WARRANT AGREEMENT
Dated as of
August 11, 1997
between
PRICE COMMUNICATIONS CELLULAR HOLDINGS INC.
PRICE COMMUNICATIONS CORPORATION
and
BANK OF MONTREAL TRUST COMPANY,
as the Warrant Agent
-------------------------------------------------------------
Warrants for
Common Stock of
Price Communications Corporation
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TABLE OF CONTENTS
Page
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ARTICLE I. Definitions............................................. 2
SECTION 1.1 Definitions................................... 2
SECTION 1.2 Other Definitions............................. 5
SECTION 1.3 Rules of Construction......................... 6
ARTICLE II. Warrant Certificates.................................... 6
SECTION 2.1 Form of Warrant Certificates.................. 6
SECTION 2.2 Legends....................................... 7
SECTION 2.3 Execution and Delivery of Warrant Certificates 8
SECTION 2.4 Loss or Mutilation............................ 9
ARTICLE III. Exercise Terms......................................... 9
SECTION 3.1 Exercise Price................................ 9
SECTION 3.2 Exercise Period............................... 10
SECTION 3.3 Expiration.................................... 10
SECTION 3.4 Manner of Exercise............................ 10
SECTION 3.5 Issuance of Warrant Shares.................... 11
SECTION 3.6 Fractional Warrant Shares..................... 11
SECTION 3.7 Reservation of Warrant Shares................. 11
SECTION 3.8 Compliance with Law........................... 12
ARTICLE IV. Antidilution Provisions................................. 13
SECTION 4.1 Changes in Common Stock....................... 13
SECTION 4.2 Cash Dividends and Other Distributions........ 13
SECTION 4.3 Rights Issue.................................. 14
SECTION 4.4 Combination; Liquidation...................... 15
SECTION 4.5 Other Events.................................. 16
SECTION 4.6 Superseding Adjustment........................ 17
SECTION 4.7 Minimum Adjustment............................ 17
SECTION 4.8 Notice of Adjustment.......................... 18
SECTION 4.9 Notice of Certain Transactions................ 18
SECTION 4.10 Adjustment to Warrant Certificate............ 19
ARTICLE V. Transferability......................................... 19
SECTION 5.1 Transfer and Exchange of Warrants............. 19
SECTION 5.2 Registration of Transfers and Exchanges....... 21
SECTION 5.3 Surrender of Warrant Certificates............. 22
ARTICLE VI. Company's Special Right of Repurchase................... 23
SECTION 6.1................................................ 23
ARTICLE VII. Warrant Agent.......................................... 24
SECTION 7.1 Appointment of Warrant Agent................. 24
SECTION 7.2 Rights and Duties of Warrant Agent........... 24
SECTION 7.3 Individual Rights of Warrant Agent........... 26
SECTION 7.4 Warrant Agent's Disclaimer................... 26
SECTION 7.5 Compensation and Indemnity................... 26
SECTION 7.6 Successor Warrant Agent...................... 27
ARTICLE VIII. Miscellaneous.......................................... 29
SECTION 8.1 Company Resales.............................. 29
SECTION 8.2 SEC Reports and Other Information............ 29
SECTION 8.3 Persons Benefitting.......................... 29
SECTION 8.4 Rights of Holders............................ 29
SECTION 8.5 Amendment.................................... 29
SECTION 8.6 Notices...................................... 30
SECTION 8.7 Governing Law................................ 31
SECTION 8.8 Successors................................... 31
SECTION 8.9 Multiple Originals........................... 31
SECTION 8.10 Table of Contents............................ 32
SECTION 8.11 Severability................................. 32
SECTION 8.12 Further Assurances........................... 32
WARRANT AGREEMENT (this "Agreement") dated as of August 8,
1997, between PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC. ("Holdings"),
PRICE COMMUNICATIONS CORPORATION, a New York corporation (together with its
permitted successors and assigns, the "Company"), and Bank of Montreal
Trust Company, as Warrant Agent (together with its permitted successors and
assigns, the "Warrant Agent").
WHEREAS, the Company, Holdings and Price Communications
Cellular, Inc. ("Cellular") have entered into a purchase agreement, dated July
31, 1997, with NatWest Capital Markets Limited ("NatWest") and Xxxxxxxxxxx
Xxxxxxx Securities, Inc. (together with NatWest, the "Purchasers"), in which
Holdings has agreed to sell to the Purchasers 153,400 Units each consisting of
$1,000 aggregate principal amount at maturity of 13 1/2% Senior Secured
Discount Notes due 2007 (the "Notes") of Holdings and 3.44 Warrants (the
"Warrants"), each Warrant to purchase one share of Common Stock, par value
$.01 per share (the "Common Stock"), of the Company. The Notes will be issued
under an indenture dated as of August 11, 1997 (the "Indenture"), between
Cellular, Holdings and Bank of Montreal Trust Company, as trustee (the
"Trustee"). Each Warrant entitles the person in whose name the Warrant is
registered (each a "Holder"), upon exercise to receive from the Company, as
adjusted as provided herein, one fully paid and nonassessable share of Common
Stock at the Exercise Price (as defined in Section 3.1 herein); and
WHEREAS, the Notes will be detachable from the Warrants and
upon re-sale by the Purchasers will be immediately separated.
WHEREAS, the Company further desires the Warrant Agent to act on
behalf of the Company in connection with the issuances, division, transfer,
exchange, substitution and exercise of the Warrants, and the Warrant Agent is
willing to so act.
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the holders of Warrants:
ARTICLE I.
Definitions
SECTION 1.1 Definitions. "Affiliate" of any specified Person
means (i) any other Person which, directly or indirectly, is controlling or
controlled by or under direct or indirect common control with such specified
Person, or (ii) any other Person who is a director or executive officer (A) of
such Person, (B) of any subsidiary of such specified Person, or (C) of any
Person described in clause (i) above. For purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Affiliate shall also mean any beneficial owner of shares
representing 10% or more of the total voting power of the Voting Stock (on a
fully diluted basis) of the Company or warrants to purchase such Voting Stock
(whether or not currently exercisable) and any Person who would be an
Affiliate of any such beneficial owner pursuant to the first sentence hereof.
