facilitate such issuance.
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times to the Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant Agent's
records up to date.]
Section 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding [$]______ of Warrant Securities (except as provided in Sections
2.3(c), 3.2 and 4.1) may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to [$]______ aggregate principal
amount of 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 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 _______, _____, the] [The
Warrant] exercise price of each Warrant is [$] ______. [During the period from
_________, ____, through and including _________, ____, the exercise price of
each Warrant will be [$]___________], plus [accrued amortization of the
original issue discount] [accrued interest] from _________, ____. [On
___________, ____, the exercise price of each Warrant will be [$]________. [if
applicable -- insert relevant amounts in applicable foreign currency, currency
unit or composite currency] During the period from _________, ____, through and
including _________, ____, the exercise price of each Warrant will be
[$]___________, plus [accrued amortization of the original issue discount]
[accrued interest] from _________, ____.] [In each case, the original issue
discount will be amortized at a ___% annual rate, computed on an annual basis
using a 360-day year consisting of twelve 30-day months]. Such purchase price
of Warrant Securities is referred to in this Agreement as the "Warrant Price."
[The original issue discount for each $1,000 principal amount of Warrant
Securities is [$]_____.]
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] [_________, ____,] and at or before 5 p.m. New York time on
__________________ (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] [if applicable -- insert relevant amounts in applicable foreign
currency, currency unit or composite currency] [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 and the Trustee under the
Indenture (if such Trustee is not the Warrant Agent) 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, pursuant to the Indenture, in
authorized denominations 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.* 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.
______________
* Subject to change in accordance with changes in tax laws and regulations.
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ARTICLE III.
Other Provisions Relating to Rights of
Holders of Warrant Certificates.
Section 3.1. No Rights as Warrant Securityholder 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.
ARTICLE IV.
Exchange and Transfer of Warrant Certificates.
Section 4.1. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately detachable - Upon]
[If Offered Securities with Warrants which
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are not immediately detachable -Prior to the Detachable Date, a Warrant
Certificate may be exchanged or transferred only together with the Offered
Securities to which the Warrant Certificate was initially attached and only for
the purpose of effecting or in conjunction with an exchange or transfer of such
Offered Securities. Prior to the Detachable Date, each transfer of the Offered
Securities [on the register of the Offered Securities] shall operate also to
transfer the related Warrant Certificates. After the Detachable Date upon]
surrender at the corporate trust office of the Warrant Agent [or ________],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such 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. 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
____________] 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. [If
Warrants which are not immediately detachable - Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company, the
Warrant Agent and with every subsequent holder of such Warrant Certificate that
until the transfer of the Warrant Certificate is registered on the books of the
Warrant Agent [or the registrar of the Offered Securities prior to the
Detachable Date], the Company and the Warrant Agent [or the registrar of the
Offered Securities prior to the Detachable Date] 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
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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.
ARTICLE V.
Concerning the Warrant Agent
Section 5.1. 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 5.2. 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 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) 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
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be 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
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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, 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. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee for any series of Debt Securities under the Indenture.
(f) No Liability for Interest. 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) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity 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 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) No Implied Obligations. 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.
Section 5.3. 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.
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(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 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 5.2(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
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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.
ARTICLE VI.
Miscellaneous.
Section 6.1. 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 and, provided further,
that the Company and the Warrant Agent may amend this Agreement in any manner
prior to the issuance of any Warrants hereunder. With the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrants affected, the Company and the Warrant Agent may modify or
amend any other term of this Agreement; provided, however, that no such
modification or amendment may be made without the consent of the holders
affected thereby if such proposed amendment would (i) shorten the period of
time during which the Warrants may be exercised; (ii) otherwise materially and
adversely affect the exercise rights of the holders of the Warrants; or (iii)
reduce the number of outstanding Warrants.
Section 6.2. 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 6.3. 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 Xxxxxx Industries, Inc., 000
Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: _______________
(or such other address as shall be specified in writing by the Warrant Agent or
by the Company).
Section 6.4. 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 6.5. 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,
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prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
Section 6.6. 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 6.7. 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 6.8. 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.
Section 6.9. 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 6.10. 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.
XXXXXX INDUSTRIES, INC.
By
Attest: -------------------------------------
----------------------------------
[NAME OF WARRANT AGENT],
as Warrant Agent
By
Attest: -------------------------------------
----------------------------------
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12
Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend of Warrants which are not immediately detachable: Prior to
___________, this Warrant Certificate cannot be transferred or exchanged unless
attached to a [Title of Offered Securities].]
Exercisable Only if Countersigned by the Warrant Agent as Provided Herein
XXXXXX INDUSTRIES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on ___________
[No.] Warrants
This certifies that ________ or registered assigns is the registered owner of
the above indicated number of Warrants, each Warrant entitling such owner to
purchase, at any time [after 5 p.m. New York time on , [date], and] on or
before 5 p.m. New York time on [date] [$] _____________ principal amount of
[Title of Warrant Securities] (the "Warrant Securities"), of Xxxxxx Industries,
Inc. (the "Company") issued and to be issued under the Indenture (as
hereinafter defined), on the following basis: [on [date] the exercise price of
each Warrant is [$] ; during the period from , [date] through and including
[date], the exercise price of each Warrant will be [$] , plus [accrued
amortization of the original issue discount] [accrued interest] from [date]; on
[date] the exercise price of each Warrant will be [$] ; during the period from
[date] through and including [date] , the exercise price of each Warrant will
be [$] , plus [accrued amortization of the original issue discount] [accrued
interest] from [date]; [in each case, the original issue discount will be
amortized at at __% annual rate, computed on an annual basis using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each $1,000 principal amount [if applicable, insert relevant
amount of foreign currency, currency units or composite currency] of Warrant
Securities is $____________.] 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] [if
applicable, express Warrant exercise price in applicable foreign currency,
currency unit or composite currency] [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).
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13
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of $______________ and any integral multiples thereof. 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.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________, ____, (the "Warrant
Agreement") between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ______________].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture dated as of ___________, ____, (the
"Indenture") between the Company and ________________, as trustee, and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of Warrant Securities are on file at the corporate trust
office of the trustee [and at ________________].
[If Offered Securities with Warrants which are not immediately
detachable - Prior to , 199__, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") 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 Securities. After such date, this [If Offered Securities with
Warrants which are immediately detachable - Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or _____] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable - 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 payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
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14
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of , .
--------- -----
XXXXXX INDUSTRIES, INC.
By
Attest: -------------------------------------
----------------------------------
Countersigned
----------------------------------
As Warrant Agent
By
--------------------------------
Authorized Signature
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15
[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
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 [$]_____________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of
Xxxxxx Industries, 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 Xxxxxx Industries, Inc., c/o [insert name and
address of Warrant Agent], in the amount of [$]_____________ 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 he 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 of Holder
----------------------------------
Signature
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16
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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17
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, including zip code, of assignee and Social Security
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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