Exhibit (4)(g)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
DEPOSIT GUARANTY CORP.
and
Warrant Agent
WARRANT AGREEMENT
Dated as of ________________________ , 1995
THIS WARRANT AGREEMENT, dated as of
, 1995 between DEPOSIT GUARANTY CORP., a
Mississippi business corporation (the "Company"), and
_________, a [bank or trust company] organized and
existing under the laws of , as
warrant agent (the "Warrant Agent").
WHEREAS, the Company has entered into an
Indenture dated as of , 1995 (the "Senior
Indenture") with SunTrust Bank, Atlanta, as trustee (the
"Senior Indenture Trustee"), providing for the issuance
by the Company from time to time, in one or more series,
of its unsecured debt which may be either senior
debentures, notes, bonds and/or other evidences of
indebtedness (the "Senior Debt Securities"); and
WHEREAS, the Company has entered into an
Indenture dated as of _______, 1995 (the "Subordinated
Indenture") with SunTrust Bank, Atlanta, as trustee (the
"Subordinated Indenture Trustee"), providing for the
issuance by the Company from time to time, in one or more
series, of subordinated debentures, notes, bonds, and/or
other evidences of indebtedness which may be convertible
at the option of a holder or the Company into Equity
Securities (as described herein) of the Company (the
"Subordinated Debt Securities"); and
WHEREAS, the Company has provided for the
offering, from time to time either separately or
together, of (i) shares of its Preferred Stock, no par
value (the "Preferred Stock") which may be convertible,
at the option of the holder, into Common Stock or any
other class or series of Equity Securities of the Company
or convertible at the option of the Company into Equity
Securities or debt securities of the Company, (ii)
depositary shares representing fractional interests in
shares of its Preferred Stock ("Depositary Shares"), and
(iii) Common Stock, no par value (the "Common Stock,"
together with the Preferred Stock and Depositary Shares,
the "Equity Securities"), in amounts, at prices, and on
terms to be determined at the time of the offering. The
Senior Debt Securities, Subordinated Debt Securities,
Preferred Stock, Depositary Shares, and Common Stock
offered hereby, are collectively referred to herein as
the "Securities"; and
WHEREAS, the Company proposes to issue from
time to time warrants (the "Warrants") representing the
right to purchase Senior Debt Securities, Subordinated
Debt Securities, Common Stock, Preferred Stock and
Depositary Shares, in any combination thereof (the
underlying securities purchasable through exercise of
Warrants, the "Underlying Securities"); and
WHEREAS, the Company has duly authorized the
execution and delivery of this Warrant Agreement to
provide for the issuance of Warrants to be exercisable at
such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
1.1 Issuance of Warrants. Warrants may be
issued from time to time, together with or separately
from the Securities (the "Offered Securities"). Prior to
the issuance of any Warrants, there shall be established
by or pursuant to a resolution or resolutions duly
adopted by the Company's Board of Directors or by any
committee thereof duly authorized to act with respect
thereto (a "Board Resolution"):
(a) the title and aggregate number of
such Warrants;
(b) whether such Warrants are to be
issued with any Offered Securities and, if so, the title,
aggregate principal amount or number of shares, ranking
and terms of any such Offered Securities; the number of
Warrants to be issued with each $1,000 principal amount
or 100 shares of such Offered Securities (or such other
principal amount and currency or number of shares of such
Offered Securities as is provided for in the Board
Resolution); and the date, if any, on and after which
such Warrants and such Offered Securities will be
separately transferable (the "Detachable Date"); if the
Warrants are offered for separate consideration, the
offering price and the currency for which the Warrants
may be purchased;
(c) the title, aggregate principal amount
or number of shares, ranking and terms of the Underlying
Securities that may be purchased upon exercise of such
Warrants;
(d) the time or times at which, or period
or periods during which, such Warrants may be exercised
and the final date on which such Warrants may be
exercised (the "Expiration Date");
(e) the principal amount or number of
shares of Underlying Securities that may be purchased
upon exercise of each Warrant, [and] the price, or the
manner of determining the price (the "Warrant Price"), at
which such principal amount or number of shares may be
purchased upon such exercise, and the currency and manner
of payment;
(f) the terms of any right to redeem such
Warrants; and
(g) any other terms of such Warrants not
inconsistent with the provisions of this Agreement.
1.2 Form and Execution of Warrant
Certificates. (a) The Warrants shall be evidenced by
warrant certificates (the "Warrant Certificates"), which
may be in registered or bearer form and otherwise shall
be substantially in such form or forms as are set forth
in Exhibit A hereto or as shall be established by or
pursuant to a Board Resolution. Each Warrant Certificate
whenever issued, shall be dated the date it is
countersigned by the Warrant Agent and may have such
letters, numbers or other identifying marks and such
legends or endorsements printed, lithographed or engraved
thereon as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or
regulation of any securities exchange on which the
Warrants may be listed, or to conform to usage, as the
officer of the Company executing the same may approve
(such officer's execution thereof to be conclusive
evidence of such approval). Each Warrant Certificate
shall evidence one or more Warrants.
(b) The Warrant Certificates shall be
signed in the name and on behalf of the Company by its
Chairman of the Board, a Vice-Chairman, its President or
a Vice President (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, and attested
by its Secretary or an Assistant Secretary. Such
signatures may be manual or facsimile signatures of the
present or any future holder of any such office 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.
(c) No Warrant Certificate shall be valid
for any purpose, and no Warrant evidenced thereby shall
be deemed issued or exercisable, until such Warrant
Certificate has been countersigned by the manual or
facsimile 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.
(d) In case any officer of the Company who
shall have signed any Warrant Certificate either manually
or by facsimile signature shall cease to be such officer
before the Warrant Certificate so signed shall have been
countersigned and delivered by the Warrant Agent, such
Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on
behalf of the Company by such person as, at the actual
date of the execution of such Warrant Certificate, shall
be the proper officer of the Company, although at the
date of the execution of this Agreement such person was
not such an officer.
1.3 Issuance and Delivery of Warrant
Certificates. At any time and from time to time after
the execution and delivery of this Agreement, the Company
may deliver Warrant Certificates executed by the Company
to the Warrant Agent for countersignature. Except as
provided in the following sentence, the Warrant Agent
shall thereupon countersign and deliver such Warrant
Certificates to or upon the written request of the
Company. Subsequent to the original issuance of a
Warrant Certificate evidencing Warrants, the Warrant
Agent shall countersign a new Warrant Certificate
evidencing such Warrants only if such Warrant Certificate
is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates evidencing
such Warrants or in connection with their transfer, as
hereinafter provided.
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 countersign and deliver,
temporary Warrant Certificates that 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 officer
executing such Warrant Certificates may determine, as
evidenced by such officer's execution of such Warrant
Certificates.