"Board" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Business Day" means each day that is not a Saturday, a Sunday
or a day on which banking institutions are not required to be open in New York
City or in the city where the Warrant Agent's principal corporate trust office
is located.
"Certificated Warrants" means certificated Warrants in fully
registered definitive form.
"Change of Control" shall have the meaning provided in the
Indenture provided that the Corporate Change shall not be deemed to be a
Change of Control.
"Combination" means an event in which the Company consolidates
with, merges with or into, or sells all or substantially all its property and
assets to another Person provided that the Corporate Change shall not be
deemed to be a Combination.
"Common Stock" has the meaning ascribed thereto in the preamble
to this Agreement.
"Corporate Change" shall mean a corporate change, subject to
approval of the Company's shareholders, pursuant to which the Company would
become a wholly owned subsidiary of the Holding Company in a transaction in
which each share of capital stock and each option and warrant to purchase
capital stock of the Company (including the Warrants) outstanding immediately
prior to the consummation of such Corporate Change will be automatically
converted into a share of capital stock, option or warrant, as the case may
be, in each case with identical rights and an identical economic interest in
the Holding Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC pursuant thereto.
"Extraordinary Cash Dividend" means that portion, if any, of the
aggregate amount of all dividends or distributions (including by way of tender
or exchange offer to any of its equity holders) paid by the Company on its
Common Stock in any fiscal year that exceeds $1.0 million.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a willing buyer, neither
of whom is under undue pressure or compulsion to complete the transaction.
Fair Market Value will be determined, except as otherwise provided, (i) if
such property or asset has a Fair Market Value of less than $5 million, by any
Officer of the Company or (ii) if such property or asset has a Fair Market
Value in excess of $5 million, by a majority of the Board of Directors of the
Company and evidenced by a Board Resolution, dated within 30 days of the
relevant transaction.
"Holding Company" shall mean a newly organized holding company
with a substantially identical certificate of incorporation, by-laws and
capital structure to those of the Company immediately prior to the
consummation of the Corporate Change.
"Institutional Accredited Investor" shall mean an institutional
"accredited investor" (as defined in rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Issue Date" means the date on which Warrants are initially
issued.
"Market Value" means, in respect of one share of the Common
Stock of the Company (i) the average closing price per share for such Common
Stock for the thirty consecutive trading days immediately prior to the
Triggering Date on the New York Stock Exchange or such other United States
national securities exchange on which such Common Stock is listed and
principally traded or, if such securities are not listed on any national
securities exchange, as reported by the Nasdaq Stock Market, Inc. or, if not
so reported by the Nasdaq Stock Market, Inc., the average of the high bid and
low asked quotations for one share of such Common Stock as reported by the
National Quotations Bureau Incorporated or similar organization or (ii) if the
closing price for such Common Stock cannot be calculated in the manner
specified in clause (i) at the relevant time, the Fair Market Value of one
share of such Common Stock (without giving effect to any discount for lack of
liquidity or to the fact that shares of such Common Stock may not be
registered under the Exchange Act) as of the Business Day immediately
preceding the Triggering Date as determined in an opinion letter delivered and
addressed to the Warrant Agent by an independent appraisal firm appointed by
the Company (or by a majority of the holders of the Warrants or related Warrant
Shares, as the case may be, if the Company fails to appoint one) reasonably
acceptable to the Warrant Agent.
"Merger" shall have the meaning provided in the Indenture.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Executive Vice
President or the Treasurer of the Company.
"Parent" means any Person who beneficially owns, directly or
indirectly, all of the Voting Stock of the Company.
"Person" means any individual, corporation, company
(including any limited liability company), partnership, joint venture,
trust, unincorporated organization, government or any agency or political
subdivision thereof.
"Redeemable Stock" means, with respect to any Person, any
capital stock that by its terms (or by the terms of any security into which it
is convertible or exchangeable) or otherwise (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may
become redeemable or repurchasable at the option of the holder thereof, in
whole or in part, or (iii) is convertible or exchangeable for indebtedness.
"Repurchase Price" means $8.00 per Warrant, subject to
adjustment as provided herein.
"Restricted Warrant" means a Restricted Certificated Warrant.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Triggering Date" shall mean the date on which a holder
exercises any Warrant pursuant to Article III.
"Voting Stock" means all classes of capital stock of such
corporation then outstanding and normally entitled to vote in the election of
directors.
"Warrant Shares" means the Common Stock (and other securities)
issuable upon the exercise of the Warrants.
SECTION 1.2 Other Definitions.
Defined in
Term Section
"Certificate Register".................. 5.1
"Company"............................... Recitals
"Exercise Price"........................ 3.1
"Expiration Date"....................... 3.2
"Holders"............................... Recitals
"Repurchase Date"....................... 6.1
"Successor Company"..................... 4.4(a)
"Warrants".............................. Recitals
"Warrant Agent"......................... Recitals
"Warrant Certificates".................. 2.1
SECTION 1.3 Rules of Construction. Unless the text otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including, without limitation; and
(v) words in the singular include the plural and words in
the plural include the singular.
ARTICLE II.
Warrant Certificates
SECTION 2.1 Form of Warrant Certificates. Certificates
representing the Warrants (the "Warrant Certificates") shall be in registered
form only and substantially in the form attached hereto as Exhibit A. The
Warrant Certificates shall be dated the date on which countersigned by the
Warrant Agent and shall have such insertions as are appropriate or required or
permitted by this Agreement and may have such letters, numbers or other marks
of identification and such legends and endorsements typed, stamped, printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation pursuant
thereto, or to conform to usage. The Company shall approve the form of the
Warrant Certificates and any notation, legend or endorsement on them.
The terms and provisions contained in the form of the Warrant
Certificate annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Agreement.
The definitive Warrant Certificates shall be typed, printed,
lithographed or engraved or produced by any combination of these methods, all
as determined by the officer of the Company executing such Warrant
Certificates, as evidenced by such officer's execution of such Warrant
Certificates.
Pending the preparation of definitive Warrant Certificates,
temporary Warrant Certificates may be issued, which may be printed,
lithographed, typewritten, mimeographed or otherwise produced, and which will
be substantially of the tenor of the definitive Warrant Certificates in lieu
of which they are issued.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the
temporary Warrant Certificates shall be exchangeable for definitive
Warrant Certificates upon surrender of the temporary Warrant Certificates
to the Warrant Agent, without charge to the Holder. Until so exchanged the
temporary Warrant Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Warrant Certificates.
SECTION 2.2 Legends. Unless and until the Warrants and the
Warrant Shares are included in an effective registration statement under the
Securities Act, each Warrant Certificate (and all Warrant Certificates issued
in exchange therefor or substitution thereof) and each certificate
representing the Warrant Shares shall bear a legend in substantially the
following form (with any appropriate modification for the Warrant Shares):
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (B) IT IS
NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON
THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO PRICE COMMUNICATIONS CORPORATION (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE, BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY), (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) AND, IN EACH
CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A PROVISION REQUIRING
THE WARRANT AGENT TO REFUSE TO REGISTER TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
SECTION 2.3 Execution and Delivery of Warrant Certificates.
Warrant Certificates evidencing Warrants to purchase initially an aggregate
of up to 527,696 Warrant Shares may be executed, on or after the Issue
Date, by the Company and delivered to the Warrant Agent for
countersignature, and the Warrant Agent shall thereupon countersign and
deliver such Warrant Certificates upon the written order and at the
direction of the Company to the purchasers thereof on the date of issuance.
The Warrant Agent is hereby authorized to countersign and deliver Warrant
Certificates as required by this Section 2.3 or by Section 2.4, 3.4, 5.3 or
5.4.
The Warrant Certificates shall be executed on behalf of the
Company by its President or any Executive Vice President or any Vice
President, either manually or by facsimile signature printed thereon. The
Warrant Certificates shall be countersigned manually by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In case any
officer of the Company whose signature shall have been placed upon any of the
Warrant Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery thereof, such
Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent
and issued and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company.
SECTION 2.4 Loss or Mutilation. Upon receipt by the Company
and the Warrant Agent of evidence satisfactory to them of the ownership and
the loss, theft, destruction or mutilation of any Warrant Certificate and
of indemnity satisfactory to them and (in the case of mutilation) upon
surrender and cancellation thereof, then, in the absence of notice to the
Company or the Warrant Agent that the Warrants represented thereby have
been acquired by a bona fide purchaser, the Company shall execute and the
Warrant Agent shall countersign and deliver to the registered Holder of the
lost, stolen, destroyed or mutilated Warrant Certificate, in exchange for
or in lieu thereof, a new Warrant Certificate of the same tenor and for a
like aggregate number of Warrants. Upon the issuance of any new Warrant
Certificate under this Section 2.4, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and other expenses (including the reasonable
fees and expenses of the Warrant Agent and of counsel to the Company) in
connection therewith. Every new Warrant Certificate executed and delivered
pursuant to this Section 2.4 in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute a contractual obligation of the
Company, whether or not the allegedly lost, stolen or destroyed Warrant
Certificates shall be at any time enforceable under applicable law, 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 2.4 are exclusive
and shall preclude (to the extent lawful) all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
ARTICLE III
Exercise Terms
SECTION 3.1 Exercise Price. Each Warrant shall initially
entitle the Holder thereof, subject to adjustment pursuant to the terms of
this Agreement, to purchase one share of Common Stock for an exercise price of
$0.01 per share of Common Stock (the "Exercise Price"). The Exercise Price
will be payable at the Holder's' option by certified or cashier's check
payable to the order of the Company, or by any combination thereof. The
Exercise Price may be paid, without a payment in cash or check being required,
for such number of Warrant Shares equal to the product of (i) the number of
Warrant Shares for which such Warrant is exercisable as of the date of
exercise (if the Exercise Price were being paid in cash) and (ii) the Cashless
Exercise Ratio. The Cashless Exercise Ratio shall equal a fraction the
numerator of which is the Market Value per share of Common Stock on the date
of exercise minus the Exercise Price per share as of the date of exercise and
the denominator of which is the Market Value per share on the date of
exercise.
SECTION 3.2 Exercise Period. (a) Subject to the terms and
conditions set forth herein, the Warrants will be exercisable upon the earlier
to occur of (i) the consummation of the Merger (provided that if the Merger
does not occur prior to December 31, 1997, the Warrants will be subject to
special redemption as provided in Section 6.1) and (ii) the occurrence of a
Change of Control (the "Exercise Date").
(b) No Warrant shall be exercisable after 5:00 p.m., New
York City time, on August 1, 2007 (the "Expiration Date").
SECTION 3.3 Expiration. A Warrant shall terminate and become
void as of the earlier of (i) 5:00 p.m., New York City time on the Expiration
Date or (ii) the date such Warrant is exercised. The Company shall give
notice not less than 90, and not more than 120, days prior to the Expiration
Date to the Holders of all then outstanding Warrants to the effect that the
Warrants will terminate and become void as of the close of business on the
Expiration Date; provided, however, that notwithstanding that the Company may
fail to give notice as provided in this Section 3.3, the Warrants will
terminate and become void on the Expiration Date.
SECTION 3.4 Manner of Exercise. Warrants may be exercised upon
surrender to the Warrant Agent of the Warrant Certificates, together with the
form of election to purchase Common Stock on the reverse thereof duly filled
in and signed by the Holder thereof. Subject to Section 3.2, the rights
represented by the Warrants shall be exercisable at the election of the
Holders thereof either in full at any time or from time to time in part and in
the event that a Warrant Certificate is surrendered for exercise in respect of
less than all the Warrant Shares purchasable on such exercise at any time
prior to the expiration of the Exercise Period a new Warrant Certificate
exercisable for the remaining Warrant Shares will be issued. The Warrant
Agent shall countersign and deliver the required new Warrant Certificates, and
the Company, at the Warrant Agent's request, shall supply the Warrant Agent
with Warrant Certificates duly signed on behalf of the Company for such
purpose.