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 at ,]
without charge to the Holder, as defined in Section
1.6 hereof. Upon surrender for cancellation of any one
or more temporary Warrant Certificates, the Company shall
execute and the Warrant Agent shall countersign and
deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of
Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Warrant
Certificates.
1.5 Payment of Taxes. The Company will pay
all stamp and other duties, if any, to which this
Agreement or the original issuance of the Warrants or
Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
1.6 Definition of Holder. The term "Holder"
or "Holders," as used herein with reference to a Warrant
Certificate, shall mean [if registered Warrants -- the
person or persons in whose name such Warrant Certificate
shall then be registered as set forth in the Warrant
Register to be maintained by the Warrant Agent pursuant
to Section 4.1 for that purpose] [if bearer Warrants --
the bearer of such Warrant Certificate] or, in the case
of Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, [if
registered Offered Securities and Warrants that are not
then detachable -- the person or persons in whose name
the related Offered Securities shall be registered as set
forth in the security register of the related Offered
Securities] [if bearer Offered Securities and Warrants
that are not then detachable -- the bearer of the related
Offered Security], prior to the Detachable Date. [If
registered Offered Securities and Warrants that are not
then detachable -- The Company will, or will cause the
security registrar of any such Offered Securities to,
make available to the Warrant Agent at all times
[including on and after the Detachable Date, in the case
of Warrants originally issued with Offered Securities and
not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with
Warrants as may be necessary to keep the Warrant Register
up to date.)
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
2.1 Duration of Warrants. Each Warrant may be
irrevocably exercised in whole but not in part at the
time or times, or during the period or periods, provided
by or pursuant to the Board Resolution relating thereto
and specified in the Warrant Certificate evidencing such
Warrant. Each Warrant not exercised at or before 5:00
P.M., New York City time, on its Expiration Date shall
become void, and all rights of the Holder of such Warrant
thereunder and under this Agreement shall cease,
provided, however, that the Company reserves the right
to, and may, in its sole discretion, at any time and from
time to time, at such time or times as the Company so
determines, extend the Expiration Date of the Warrants
for such periods of time as it chooses; further provided
that in no case may the Expiration Date of the Warrants
(as extended) be extended beyond five years from the
Expiration Date set forth above. Whenever the Expiration
Date of the Warrants is so extended, the Company shall at
least 20 days prior to the then Expiration Date cause to
be mailed to the Warrant Agent and the registered Holders
of the Warrants in accordance with the provisions of
Section 6.5 hereof a notice stating that the Expiration
Date has been extended and setting forth the new
Expiration Date.
2.2 Exercise of Warrants. (a) The Holder of
a Warrant shall have the right, at its option, to
exercise such Warrant and, subject to subsection (f) of
this Section 2.2, purchase the principal amount or number
of shares of Underlying Securities provided for therein
at the time or times or during the period or periods
referred to in Section 2.1 and specified in the Warrant
Certificate evidencing such Warrant. Except as may be
provided in a Warrant Certificate, a Warrant may be
exercised by completing the form of election to purchase
set forth on the reverse side of the Warrant Certificate,
which shall be substantially in the form set forth in
Exhibit B hereto or as shall be established by or
pursuant to a Board Resolution, by duly executing and
delivering the same, together with payment in full of the
Warrant Price in the currency and manner of payment
specified in the Board Resolution, to the Warrant Agent
at the corporate trust office of the Warrant Agent [or at
________]. Except as may be provided in a Warrant
Certificate, the date on which such Warrant Certificate
and payment are received by the Warrant Agent as
aforesaid shall be deemed to be the date on which the
Warrant is exercised and the Underlying Securities
issued.
(b) As soon as practicable after the
exercise of a Warrant, the Company shall issue, pursuant
to the Senior Indenture or Subordinated Indenture, if
applicable, in authorized denominations to or upon the
order of the Holder of such Warrant, the Underlying
Securities to which such Holder is entitled, in [if
registered Underlying Securities - - fully registered
form] [if registered or unregistered Underlying
Securities - - the form required under such Senior
Indenture or Subordinated Indenture, if applicable, or in
the form otherwise required and, in the case of
Underlying Securities in registered form,] registered in
such name or names as may be directed by such Holder.
(c) If fewer than all of the Warrants
evidenced by a Warrant Certificate are exercised, the
Company shall execute, and an authorized officer of the
Warrant Agent shall countersign and deliver, a new
Warrant Certificate evidencing the number of Warrants
remaining unexercised.
(d) The Warrant Agent shall deposit all
funds received by it in Payment of the Warrant Price in
the account of the Company maintained with it for such
purpose and shall advise the Company by telephone by 5:00
P.M., New York City time, of each day on which a payment
of the Warrant Price for Warrants is received of the
amount so deposited in its account. The Warrant Agent
shall promptly confirm in writing to the Company such
telephone advice.
(e) The Warrant Agent shall, from time to
time, as promptly as practicable, advise the Senior
Indenture Trustee and the Subordinated Indenture Trustee,
if applicable, and the Company of (i) the number of
Warrants of each title exercised as provided herein, (ii)
the instructions of each Holder with respect to delivery
of the Underlying Securities to which such Holder is
entitled upon such exercise, (iii) the delivery of
Warrant Certificates evidencing the balance, if any, of
the Warrants remaining unexercised after such exercise,
and (iv) such other information as the Senior Indenture
Trustee or the Subordinated Indenture Trustee, if
applicable, or the Company shall reasonably require.
(f) The Company shall not be required to
pay any stamp or other tax or other governmental charge
that may be imposed in connection with any transfer
involved in the issuance of the Underlying Securities;
and in the event that any such transfer is involved, the
Company shall not be required to issue any Underlying
Securities (and the Holder's purchase of the Underlying
Securities upon the exercise of such Holder's Warrant
shall not be deemed to have been consummated) 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.
2.3 Common Share Warrant Adjustments. The
Warrant Price of a Warrant representing the right to
purchase Common Stock (a "Common Share Warrant"), as such
Warrant Price (the "Common Share Warrant Price") is set
forth in the Board Resolution, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall pay a
dividend or make a distribution on the underlying Common
Stock purchasable through exercise of the Common Share
Warrants (the "Underlying Common Stock") in Common Stock,
the Common Share Warrant Price in effect at the opening
of business on the day following the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution shall be adjusted by
multiplying such Common Share Warrant Price by a fraction
of which the numerator shall be the number of Common
Stock outstanding at the close of business on the record
date and the denominator shall be the sum of such number
of Common Stock and the total number of Common Stock
constituting such dividend or other distribution and the
resulting adjusted Common Share Warrant Price shall
become effective immediately after the opening of
business on the day following the record date, except as
provided in subsection (i) below.
(b) In case the Company shall subdivide
the outstanding Underlying Common Stock into a greater
number of Underlying Common Stock, the Common Share
Warrant Price in effect at the opening of business on the
day following the date upon which such subdivision
becomes effective shall be proportionately reduced, and
conversely, in case the Company shall combine the
outstanding Underlying Common Stock into a smaller number
of Underlying Common Stock, the Common Share Warrant
Price in effect at the opening of business on the day
following the date upon which such combination becomes
effective shall be proportionately increased, and the
resulting reduced or increased Common Share Warrant
Price, as the case may be, shall become effective
immediately after the opening of business on the day
following the date upon which such subdivision or
combination becomes effective.
(c) In case the Company shall issue
rights or warrants to all holders of Common Stock
entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for
or purchase Common Stock at a price per share less than
the current market price per Common Share (as defined for
purposes of this subparagraph (c) in subparagraph (f)
below), at the record date for the determination of
shareholders entitled to receive such rights or warrants,
the Common Share Warrant Price in effect after such
record date shall be determined by multiplying such
Common Share Warrant Price by a fraction, the numerator
of which shall be the number of Common Stock outstanding
on the record date for issuance of such rights or
warrants plus the number of Common Stock which the
aggregate offering price of the total number of Common
Stock so offered would purchase at such current market
price, and the denominator of which shall be the number
of Common Stock outstanding on the record date for
issuance of such rights or warrants plus the number of
additional Common Stock receivable upon exercise of such
rights or warrants. Such adjustment shall be made
successively whenever any such rights or warrants are
issued, and shall become effective immediately, except as
provided in subparagraph (i) below, after such record
date. In determining whether any rights or warrants
entitle the holders of Common Stock to subscribe for or
purchase Common Stock at less than such current market
price, and in determining the aggregate offering price of
such Common Stock, there shall be taken into account any
consideration received by the Company for such rights or
warrants plus the exercise price thereof, the value of
such consideration or exercise price, as the case may be,
if other than cash, to be determined by the Board of
Directors.
(d) In case the Company shall distribute
to all holders of Common Stock any shares of capital
stock of the Company (other than Common Stock) or
evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of
the Company or dividends payable in Common Stock) or
rights or warrants to subscribe for or purchase any of
its securities (excluding those rights or warrants
referred to in subparagraph (c) above) (any of the
foregoing being hereinafter in this subparagraph (d)
called the "Distributed Securities"), then, in each such
case, unless the Company elects to reserve such
Distributed Securities for distribution to the holders of
the Common Share Warrants upon the exercise of the Common
Share Warrants so that any such holder exercising Common
Share Warrants will receive upon such exercise, in
addition to the Underlying Common Stock to which such
holder is entitled, the amount and kind of such
Distributed Securities which such holder would have
received if such holder had, immediately prior to the
record date for the distribution of the Distributed
Securities, exercised its Common Share Warrants into
Underlying Common Stock, the Common Share Warrant Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Common Share Warrant Price
in effect immediately prior to the date of such
distribution by a fraction the numerator of which shall
be the current market price per Common Share (as defined
for purposes of this subparagraph (d) in subparagraph (f)
below) on the record date mentioned above less the then
fair market value (as determined by the Board of
Directors of the Company, whose determination shall, if
made in good faith, be conclusive) of the portion of the
Distributed Securities so distributed allocable to one
Common Share, and the denominator of which shall be the
then current market price per Common Share (determined as
provided in subparagraph (f) below); provided, however,
that in the event the then fair market value (as so
determined) of the portion of the Distributed Securities
so distributed applicable to one Common Share is equal to
or greater than the current market price per Common Share
(as defined in subsection (f) below) on the record date
mentioned above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of
Common Share Warrants shall have the right to receive the
amount and kind of Distributed Securities such holder
would have received had he exercised such Common Share
Warrant immediately prior to the record date for the
distribution of the Distributed Securities. Such
adjustment shall become effective immediately, except as
provided in subsection (i) below, after the record date
for the determination of stockholders entitled to receive
such distribution.
(e) If, pursuant to subparagraph (c) or
(d) above, the Common Share Warrant Price shall have been
adjusted because the Company has declared a dividend, or
made a distribution, on the outstanding Underlying Common
Stock in the form of any right or warrant to purchase
securities of the Company, or the Company has issued, any
such right or warrant, then, upon the expiration of any
such unexercised right or unexercised warrant, the Common
Share Warrant Price shall forthwith be adjusted to equal
the Common Share Warrant Price that would have applied
had such right or warrant never been declared,
distributed or issued.
(f) For the purposes of any computation
under subparagraph (c) above, the current market price
per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the thirty
consecutive Trading Days (as defined below) commencing
forty-five Trading Days before the date in question. For
the purpose of any computation under subparagraph (d)
above, the current market price per Common Share on any
date shall be deemed to be the average of the reported
last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales
price for each day (whether for purposes of subparagraph
(c) or subparagraph (d)) shall be the reported last sales
price, regular way, or, in case no sale takes place on
such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on
the New York Stock Exchange Composite Tape or, if such
Common Stock are not listed or admitted to trading on the
New York Stock Exchange at such time, on the principal
national securities exchange on which such Common Stock
are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange,
on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if such Common Stock are not quoted on
such National Market System, the average of the closing
bid and asked prices on such day in the over-the-counter
market as reported by NASDAQ or, if bid and asked prices
for the Common Stock on each such day shall not have been
reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in such
Common Stock selected for such purpose by the Board of
Directors of the Company or a committee thereof or, if no
such quotations are available, the fair market value of
such Common Share as determined by a New York Stock
Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Board of
Directors of the Company or a committee thereof. As used
in this Section 2.3, the term "Trading Day" with respect
to a Common Share means (x) if such Common Stock are
listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other
national securities exchange is open for business or (y)
if such Common Stock are quoted on the National Market
System of the NASDAQ, a day on which trades may be made
on such National Market System or (z) otherwise, any day
other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(g) No adjustment in the Common Share
Warrant Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in
such Common Share Warrant Price; provided, however, that
any adjustments which by reason of this subparagraph (g)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and
provided further that adjustment shall be required and
made in accordance with the provisions of this Section
2.3 (other than this subsection (g)) not later than such
time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Stock.
All calculations under this Section 2.3 shall be made to
the nearest cent or to the nearest .01 of a share, as the
case may be, with one-half cent and .005 of a share,
respectively, being rounded upward. Anything in this
Section 2.3 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Common
Share Warrant Price, in addition to those required by
this subparagraph (g), as it in its discretion shall
determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights
or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends)
hereafter made by the Company to its shareholders shall
not be taxable.
(h) Whenever the Common Share Warrant
Price is adjusted as herein provided, the Company shall
promptly file with the transfer agent a certificate,
signed by its Chairman of the Board, a Vice-Chairman, its
President or a Vice President (an "Adjustment
Certificate"), setting forth the Common Share Warrant
Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which
Adjustment Certificate shall be conclusive evidence of
the correctness of such adjustment; provided, however,
that the failure of the Company to file such Adjustment
Certificate shall not invalidate any corporate action by
the Company.