SECTION 3.5 Issuance of Warrant Shares. Upon the surrender of
Warrant Certificates, as set forth in Section 3.4, the Warrant Agent will
requisition from the Company, and the Company shall issue and cause the
transfer agent for the Common Stock ("Stock Transfer Agent") to countersign
and deliver to or upon the written order of the Holder and in such name or
names as the Holder may designate, a certificate or certificates for the
number of full Warrant Shares so purchased upon the exercise of such Warrants
or other securities or property to which it is entitled, registered or
otherwise, to the Person or Persons entitled to receive the same, together
with cash as provided in Section 3.6 in respect of any fractional Warrant
Shares otherwise issuable upon such exercise. Such certificate or
certificates shall be deemed to have been issued and any Person so designated
to be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrant Certificates and
payment of the per share Exercise Price, as aforesaid.
SECTION 3.6 Fractional Warrant Shares. The Company shall
not be required to issue fractional Warrant Shares on the exercise of
Warrants. If more than one Warrant shall be exercised in full at the same
time by the same Holder, the number of full Warrant Shares which shall be
issuable upon such exercise shall be computed on the basis of the aggregate
number of Warrant Shares purchasable pursuant thereto. If any fraction of
a Warrant Share would, except for the provisions of this Section 3.6, be
issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the Market Value for one
Warrant Share on the trading day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole
cent.
SECTION 3.7 Reservation of Warrant Shares. The Company
shall at all times keep reserved out of its authorized shares of Common
Stock, a number of shares of Common Stock sufficient to provide for the
exercise of all outstanding Warrants. The registrar for the Common Stock
(the "Registrar") shall at all times until the expiration of the Exercise
Period reserve such number of authorized shares as shall be required for
such purpose. The Company will keep a copy of this Agreement on file with
its Stock Transfer Agent. The Company will supply such Stock Transfer
Agent with duly executed stock certificates for such purpose and will
itself provide or otherwise make available any cash which may be payable as
provided in Section 3.6. The Company will furnish to such Stock Transfer
Agent a copy of all notices of adjustments and certificates related thereto
transmitted to each Holder.
Before taking any action which would cause an adjustment
pursuant to Article IV to reduce the Exercise Price below the then par value
(if any) of the Common Stock, the Company shall take any and all corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and nonassessable shares
of Common Stock at the Exercise Price as so adjusted.
The Company covenants that all shares of Common Stock which may
be issued upon exercise of Warrants will, upon issue, be fully paid,
nonassessable, free of preemptive rights, free from all taxes and free from
all liens, charges and security interests, created by or through the Company,
with respect to the issue thereof.
SECTION 3.8 Compliance with Law. (a) Notwithstanding
anything in this Agreement to the contrary, in no event shall a Holder be
entitled to exercise a Warrant, unless (i) a registration statement filed
under the Securities Act in respect of the issuance of the Warrant Shares
is then effective or (ii) in the opinion of counsel addressed to the
Warrant Agent and the Company an exemption from the registration
requirements is available under the Securities Act for the issuance of the
Warrant Shares (and the delivery of any other securities for which the
Warrants may at the time be exercisable) at the time of such exercise.
(b) If any shares of Common Stock required to be reserved for
purposes of exercise of Warrants require, under any other Federal or state law
or applicable governing rule or regulation of any national securities exchange,
registration with or approval of any governmental authority, or listing on any
such national securities exchange before such shares may be issued upon
exercise, the Company will in good faith and as expeditiously as possible
endeavor also to cause such shares to be duly registered or approved by such
governmental authority or listed on the relevant national securities exchange,
as the case may be.
ARTICLE IV.
Antidilution Provisions
SECTION 4.1 Changes in Common Stock. In the event that at any
time or from time to time the Company shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its Common Stock or the right to
receive or convert into additional shares of Common Stock in each case, (ii)
subdivide its outstanding shares of Common Stock into a larger number of
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock, or (iv) increase or decrease
the number of shares of Common Stock outstanding by reclassification of its
Common Stock, then the number of shares of Common Stock purchasable upon
exercise of each Warrant immediately prior to the happening of such event
shall be adjusted so that, after giving effect to such adjustment, the holder
of each Warrant shall be entitled to receive the number of shares of Common
Stock upon exercise of such Warrant that such holder would have owned or have
been entitled to receive had such Warrants been exercised immediately prior to
the happening of the events described above (or, in the case of a dividend or
distribution of Common Stock, immediately prior to the record date therefor).
An adjustment made pursuant to this Section 4.1 shall become effective
immediately after the effective date, retroactive to the record date therefor
in the case of a dividend or distribution in shares of Common Stock, and shall
become effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
SECTION 4.2 Cash Dividends and Other Distributions. In
case at any time or from time to time the Company shall distribute to
holders of Common Stock (i) any dividend or other distribution (including
any dividend or distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of cash,
evidences of its indebtedness, assets, shares of its capital stock or any
other properties or securities or (ii) any options, warrants or other
rights to subscribe for or purchase any of the foregoing (other than, in
the case of clauses (i) and (ii) above, (x) any dividend or distribution
described in Section 4.1, (y) any rights, options, warrants or securities
described in Section 4.3 and (z) a cash dividend that is not an
Extraordinary Cash Dividend), then the number of shares of Common Stock
purchasable upon the exercise of each Warrant immediately after the record
date for the determination of stockholders entitled to receive such
dividend or distribution shall be increased to a number determined by
multiplying the number of shares of Common Stock purchasable upon the
exercise of such Warrant immediately prior to such record date for any such
dividend or distribution by a fraction, the numerator of which shall be the
Market Value per share of Common Stock as of the record date for such
distribution plus the fair market value (as determined by the Board of
Directors of the Company acting in good faith, whose determination shall be
evidenced by a board resolution, dated within 30 days of the relevant
record date) as of such record date of such Extraordinary Cash Dividend,
the evidences of indebtedness, shares of capital stock or other assets,
properties or securities, or any options, warrants or rights to subscribe
for or purchase any of the foregoing, to be dividended or distributed in
respect of one share of Common Stock, and the denominator of which shall be
such Market Value per share of Common Stock as of such record date; and the
Exercise Price shall be adjusted to a number determined by dividing the
Exercise Price immediately prior to such record date by the above fraction.
Such adjustments shall be made, and shall only become effective, whenever
any dividend or distribution is made; provided, however, that the Company
is not required to make an adjustment pursuant to this Section 4.2 if at
the time of such distribution the Company makes the same distribution to
Holders of Warrants as it makes to holders of Common Stock pro rata based
on the number of shares of Common Stock for which such Warrants are
exercisable (whether or not currently exercisable). No adjustment shall be
made pursuant to this Section 4.2 which shall have the effect of decreasing
the number of shares of Common Stock purchasable upon exercise of each
Warrant or increasing the Exercise Price.