(i) In any case in which this Section 2.3
provides that an adjustment shall become effective
immediately after a record date for an event, the Company
may defer until the occurrence of such event (x) issuing
to the holder of any Common Share Warrant converted after
such record date and before the occurrence of such event
the additional shares of Underlying Common Stock issuable
upon such exercise by reason of the adjustment required
by such event over and above the Underlying Common Stock
issuable upon such exercise before giving effect to such
adjustment and (y) paying to such holder any amount of
cash in lieu of any fractional share.
(j) Whenever the Common Share Warrant
Price is adjusted as provided in this Section 2.3, the
Company shall, as promptly as practicable thereafter,
cause to be mailed to each Holder of Common Share
Warrants at its then registered address by first-class
mail, postage prepaid, a notice of such adjustment of the
Common Share Warrant Price setting forth such adjusted
Common Share Warrant Price and the effective date of such
adjusted Common Share Warrant Price; provided, however,
that the failure of the Company to give such notice shall
not invalidate any corporate action by the Company.
(k) Whenever there shall be any change in
the Common Share Warrant Price hereunder, then there
shall be an adjustment (to the nearest hundredth of a
share) in the number of Common Stock purchasable upon
exercise of this Common Share Warrant, which adjustment
shall become effective at the time such change in the
Common Share Warrant Price becomes effective and shall be
made by multiplying the number of Common Stock
purchasable upon exercise of this Common Share Warrant
immediately before such change in the Common Share
Warrant Price by a fraction the numerator of which is the
Common Share Warrant Price immediately before such change
and the denominator of which is the Common Share Warrant
Price immediately after such change. The Common Share
Warrant Price per Common Share shall be adjusted and
readjusted from time to time as provided in this Section
2.3 and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof
is required by this Section 2.3.
(l) The form of Warrant Certificate
evidencing Common Share Warrants (a "Common Share Warrant
Certificate") need not be changed because of any
adjustment made pursuant to this Section 2.3, and Common
Share Warrant Certificates issued after such adjustment
may state the same Common Share Warrant Price and the
same number of Common Stock as are stated in the Common
Share Warrant Certificates initially issued pursuant to
this Agreement. The Company, however, may at any time in
its sole discretion make any change in the form of Common
Share Warrant Certificate that it may deem appropriate to
reflect such adjustment and that does not otherwise
affect the substance thereof, and any Common Share
Warrant Certificate thereafter issued or countersigned,
whether in exchange or substitution for an outstanding
Common Share Warrant Certificate or otherwise, may be in
the form as so changed.
2.4 Reservation of Shares. Prior to the
issuance of any Common Share Warrants or any Warrants
representing the right to purchase shares of Preferred
Stock ("Preferred Stock Warrants") or Depositary Shares
("Depositary Share Warrants") there shall have been
reserved, and the Company shall at all times keep
reserved, out of its authorized but unissued Common Stock
and Preferred Stock or its issued Common Stock or shares
of Preferred Stock held in treasury, or both, a number of
shares sufficient to provide for the exercise of the
Common Share Warrant Certificates and Warrant
Certificates evidencing Preferred Stock Warrants and
Depositary Share Warrants.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS
3.1 No Rights as Holder of Underlying Security
Conferred by Warrants or Warrant Certificates. No
Warrant or Warrant Certificate shall entitle the Holder
to any of the rights of a holder of Underlying
Securities, including, without limitation, the right to
receive the payment of principal of, or premium, if any,
on or interest, dividends or distributions of any kind,
if any on, Underlying Securities, the right to exercise
any voting rights, or the right to enforce any of the
covenants in the Senior Indenture or Subordinated
Indenture, if applicable.
3.2 Lost, Stolen, Destroyed or Mutilated
Warrant Certificates. Upon receipt by the Company and
the Warrant Agent of evidence reasonably satisfactory to
them of the ownership of and the loss, theft, destruction
or mutilation of any Warrant Certificate and of indemnity
(other than in connection with any mutilated Warrant
Certificates surrendered to the Warrant Agent for
cancellation) reasonably satisfactory to them, in the
absence of notice to the Company or the Warrant Agent
that the Warrant Certificate has been acquired by a bona
fide purchaser, the Company shall execute, and the
Warrant Agent shall countersign and deliver, in exchange
for or in lieu of each lost, stolen, destroyed or
mutilated Warrant Certificate, a new Warrant Certificate
evidencing a like number of Warrants of the same title.
Upon the issuance of a new Warrant Certificate under this
Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection
therewith 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 a
contractual obligation of the Company, whether or not
such 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,
evidencing Warrants of the same title. 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 lost, stolen, destroyed or
mutilated Warrant Certificates.
3.3 Holder of Warrants May Enforce Rights.
Notwithstanding any other provisions of this Agreement, a
Holder, without the consent of the Warrant Agent, the
Senior Indenture Trustee or the Subordinated Indenture
Trustee, if applicable, the holder of any Underlying
Securities or the Holder of any other Warrant, may, on
its own behalf and for its own benefit, enforce, and may
institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect
of, its right to exercise its Warrant or Warrants in the
manner provided in this Agreement and its Warrant
Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS
4.1 [Warrant Register;] Exchange and Transfer
of Warrants. [If registered Warrants - - The Warrant
Agent shall maintain, at its corporate trust office [or
at __________], a register (the "Warrant Register") in
which, upon the issuance of Warrants, or on and after the
Detachable Date in the case of Warrants not separately
transferable prior thereto, and, subject to such
reasonable regulations as the Warrant Agent may
prescribe, it shall register Warrant Certificates and
exchanges and transfers thereof. The Warrant Register
shall be in written form or in any other form capable of
being converted into written form within a reasonable
time.
Except as provided in the following sentence,
upon surrender at the corporate trust office of the
Warrant Agent [or at _____________], Warrant Certificates
may be exchanged for one or more other Warrant
Certificates of different denominations evidencing the
same aggregate number of Warrants of the same title, or
may be transferred in whole or in part. A Warrant
Certificate evidencing Warrants that are not then
transferable separately from the Offered Security with
which they were issued may be exchanged or transferred
prior to its Detachable Date only together with such
Offered Security and only for the purpose of effecting,
or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date,
[if registered Offered Securities and Warrants,] - - each
exchange or transfer of such Offered Security on the
security register of the Offered Securities shall operate
also to exchange or transfer the related Warrants] [if
bearer Offered Securities and Warrants -- an exchange or
transfer of possession of the related Offered Security
shall operate also to exchange or transfer the related
Warrants]. [If registered Warrants - - A transfer shall
be registered upon surrender of a Warrant Certificate to
the Warrant Agent at its corporate trust office or at any
other office indicated in the Warrant Prospectus for
transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for
transfer, all in form satisfactory to the Company and the
Warrant Agent.] Whenever a Warrant Certificate is
surrendered for exchange or transfer, the Warrant Agent
shall countersign and deliver to the person or persons
entitled thereto one or more Warrant Certificates duly
executed by the Company, as so requested. The Warrant
Agent shall not be required to effect any exchange or
transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant. All
Warrant Certificates issued upon any exchange or transfer
of a Warrant Certificate shall be the valid obligations
of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as
the Warrant Certificate surrendered for such exchange or
transfer.