SECTION 4.3 Rights Issue. In the event that at any time or
from time to time the Company shall issue rights, options or warrants to
acquire, or securities convertible or exchangeable into, Common Stock to
all holders of Common Stock, entitling such holders to subscribe for or
purchase shares of Common Stock at a price per share that is less than the
Market Value per share of Common Stock as of the record date for the
determination of stockholders entitled to receive such rights, options,
warrants or securities, the number of shares of Common Stock purchasable
upon the exercise of each Warrant immediately after such record date shall
be determined by multiplying the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately prior to such record
date by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on a fully-diluted basis as of the close of
business on the record date for the issuance of such rights, options,
warrants or securities plus the number of additional shares of Common Stock
offered for subscription or purchase or into which such securities are
convertible or exchangeable, and the denominator of which shall be the
number of shares of Common Stock outstanding on a fully-diluted basis as of
the close of business on the record date for the issuance of such rights,
options, warrants or securities plus the total number of shares of Common
Stock which the aggregate consideration expected to be received by the
Company upon the exercise, conversion or exchange of such rights, options,
warrants or securities (as determined by the Board of Directors of the
Company acting in good faith, whose determination shall be evidenced by a
board resolution) would purchase at the Market Value per share of Common
Stock as of the record date. In the event of any such adjustment, the
Exercise Price shall be adjusted to a number determined by dividing the
Exercise Price immediately prior to such date of issuance by the
aforementioned fraction. Such adjustment shall be made, and shall only
become effective, whenever such rights, options, warrants or securities are
issued. No adjustment shall be made pursuant to this Section 4.3 which
shall have the effect of decreasing the number of shares of Common Stock
purchasable upon exercise of each Warrant or of increasing the Exercise
Price. Notwithstanding the foregoing no adjustment will be made pursuant
to this Section 4.3 on account of any dividend or interest reinvestment
plan or any employee stock purchase plan providing for the purchase of
shares of Company Common Stock at a discount from the Market Value;
provided, however, that such plans shall have a valid business purpose.
SECTION 4.4 Combination; Liquidation. (a) Except as
provided in Section 4.4(b), in the event of a Combination, the Holders
shall have the right to receive upon exercise of the Warrants such number
of shares of capital stock or other securities or property which such
Holder would have been entitled to receive upon or as a result of such
Combination had such Warrant been exercised immediately prior to such
event. Unless paragraph (b) is applicable to a Combination or in the event
the Corporate Change is consummated, the Company shall provide that the
surviving or acquiring Person (the "Successor Company") in such Combination
or Corporate Change will enter into an agreement with the Warrant Agent
confirming the Holders' rights pursuant to this Agreement and providing for
adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article IV. The provisions of this
Section 4.4(a) shall similarly apply to successive Combinations involving
any Successor Company.
(b) In the event of (i) a Combination where consideration to the
holders of Common Stock in exchange for their shares is payable solely in cash,
or (ii) the dissolution, liquidation or winding-up of the Company, then the
holders of the Warrants will be entitled to receive distributions on an equal
basis with the holders of Common Stock or other securities issuable upon
exercise of the Warrants, as if the Warrants had been exercised immediately
prior to such event.
In case of any Combination described in this Section 4.4(b),
the surviving or acquiring Person and, in the event of any dissolution,
liquidation or winding-up of the Company, the Company shall deposit promptly
with the Warrant Agent the funds, if any, necessary to pay to the holders of
the Warrants the amounts to which they are entitled as described above. After
such funds and the surrendered Warrant Certificates are received, the Warrant
Agent shall make payment to the Holders by delivering a check in such amount
as is appropriate (or, in the case of consideration other than cash, such
other consideration as is appropriate) to such Person or Persons as it may be
directed in writing by the holders surrendering such Warrants.
SECTION 4.5 Other Events. (a) If any event occurs as to which
the foregoing provisions of this Article IV are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board,
fairly and adequately protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions,
in accordance with such essential intent and principles, as shall be
reasonably necessary, in the good faith opinion of such Board, to protect such
purchase rights as aforesaid, but in no event shall any such adjustment have
the effect of increasing the Exercise Price or decreasing the number of shares
or aggregate percentage of Common Stock subject to purchase upon exercise of
this Warrant.
(b) In the event the Corporate Change is consummated: (i) the
Holding Company will comply with the second sentence of Section 4.4(a) and
will enter into an agreement with the Warrant Agent whereby it will expressly
assume all of the obligations of the Company in connection with the Warrants
and this Agreement and (ii) the Warrants will be automatically converted into
warrants with identical rights and an identical economic interest in the
Holding Company.
SECTION 4.6 Superseding Adjustment. Upon the expiration of
any rights, options, warrants or conversion or exchange privileges which
resulted in the adjustments pursuant to this Article IV, if any thereof
shall not have been exercised, the number of Warrant Shares purchasable
upon the exercise of each Warrant shall be readjusted as if (A) the only
shares of Common Stock issuable upon exercise of such rights, options,
warrants, conversion or exchange privileges were the shares of Common
Stock, if any, actually issued upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (B) shares of Common
Stock actually issued, if any, were issuable for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance,
sale or grant of all such rights, options, warrants or conversion or
exchange privileges whether or not exercised and the Exercise Price shall
be readjusted inversely; provided, however, that no such readjustment shall
(except by reason of an intervening adjustment under Section 4.1) have the
effect of decreasing the number, or aggregate percentage, of Warrant Shares
purchasable upon the exercise of each Warrant or increasing the Exercise
Price by an amount in excess of the amount of the adjustment initially made
in respect of the issuance, sale or grant of such rights, options, warrants
or conversion or exchange privileges.