No service charge shall be made for any
exchange or transfer of Warrants, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any such exchange or transfer, in
accordance with Section 2.2(f) hereof.
4.2 Treatment of Holders of Warrants. Every
Holder of a Warrant, by accepting the Warrant Certificate
evidencing the same, consents and agrees with the
Company, the Warrant Agent and with every other Holder of
Warrants of the same title that the Company and the
Warrant Agent may treat the Holder of a Warrant
Certificate (or, if the Warrant Certificate is not then
detachable, the Holder of the related Offered Security)
as the absolute owner of such Warrant for all purposes
and as the person entitled to exercise the rights
represented by such Warrant, any notice to the contrary
notwithstanding.
4.3 Cancellation of Warrant Certificates. In
the event that the Company shall purchase, redeem or
otherwise acquire any Warrants after the issuance
thereof, the Warrant Certificate or Certificates
evidencing such Warrants shall thereupon be delivered to
the Warrant Agent and be cancelled by it. The Warrant
Agent shall also cancel any Warrant Certificate
(including any mutilated Warrant Certificate) delivered
to it for exercise, in whole or in part, or for exchange
[if registered Warrants - - or transfer] [if Warrant
Certificates are issued in bearer form -- except that
Warrant Certificates delivered to the Warrant Agent in
exchange for Warrant Certificates of other denominations
may be retained by the Warrant Agent for reissue].
Warrant Certificates so cancelled shall be delivered by
the Warrant Agent to the Company from time to time, or
disposed of in accordance with the instructions of the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
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
set forth herein; and _______________ hereby accepts such
appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it 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 any Warrant
Certificate are subject to and governed by the terms and
provisions hereof.
5.2 Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations set forth
herein 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 shall be
subject:
(a) Compensation and Indemnification.
The Company agrees to promptly pay the Warrant Agent the
compensation set forth in Exhibit C hereto 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
(including the reasonable costs and expenses of defending
against any claim of liability) incurred without
negligence or bad faith on the part of the Warrant Agent
arising out of or in connection with its appointment as
Warrant Agent hereunder.
(b) Agent for the Company. In acting
under this Agreement and in connection with any Warrant
Certificate, 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 Holder.
(c) Counsel. The Warrant Agent may
consult with counsel satisfactory to it, 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 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, suffered 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) Officer's Certificate. Whenever in
the performance of its duties hereunder the Warrant Agent
shall reasonably deem it necessary that any fact or
matter be proved or established by the Company prior to
taking, suffering or omitting any action hereunder, the
Warrant Agent may (unless other evidence in respect
thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate
signed by the Chairman of the Board, a Vice-Chairman, the
President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the
Company (an "Officer's Certificate") delivered by the
Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant
Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents,
and the Warrant Agent shall not be answerable or
accountable for any act, default, neglect or misconduct
of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct;
provided, however, that reasonable care shall have been
exercised in the selection and continued employment of
such attorneys and agents.
(g) Certain Transactions. The Warrant
Agent, and any officer, director or employee thereof, may
become the owner of, or acquire any interest in, any
Warrant, with the same rights that he, she or it would
have if it were not the Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may engage or
be interested in any financial or other transaction with
the Company and may serve on, or as depositary, trustee
or agent for, any committee or body of holders of
Underlying Securities or other obligations of the Company
as if it were not the Warrant Agent. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent
from acting as Senior Indenture Trustee or Subordinated
Indenture Trustee.
(h) No Liability for Interest. The
Warrant Agent shall not be liable 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, except as otherwise agreed with the
Company.
(i) No Liability for Invalidity. The
Warrant Agent shall incur no liability with respect to
the validity of this Agreement (except as to the due
execution hereof by the Warrant Agent) or any Warrant
Certificate (except as to the countersignature thereof by
the Warrant Agent).
(j) No Responsibility for Company
Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations
contained herein (except as to such statements or
recitals as describe the Warrant Agent or action taken or
to be taken by it) or in any Warrant Certificate (except
as to the Warrant Agent's countersignature on such
Warrant Certificate), all of which recitals and
representations are made solely by the Company.
(k) No Implied Obligations. The Warrant
Agent shall be obligated to perform only such duties as
are specifically set forth herein, and no other duties or
obligations shall be implied. The Warrant Agent shall
not be under any obligation to take any action hereunder
that may subject it to 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 Warrant
Certificate countersigned 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 issuance or exercise of Warrants. 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 any
Warrant Certificate or in case of the receipt of any
written demand from a Holder 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 6.3 hereof, to make any
demand upon the Company.
5.3 Resignation and Removal; Appointment of
Successor. (a) The Company agrees, for the benefit of
the Holders of the Warrants, that there shall at all
times be a Warrant Agent hereunder until all the Warrants
are no longer exercisable.
(b) The Warrant Agent may at any time
resign as such by giving written notice to the Company,
specifying the date on which such resignation shall
become effective; provided that such date shall not be
less than 90 days after the date on which such notice is
given, unless the Company agrees to accept a shorter
notice. The Warrant Agent may be removed at any time by
the filing with it of an instrument in writing signed on
behalf of the Company and specifying such removal and the
date when it shall become effective. Notwithstanding the
two preceding sentences, such resignation or removal
shall take effect only upon the appointment by the
Company, as hereinafter provided, 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, and State thereof or the District of Columbia,
authorized under the laws of such jurisdiction to
exercise corporate trust powers and having at the time of
its appointment as Warrant Agent a combined capital and
surplus (as set forth in its most recent published report
of condition) of at least $50,000,000) and the acceptance
of such appointment by such successor 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
Title 11 of the United States 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 for 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, conservator or custodian for it
or for 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
Title 11 of the United States 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 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 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, [if
registered Warrants - - the Warrant Register and] all
monies, securities and other property on deposit with or
held by such predecessor (together with any books and
records relating thereto), as Warrant Agent hereunder.
(e) The Company shall cause notice of the
appointment of any successor Warrant Agent to be [if
registered Warrants - - mailed by first-class mail,
postage, prepaid, to each Holder at its address appearing
on the Warrant Register or, in the case of Warrants that
are issued with Offered Securities and cannot then be
transferred separately therefrom, on the security
register of the Offered Securities] [if bearer warrants -
- published in an Authorized Newspaper (as defined in
Section 101 of the Senior Indenture and the Subordinated
Indenture) in The City of New York [and in such other
city or cities as may be specified by the Company] at
least twice within any seven-day period]. Such notice
shall set forth the name and address of the successor
Warrant Agent. Failure to give any notice provided for
in this Section 5.3(e), or any defect therein, shall not,
however, affect the legality or validity of the
appointment of the successor Warrant Agent.
(f) Any person into which the Warrant
Agent may be merged or converted, or any corporation with
which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all
of its assets and business, shall be the successor
Warrant Agent under this Agreement without the execution
or filing of any paper, the giving of any notice to
Holders or any further act on the part of the parties
hereto, provided that such person be qualified as
aforesaid.
5.4 Office. The Company will maintain an
office or agency where Warrant Certificates may be
presented for exchange, [if registered Warrants - -
transfer] or exercise. The office initially designated
for this purpose shall be the corporate trust office of
the Warrant Agent at________________________.
ARTICLE VI
MISCELLANEOUS
6.1 Reclassification, Consolidation, Merger,
Sale or Conveyance. (a) With respect to any issuance of
Common Share Warrants, Preferred Stock Warrants, and/or
Depositary Share Warrants (collectively, the "Equity
Warrants"), in case any of the following shall occur
while any Equity Warrants are outstanding: (i) any
reclassification or changes of the outstanding Common
Stock, shares of Preferred Stock, and/or Depositary
Shares (collectively, the "Underlying Equity Securities")
(other than a change in par value, or from par value to
no par value, or as a result of a subdivision or
combination of the Underlying Equity Securities); or (ii)
any consolidation, merger or combination of the Company
with or into another corporation as a result of which
holders of Underlying Equity Securities shall be entitled
to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such
Underlying Equity Securities; or (iii) any sale,
conveyance, transfer or lease of the property or assets
of the Company as, or substantially as, an entirety to
any other entity as a result of which holders of
Underlying Equity Securities shall be entitled to receive
stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying
Equity Securities; then the Company, or such successor or
assuming corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or
otherwise so that the holders of the Equity Warrants then
outstanding shall have the right at any time thereafter,
upon exercise of such Equity Warrants, to receive the
kind and amount of shares of stock and other securities
and property or assets receivable upon such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease as would
be received by a holder of the number of shares of
Underlying Equity Securities issuable upon exercise of
such Equity Warrant immediately prior to such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease, and, in
the case of a consolidation, merger, combination, sale,
conveyance, transfer or lease where the Company is not
the successor corporation, the successor or assuming
corporation shall succeed to and be substituted for the
Company with the same effect as if it had been named
herein as the Company, the Company shall thereupon be
relieved of any further obligation hereunder or under the
Equity Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or
assuming 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 Equity Warrants issuable
hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Underlying
Equity Securities in its own name, in fulfillment of its
obligations to deliver Underlying Equity Securities upon
exercise of the Equity Warrants. All the Equity Warrants
so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Equity Warrants
theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Equity
Warrants had been issued at the date of the execution
hereof. In any case of any such reclassification,
change, consolidation, merger, combination, sale,
conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made
in the Equity Warrants thereafter to be issued as may be
appropriate.
(b) With respect to any issuance of
Warrants to purchase Senior Debt Securities and/or
Subordinated Debt Securities (collectively, the "Debt
Warrants"), to the extent permitted in the Senior
Indenture and/or the Subordinated Indenture, the Company
may consolidate with, merge into or combine with another
corporation or other entity, or sell, convey, transfer or
lease all or substantially all of its properties and
assets to any other corporation or other entity. In case
of any such consolidation, merger, combination, sale,
conveyance, transfer or lease where the Company is not
the successor corporation, the successor or assuming
corporation shall succeed to and be substituted for the
Company with the same effect as if it had been named
herein as the Company, the Company shall thereupon be
relieved of any further obligation hereunder or under the
Debt Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or
assuming 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 Debt Warrants issuable
hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver the Senior Debt
Securities and/or Subordinated Debt Securities
purchasable through the exercise of the Debt Warrants
(collectively, the "Underlying Debt Securities") in its
own name, in fulfillment of its obligations to deliver
Underlying Debt Securities upon exercise of the Debt
Warrants. All the Debt Warrants so issued shall in all
respects have the same legal rank and benefit under this
Agreement as the Debt Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as
though all of such Debt Warrants had been issued at the
date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance)
may be made in the Debt Warrants thereafter to be issued
as may be appropriate.
(c) The Warrant Agent may receive a
written opinion of legal counsel as conclusive evidence
that any such reclassification, change, consolidation,
merger, combination, sale, conveyance, transfer or lease,
as the case may be, complies with the provisions of this
Section 6.1.
6.2 Supplements and Amendments. (a) The
Company and the Warrant Agent may from time to time
supplement or amend this Agreement without the approval
of any Holder in order to cure any ambiguity, to correct
or supplement any provision contained herein that may be
defective or inconsistent with any other provision
herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company
and the Warrant Agent may deem necessary or desirable and
that shall not adversely affect the interests of the
Holders. Every Holder of Warrants, whether issued before
or after any such supplement or amendment, shall be bound
thereby. Promptly after the effectiveness of any
supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as
provided in Section 5.3(e) hereof, to the Holders
affected thereby, setting forth in general terms the
substance of such supplement or amendment.
(b) The Company and the Warrant Agent may
modify or amend this Agreement and the Warrant
Certificates with the consent of the Holders of not fewer
than a majority in number of the then outstanding
unexercised Warrants affected by such modification or
amendment, for any purpose; provided, however, that no
such modification or amendment that shortens the period
of time during which the Warrants may be exercised, or
otherwise materially and adversely affects the exercise
rights of the Holders or reduces the percentage of
Holders of outstanding Warrants the consent of which is
required for modification or amendment of this Agreement
or the Warrants, may be made without the consent of each
Holder affected thereby.
6.3 Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any
notice or demand addressed to the Company by a Holder
pursuant to the provisions of this Agreement or a Warrant
Certificate (other than notices relating to the exchange
([if registered Warrants - - transfer] or exercise of
warrants), the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.4 Addresses. Any communications from the
Company to the Warrant Agent with respect to this
Agreement shall be directed to _________________,
Attention: , any communications
from the Warrant Agent to the Company with respect to
this Agreement shall be directed to Deposit Guaranty
Corp., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx,
00000, Attention: [ ], with a copy to the Secretary
(or such other address as shall be specified in writing
by the Warrant Agent or by the Company), telephone number
(601) 354- and any communications from the Company
or the Warrant Agent to the Senior Indenture Trustee or
the Subordinated Indenture Trustee with respect to this
Agreement shall be directed to SunTrust Bank, Atlanta,
X.X. Xxx 0000, Xxxxxxx 00000, Attention: .
The Company shall inform the Warrant Agent of any change
in the address of the Senior Indenture Trustee or the
Subordinated Indenture Trustee as soon as practicable
after it learns of any such change.
6.5 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.
6.6 Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a
prospectus or prospectuses, including any prospectus
supplements, relating to the Underlying Securities
deliverable upon exercise of any outstanding Warrants
(each a "Prospectus"), and the Warrant Agent agrees to
deliver a Prospectus to the Holder of a Warrant prior to
or concurrently with the delivery of the Underlying
Securities issued upon such exercise.