SECTION 4.7 Minimum Adjustment. The adjustments required by
the preceding Sections of this Article IV shall be made whenever and as
often as any specified event requiring an adjustment shall occur, except
that no adjustment of the Exercise Price or the number of shares of Common
Stock purchasable upon exercise of Warrants that would otherwise be
required shall be made (except in the case of a subdivision or combination
of shares of Common Stock, as provided for in Section 4.1) unless and until
such adjustment either by itself or with other adjustments not previously
made increases or decreases by at least 1% of the number of shares of
Common Stock purchasable upon exercise of Warrants immediately prior to the
making of such adjustment. Any adjustment representing a change of less
than such minimum amount shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Article IV and
not previously made, would result in a minimum adjustment. For the purpose
of any adjustment, any specified event shall be deemed to have occurred at
the close of business on the date of its occurrence. In computing
adjustments under this Article IV, fractional interests in Common Stock
shall be taken into account to the nearest one-hundredth of a share.
SECTION 4.8 Notice of Adjustment. Whenever the Exercise
Price or the number of shares of Common Stock and other property, if any,
purchasable upon exercise of Warrants is adjusted, as herein provided, the
Company shall deliver to the Warrant Agent a certificate of a firm of
independent accountants selected by the Board (who may be the regular
accountants employed by the Company) setting forth, in reasonable detail,
the event requiring the adjustment and the method by which such adjustment
was calculated (including a description of the basis on which the Board of
Directors of the Company determined the fair market value of any evidences
of indebtedness, other securities or property or warrants or other
subscription or purchase rights), and specifying the Exercise Price and the
number of shares of Common Stock purchasable upon exercise of Warrants
after giving effect to such adjustment. The Company shall promptly cause
the Warrant Agent to mail a copy of such certificate to each Holder in
accordance with Section 8.6. The Warrant Agent shall be entitled to rely
on such certificate and shall be under no duty or responsibility with
respect to any such certificate, except to exhibit the same from time to
time, to any Holder desiring an inspection thereof upon reasonable notice
during business hours. The Warrant Agent shall not at any time be under
any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Exercise Price or the number
of shares of Common Stock or other stock or property, purchasable on
exercise of the Warrants, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed in making
such adjustment or the validity or value of any shares of Common Stock.
SECTION 4.9 Notice of Certain Transactions. In the event that
the Company shall propose (a) to pay any dividend payable in securities of any
class to the holders of its Common Stock or to make any other distribution to
the holders of its Common Stock, (b) to offer the holders of its Common Stock
rights to subscribe for or to purchase any securities convertible into shares
of Common Stock or shares of stock of any class or any other securities,
rights or options, (c) to effect any capital reorganization, consolidation or
merger (including the Corporate Change) or (d) to effect the voluntary or
involuntary dissolution, liquidation or winding-up of the Company, the Company
shall within 5 days send to the Warrant Agent and the Warrant Agent shall
within 5 days send the Holders a notice (in such form as shall be furnished to
the Warrant Agent by the Company) of such proposed action or offer, such
notice to be mailed by the Warrant Agent to the Holders at their addresses as
they appear in the Certificate Register, which shall specify the record date
for the purposes of such dividend, distribution or rights, or the date such
issuance or event is to take place and the date of participation therein by
the holders of Common Stock, if any such date is to be fixed, and shall
briefly indicate the effect of such action on the Common Stock and on the
number and kind of any other shares of stock and on other property, if any,
and the number of shares of Common Stock and other property, if any,
purchasable upon exercise of each Warrant and the Exercise Price after giving
effect to any adjustment which will be required as a result of such action.
Such notice shall be given as promptly as possible and, in the case of any
action covered by clause (a) or (b) above, at least 20 days prior to the
record date for determining holders of the Common Stock for purposes of such
action and, in the case of any other such action, at least 30 days prior to
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Stock, whichever shall be the earlier.
SECTION 4.10 Adjustment to Warrant Certificate. The form of
Warrant Certificate need not be changed because of any adjustment made
pursuant to this Article IV, and Warrant Certificates issued after such
adjustment may state the same Exercise Price and the same number of shares of
Common Stock as are stated in the 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 Warrant Certificate that it may deem
appropriate to give effect to such adjustments and that does not affect the
substance of the Warrant Certificate, and any Warrant Certificate thereafter
issued or countersigned, whether in exchange or substitution for an
outstanding Warrant Certificate or otherwise, may be in the form as so changed.
ARTICLE V.
Transferability
SECTION 5.1 Transfer and Exchange of Warrants. The Warrant
Certificates shall be issued in registered form only. The Warrant Agent shall
from time to time, subject to the limitations of Section 5.4, register the
transfer of any outstanding Warrants upon the records to be maintained by it
(the "Certificate Register") for that purpose, upon surrender thereof duly
endorsed or accompanied (if so required by it) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly
executed by the registered Holder or Holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Subject to the
terms of this Agreement, each Warrant Certificate may be exchanged for another
certificate or certificates entitling the Holder thereof to purchase a like
aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitle each Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Certificates shall make such request in
writing delivered to the Warrant Agent, and shall surrender, duly endorsed or
accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, the Warrant
Certificate or Certificates to be so exchanged.
Upon registration of transfer, the Warrant Agent shall
countersign and deliver by certified mail a new Warrant Certificate or
Certificates to the persons entitled thereto. The Warrant Certificates may be
exchanged at the option of the Holder thereof, when surrendered at the office
or agency of the Company maintained for such purpose, which initially will
be the corporate trust office of the Warrant Agent in New York, New York
for another Warrant Certificate, or other Warrant Certificates of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Warrant Shares. All Warrant Certificates issued
upon any registration of transfer or exchange of Warrant Certificates shall
be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefit under this Agreement, as the Warrant
Certificates surrendered for such registration of transfer or exchange.
To permit registrations of transfer and exchanges, the Company
shall, upon request of the Warrant Agent, make available to the Warrant Agent
a sufficient number of executed Warrant Certificates to effect such
registrations of transfers and exchanges. 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 is imposed in connection with
any such exchange or registration of transfer.
SECTION 5.2 Registration of Transfers and Exchanges.