6.7 Obtaining Governmental Approvals. The
Company will take such action as may be necessary to
obtain and keep effective any and all permits, consents
and approvals of governmental agencies and authorities,
and will make all filings under federal and state
securities laws (including, without limitation, the
maintenance of the effectiveness of a registration
statement in respect of the Underlying Securities under
the Securities Act of 1933), as may be or become
requisite in connection with the issuance, sale, transfer
and delivery of Warrants and Warrant Certificates, the
exercise of Warrants and the issuance, sale and delivery
of Underlying Securities issued upon exercise of
Warrants.
6.8 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 any
right, remedy or claim under or by reason of this
Agreement or any covenant, condition, stipulation,
promise or agreement herein; and all covenants,
conditions, stipulations, promises and agreements herein
shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and their respective
successors and the Holders.
6.9 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.
6.10 Counterparts. This Agreement may be
executed in one or more counterparts and, when a
counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and
the same agreement.
6.11 Inspection of Agreement. A copy of this
Agreement shall be available during business hours at the
office of the Warrant Agent for inspection by a Holder.
The Warrant Agent may require such Holder to submit its
Warrant Certificate for inspection prior to making such
copy available.
6.12 Acceleration of Warrants by the
Corporation. (a) At any time on or after
_________________, the Corporation shall have the right
to accelerate any or all Warrants at any time by causing
them to expire at the Close of Business on the day next
preceding a specified date (the "Acceleration Date"), if
the Market Price (as hereinafter defined) of the
Underlying Security or Securities equals or exceeds
percent ( %) of the then effective warrant
exercise price, as if no changes in such Warrant Price
had been made pursuant to Section 2.3, on any twenty (20)
Trading Days (as hereinafter defined) within a period of
thirty (30) consecutive Trading Days ending no more than
five (5) Trading Days prior to the date on which the
Corporation gives notice to the Warrant Agent of its
election to accelerate the Warrants.
(b) "Market Price" for each Trading Day
shall be the last reported closing price regular way (or,
if no such price is reported, the average of the reported
closing bid and asked prices regular way) reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange, or if the Underlying
Security is not listed or admitted to trading on such
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the principal national
securities exchange on which the Underlying Security is
listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ, or such other
system then in use, or if on any such date the Underlying
Securities are not quoted by any such organization, the
average of the closing bid and asked prices as furnished
by any New York Stock Exchange firm selected from time to
time by the Company for the purpose. For the purposes of
this Section 6.12, "Trading Day" shall be each Monday
through Friday other than any day on which securities are
not traded in the system or on the exchange that is the
principal market for the Common Stock, as determined by
the Board of Directors of the Company.
(c) In the event of an acceleration of
less than all of the Warrants, the Warrant Agent shall
select the Warrants to be accelerated by lot, pro rata or
in such other manner as it deems, in its discretion, to
be fair and appropriate.
(d) Notice of an acceleration specifying
the Acceleration Date shall be sent by mailing first
class, postage prepaid, to each registered Holder of a
Warrant Certificate representing a Warrant accelerated at
such Holder's address appearing on the [Warrant Register]
not more than sixty (60) days nor less than thirty (30)
days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than twenty (20)
days, and no less than ten (10) days, prior to the
mailing of notice to registered Holders of Warrants
pursuant to this Section, by publication at least once in
a newspaper of general circulation in the City of New
York, New York.
(e) Any Warrant accelerated may be
exercised until 3:30 P.M. New York City time on the
business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in
Section 2.2.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DEPOSIT GUARANTY CORP.
[Seal]
By
Attest: Name:
Title:
Name:
Title:
[WARRANT AGENT]
[Seal]
By
Attest: Name:
Title:
Name:
Title:
Exhibit A to Warrant Agreement
[FORM OF REGISTERED WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
[Form of Legend if Prior to __________ this
Offered Securities with Warrant Certificate cannot
Warrants which are not be transferred or exchanged
immediately detachable. unless attached to a [Title of
Offered Securities].]
[Form of Legend if Prior to __________
Warrants are not Warrants evidenced by
immediately exercisable. this Warrant Certificate
cannot be exercised.]
No. CUSIP No. [________]
WARRANT CERTIFICATE
representing
[up to _________] Warrants
Expiring [_______________________]
DEPOSIT GUARANTY CORP.
This certifies that [___________________] or
registered assigns is the registered holder of [________]
Warrants (the "Warrants") or such lesser amount as is
indicated in the records of [name of Warrant Agent], as
Warrant Agent. Each Warrant entitles the beneficial
owner thereof, subject to the provisions contained herein
and in the Warrant Agreement referred to below, [subject
to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined]* to
purchase, at any time [after 5:00 P.M., New York City
time, on , 19 and on or before 5:00 P.M.,
New York City time, on , 19__], [aggregate
principal amount or number of shares of [title of
Underlying Securities]] of Deposit Guaranty Corp. (the
"Company") on the following basis: during the period
from ___________, 19__ through and including
_____________, 19__ the exercise price of each Warrant
will be _______; during the period from ______, 19 __,
through and including ________, 19__, the exercise price
of each Warrant will be ________ (the "Warrant Price"),
subject to such adjustments as are provided in Section
2.3 of the Warrant Agreement (as defined below). Other
than as provided in Section 2.3 of the Warrant Agreement,
no adjustment shall be made for any dividends on any
Common Stock issuable upon exercise of any Warrant. The
Holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back
hereof and by paying in full [in lawful money of the
United States of America] [in cash or by certified check
or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available]
[next day] Funds, the Warrant Price for each Warrant
___________________
* Include if Warrants are issued with Offered
Securities which are not immediately detachable.
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
successor as warrant agent, which is, on the date hereof,
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).
The term "Holder" as used herein shall mean
[**, prior to (the
"Detachable Date"), the registered owner of the Company's
(title of Offered Securities] (the "Offered Securities")
to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name
at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for
that purpose. The Warrants may be exercised at or prior
to [ P.M.], New York City time, on any New York
Business Day from their date of issuance until [__ P.M.],
New York City time, on [ , 19__] (the
"Expiration Date"). [Not fewer than [ ] Warrants may
be exercised by or on behalf of any one Holder on any one
day.] The term "New York Business Day," as used herein,
means any day other than a Saturday or Sunday or a day on
which commercial banks in The City of New York are
required or authorized to be closed.
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 all Holders of the
Warrants represented by Warrant Certificates consent by
acceptance hereof. Copies of the Warrant Agreement are
on file at the principal corporate trust office of the
Warrant Agent in New York City.
Capitalized terms included herein but not
defined herein have the meanings assigned thereto in the
Warrant Agreement.