(a) Transfer and Exchange. When Warrant Certificates are
presented to the Warrant Agent with a request:
(i) to register the transfer of the Warrants
Certificates; or
(ii) to exchange such Warrant Certificates for an
equal number of Warrant Certificates of other authorized
denominations, the Warrant Agent shall register the transfer
or make the exchange as requested if the requirements under
this Agreement as set forth in this Section 5.2 for such
transactions are met; provided, however, that the Warrant
Certificates presented or surrendered for registration of
transfer or exchange:
(I) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to
the Warrant Agent, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(II) in the case of Warrants the offer and sale of
which have not been registered under the Securities Act
of 1933, as amended (the "Security Act"), such Warrants
shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Warrant Certificates are being
delivered to the Warrant Agent by a holder
for registration in the name of such
holder, without transfer, a certification
from such holder to that effect (in
substantially the form of Exhibit B
hereto); or
(B) if such Warrant Certificates are being
transferred to an Institutional
Accredited Investor delivery of a
certification to that effect (in
substantially the form of Exhibit B
hereto) and a Transferee Certificate
for Institutional Accredited Investors
in substantially the form of Exhibit C
hereto; or
(C) if such Warrant Certificates are being
transferred in reliance on Regulation S
under the Securities Act ("Regulation
S"), delivery of a certification to
that effect (in substantially the form
of Exhibit B hereto) and a Transferee
Certificate for Regulation S Transfers
in substantially the form of Exhibit D
hereto and an Opinion of Counsel
reasonably satisfactory to the Company
to the effect that such transfer is in
compliance with the Securities Act; or
(D) if such Warrant Certificates are being
transferred in reliance on another
exemption from the registration
requirements of the Securities Act, a
certification to that effect (in
substantially the form of Exhibit B
hereto) and an opinion of counsel
reasonably satisfactory to the Company
to the effect that such transfer is in
compliance with the Securities Act.
(b) General. By its acceptance of any Warrants represented
by a Warrant Certificate bearing the legend in Section 2.2, each Holder of
such Warrants acknowledges the restrictions on transfer of such Warrants
set forth in this Agreement and in the legend and agrees that it will
transfer such Warrants only as provided in this Agreement. The Warrant
Agent shall not register a transfer of any Warrants unless such transfer
complies with the requirements of this Section 5.2.
(c) Records. The Warrant Agent shall retain copies of all
letters, notices and other written communications received pursuant to
Section 5.1 hereof or this Section 5.2. The Company shall have the right
to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Warrant Agent.
SECTION 5.3 Surrender of Warrant Certificates. Any Warrant
Certificate surrendered for registration of transfer, exchange, exercise or
repurchase of the Warrants represented 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 canceled by
the Warrant Agent and shall not be reissued by the Company and, except as
provided in this Article V in case of an exchange or in Article III hereof in
case of the exercise or repurchase of less than all the Warrants represented
thereby or in case of a mutilated Warrant Certificate, no Warrant Certificate
shall be issued hereunder in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of such canceled Warrant
Certificates as the Company may direct in writing.
ARTICLE VI.
Company's Special Right of Repurchase
SECTION 6.1 If the Merger is not consummated on or before
December 31, 1997 or if it appears, in the sole judgment of Holdings, that the
Merger will not be consummated by December 31, 1997, then, on, or at any time
prior to, December 31, 1997, the Company shall have the right to repurchase
the Warrants by paying to the Warrant Agent for the benefit of the Holders of
Warrants the Repurchase Price. Upon such payment, all the Warrants shall be
cancelled.
(a) Notice of Warrant Repurchase. As promptly as practicable
following December 31, 1997 or, at any time prior thereto, the date Holdings
determines that the Merger will not be consummated by December 31, 1997 (in
either case the "Repurchase Date") Holdings on behalf of the Company shall give
notice of the terms of the Warrant Repurchase (a "Repurchase Notice") to each
Holder, as of the Repurchase Date, of then outstanding Warrants. Each
Repurchase Notice: (i) shall be given by Holdings on behalf of the Company
directly to all Holders of the Warrants, with a copy to the Warrant Agent and
(ii) shall be given within five Business Days after the Repurchase Date and
shall specify (A) the manner in which Warrants shall be surrendered to the
Warrant Agent for repurchase by the Company, (B) the Repurchase Price at which
the Warrants will be repurchased by the Company, and (C) that payment of the
Repurchase Price will be made by the Warrant Agent.
(b) Payment for Warrants. (i) To receive payment for any
Warrants pursuant to this Section 6.1, each Holder thereof shall, except as
otherwise provided herein, surrender to the Warrant Agent the Warrant
Certificates evidencing such Holder's Warrants.
(ii) As promptly as practicable (and in any event within 10
days) following the Repurchase Date, the Company shall deposit with the
Warrant Agent funds sufficient to make payment for all unexercised
Warrants. After receipt of such deposit from the Company, the Warrant
Agent shall make payment to each Holder, by delivering a check in an amount
equal to the Repurchase Price for each Warrant surrendered by such Holder
in accordance with this Section 6.1, to such Person or Persons as it may be
directed in writing by any Holder surrendering Warrant Certificates, net of
any transfer taxes required to be paid in the event that the check is to be
delivered to a Person other than the Holder. Any funds not used to pay for
Warrants within one year after the Repurchase Date shall be promptly
returned to the Company and the Holders thereafter shall look solely to the
Company for payment for their Warrants.
(c) Compliance with Laws. Notwithstanding anything
contained in this Section 6.1, if Holdings or the Company is required to
comply with laws or regulations in connection with the making of the
Warrant Repurchase, such laws or regulations shall govern the making of
such Warrant Repurchase. Holdings shall immediately notify the Warrant
Agent in writing if any such laws or regulations shall require Holdings to
supplement or amend this Agreement or to modify or amend the procedures or
manner of such repurchase or any other provisions set forth herein and the
Warrant Agent shall not be responsible or liable for making any such
determination, complying with any such laws or regulations or for the
failure of the Company to so notify the Warrant Agent.
ARTICLE VIII.
Warrant Agent
SECTION 7.1 Appointment of Warrant Agent. The Company and
Holdings hereby appoint the Warrant Agent to act as agent for the Company and
Holdings in accordance with provisions of this Agreement and the Warrant Agent
hereby accepts such appointment.
SECTION 7.2 Rights and Duties of Warrant Agent. (a) Agent
for the Company and Holdings. 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 Holdings and does not assume any
obligation or relationship or agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(b) 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.