[***Prior to , 19 ,
this Warrant Certificate may be exchanged or transferred
only together with the 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 Security. After
such date, this Warrant may be registered when this
Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or at __________________] by
the registered owner or such owner's assigns, in person
or by an attorney duly authorized in writing, in the
_______________________
** Include if Warrants are issued with Offered
Securities which are not immediately detachable.
*** Include if Warrants are issued with Offered
Securities which are not immediately detachable.
manner and subject to the limitations provided in the
Warrant Agreement.
Except as provided in the immediately preceding
paragraph, 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 [or at
_______] for Warrant Certificates representing the same
aggregate number of Warrants.]
[****Transfer of this Warrant may be registered
when this Warrant Certificate is surrendered at the
corporate trust office of the Warrant Agent by the
registered owner or such owner's assigns, in person or by
an attorney duly authorized in writing, in the manner and
subject to the limitations provided in the Warrant
Agreement.
After countersignature by the Warrant Agent and
prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at
] for Warrant Certificates representing
the same number of Warrants.]
This Warrant Certificate shall not entitle the
Holder hereof to any of the rights of a holder of
Underlying Securities, including, without limitation, the
right to receive the payment of principal of, or premium,
if any, on or interest, dividends or distributions of any
kind, if any on, Underlying Securities, the right to
exercise any voting rights or the right to enforce any of
the covenants in the Senior Indenture or Subordinated
Indenture, if applicable.
Subject to the terms of the Warrant Agreement,
upon due presentment for registration of transfer of this
Warrant Certificate at the principal corporate trust
office of the Warrant Agent in New York City or at any
other office indicated in the Prospectus Supplement
accompanying the sale of this Warrant, the Company shall
execute and the Warrant Agent shall countersign and
deliver in the name of the designated transferee a new
Warrant Certificate of like tenor and representing a like
number of unexercised Warrants as evidenced by this
Warrant Certificate at the time of such registration of
transfer which shall be issued to the designated
transferee in exchange for this Warrant Certificate,
subject to the limitations provided in the Warrant
Agreement, without charge.
This Warrant Certificate and the Warrant
Agreement are subject to amendment as provided in the
Warrant Agreement.
_____________________
**** Include if Warrants are issued alone or with Offered
Securities which are immediately detachable.
This Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the
Warrant Agent.
The validity, interpretation and performance of
this Warrant Certificate and the terms and provisions
hereof shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated as of [ ].
DEPOSIT GUARANTY CORP.
By:
[title]
[SEAL]
Attest:
[title]
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:
[title]
Exhibit B to Warrant Agreement
Form of Warrant Exercise Notice
[NAME OF WARRANT AGENT], as Warrant Agent
Attention:
[Address]
[Facsimile: ]
[Telephone: ]
Telex: ]
Re: Exercise of Deposit Guaranty Corp. Warrants Expiring
[ ] ["Warrants"]
The undersigned hereby irrevocably elects to
exercise Warrants, evidenced by
this Warrant Certificate, to purchase [aggregate amount
or number of shares of [title of Underlying Securities]]
of Deposit Guaranty Corp. and represents that the
undersigned has tendered payment for such [title of
Underlying Securities] [in lawful money of the United
States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available]
[next day] funds to the order of Deposit Guaranty Corp.,
c/o [name of Warrant Agent], [ ,
New York, New York ], in the amount of
in accordance with the terms hereof. The undersigned
requests that [aggregate principal amount or number of
shares of [title of Underlying Securities]] be in [fully
registered form] [in the form required under the Senior
Indenture or the Subordinated Indenture, if applicable,
or in the form otherwise required] in the authorized
denominations, registered in such names and delivered all
as specified in accordance with the instructions set
forth below.
If the number of Warrants exercised is less
than all of the Warrants evidenced hereby, the
undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated: Name
Address
(Insert social security or
other identifying number
of holder of Warrant)
Signature Guaranteed Signature
(Signature must
conform in all
respects to name of
holder of Warrant as
specified on the
Warrant Certificate
and must bear a
signature guarantee
by a bank, trust
company or member
broker of the New
York, Midwest or
Pacific Stock
Exchange)
The Warrant(s) evidenced hereby may be
exercised at the following addresses:
By hand at
By mail at
[Instructions as to form and delivery of
[Underlying Securities] and, if applicable, Warrant
Certificates evidencing unexercised Warrants -- complete
as appropriate.]
Exhibit C to Warrant Agreement
[Compensation of Warrant Agent]
TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . 5
1.1 Issuance of Warrants . . . . . . . . . . 5
1.2 Form and Execution of Warrant
Certificates . . . . . . . . . . . . . . 6
1.3 Issuance and Delivery of Warrant
Certificates . . . . . . . . . . . . . . 7
1.4 Temporary Warrant Certificates . . . . . 8
1.5 Payment of Taxes . . . . . . . . . . . . 8
1.6 Definition of Holder . . . . . . . . . . 8
ARTICLE II
DURATION AND EXERCISE OF WARRANTS . . . . . . . . . . 9
2.1 Duration of Warrants . . . . . . . . . . 9
2.2 Exercise of Warrants . . . . . . . . . . 10
2.3 Common Share Warrant Adjustments . . . . 11
2.4 Reservation of Shares . . . . . . . . . . 19
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS . . . . . . . . . . . . . . . . . . . . . 19
3.1 No Rights as Holder of Underlying
Security Conferred by Warrants or
Warrant Certificates . . . . . . . . . . 19
3.2 Lost, Stolen, Destroyed or Mutilated
Warrant . . . . . . . . . . . . . . . . . 19
3.3 Holder of Warrants May Enforce Rights . . 20
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS . . . . . . . . . . 20
4.2 Treatment of Holders of Warrants. . . . 22
4.3 Cancellation of Warrant Certificates. . 22
ARTICLE V
CONCERNING THE WARRANT AGENT . . . . . . . . . . . . 22
5.1 Warrant Agent. . . . . . . . . . . . . 22
5.2 Conditions of Warrant Agent's
Obligations. . . . . . . . . . . . . . 23
5.3 Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . 26
5.4 Office. . . . . . . . . . . . . . . . . 28
ARTICLE VI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 28
6.1 Reclassification, Consolidation, Merger,
Sale or Conveyance. . . . . . . . . . . 28
6.2 Supplements and Amendments. . . . . . . 31
6.3 Notices and Demands to the Company and
Warrant Agent. . . . . . . . . . . . . . 31
6.4 Addresses. . . . . . . . . . . . . . . . 31
6.5 Applicable Law. . . . . . . . . . . . . 32
6.6 Delivery of Prospectus. . . . . . . . . 32
6.7 Obtaining Governmental Approvals. . . . 32
6.8 Persons Having Rights Under Warrant
Agreement. . . . . . . . . . . . . . . . 32
6.9 Headings. . . . . . . . . . . . . . . . . 33
6.10 Counterparts . . . . . . . . . . . . . . 33
6.12 Acceleration of Warrants by the
Corporation. . . . . . . . . . . . . . . 33