(c) 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 document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(d) 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 for which
it does not receive indemnity if such indemnity is reasonably requested. 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 countersigned by the
Warrant Agent and delivered by it to the Holders or on behalf of the Holders
pursuant to this Agreement or for the application by the Company of the
proceeds of the 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 the Warrant Certificates or in
the case of the receipt of any written demand from a Holder with respect to
such default, including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise.
(e) Not Responsible for Adjustments or Validity of Stock. The
Warrant Agent shall not at any time be under any duty or responsibility to any
Holder to determine whether any facts exist that may require an adjustment of
the number of shares of Common Stock purchasable upon exercise of each Warrant
or the Exercise Price, or with respect to the nature or extent of any
adjustment when made, or with respect to the method employed, or herein or in
any supplemental agreement provided to be employed, in making the same. The
Warrant Agent shall not be accountable with respect to the validity or value
of any shares of Common Stock or of any securities or property which may at
any time be issued or delivered upon the exercise of any Warrant or upon any
adjustment pursuant to Article IV, and it makes no representation with respect
thereto. The Warrant Agent shall not be responsible for any failure of the
Company or Holdings to make any cash payment or to issue, transfer or deliver
any shares of Common Stock or stock certificates upon the surrender of any
Warrant Certificate for the purpose of exercise or upon any adjustment
pursuant to Article IV, or to comply with any of the covenants of the Company
contained in Article IV.
SECTION 7.3 Individual Rights of Warrant Agent.
The Warrant Agent and any stockholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or Holdings or its affiliates or become
pecuniarily interested in transactions in which the Company or its affiliates
may be interested, or contract with or lend money to the Company or its
affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
SECTION 7.4 Warrant Agent's Disclaimer. The Warrant Agent
shall not be responsible for and makes no representation as to the validity
or adequacy of this Agreement or the Warrant Certificates and it shall not
be responsible for any statement in this Agreement or the Warrant
Certificates other than its countersignature thereon.
SECTION 7.5 Compensation and Indemnity. The Company agrees to
pay the Warrant Agent from time to time reasonable compensation for its
services and to reimburse the Warrant Agent upon request for all reasonable
out-of-pocket expenses incurred by it, including the reasonable compensation
and expenses of the Warrant Agent's counsel. The Company shall indemnify the
Warrant Agent against any loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred by it without negligence or bad faith
on its part arising out of or in connection with the acceptance or performance
of its duties under this Agreement. The Warrant Agent shall notify the
Company promptly of any claim for which it may seek indemnity. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Warrant Agent through willful misconduct, negligence or bad
faith. The Company's payment obligations pursuant to this Section 7.5 shall
survive the termination of this Agreement.
To secure the Company's payment obligations under this
Agreement, the Warrant Agent shall have a lien prior to the Warrant Holders on
all money or property held or collected by the Warrant Agent.
SECTION 7.6 Successor Warrant Agent. (a) The Company To
Provide Warrant Agent. The Company agrees for the benefit of the Holders
that there shall at all times be a Warrant Agent hereunder until all the
Warrants have been exercised or are no longer exercisable.
(b) Resignation and Removal. The Warrant Agent may at any time
resign 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, however, that such date shall not be less than 60 days 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, which date shall not be
less than 30 days after such notice is given unless the Warrant Agent
otherwise agrees. Any removal under this Section 7.6 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.
(c) The Company To Appoint Successor. 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 commence a
voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable Federal or state bankruptcy,
insolvency or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action, or a decree
or order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or similar law; or a decree
order by a court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up of 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; provided, however, that in the event of the
resignation of the Warrant Agent under this subsection (c), such
resignation shall be effective on the earlier of (i) the date specified in
the Warrant Agent's notice of resignation and (ii) the appointment and
acceptance of a successor Warrant Agent hereunder.
(d) Successor Expressly To Assume Duties. 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 rights 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) Successor by Merger. Any Person into which the Warrant
Agent hereunder may be merged or consolidated, or any Person resulting from
any merger or consolidation to which the Warrant Agent shall be a party, or
any Person to which the Warrant Agent shall sell or otherwise transfer all
or substantially all of its corporate trust business; 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 VIII.
Miscellaneous
SECTION 8.1 Company Resales. The Company hereby agrees with
each Holder, that the Company shall not resell any Warrants or Warrant
Shares it acquires, by purchase or otherwise, except pursuant to an
effective registration statement.
SECTION 8.2 SEC Reports and Other Information.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall,
for all periods ending after the date of this Warrant Agreement, file with
the SEC and thereupon provide the Warrant Agent and Holders with such
annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S. corporation subject to such Sections, such information, documents and
other reports to be so filed and provided at the times specified for the
filing of such information, documents and reports under such Sections.
SECTION 8.3 Persons Benefitting. Nothing in this Agreement is
intended or shall be construed to confer upon any Person other than the
Company, the Warrant Agent and the Holders any right, remedy or claim under or
by reason of this agreement or any part hereof.
SECTION 8.4 Rights of Holders. Except as expressly
contemplated herein, Holders of unexercised Warrants are not entitled (i)
to receive dividends or other distributions, (ii) to receive notice of or
vote at any meeting of the stockholders, (iii) to consent to any action of
the stockholders, (iv) to exercise any preemptive right or to receive
notice of any other proceedings of the Company or (v) to exercise any other
rights whatsoever as stockholders of the Company.
SECTION 8.5 Amendment. This Agreement may be amended by the
parties hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective 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, however, that the Company
determines, and the Warrant Agent may rely on such determination, that such
action shall not affect adversely the rights of the Holders. Any amendment or
supplement to this Agreement that has a material adverse effect on the
interests of the Holders shall require the written consent of the Holders of a
majority of the then outstanding Warrants. The consent of each Holder
affected shall be required for any amendment pursuant to which the Exercise
Price would be increased or the number of Warrant Shares purchasable upon
exercise of Warrants would be decreased (other than pursuant to adjustments
provided in Article IV as of the Issue Date of the Warrants). In determining
whether the Holders of the required number of Warrants have concurred in any
direction, waiver or consent, Warrants owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the
Warrant Agent shall be protected in relying on any such direction, waiver or
consent, only Warrants which the Warrant Agent knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Warrants outstanding at the
time shall be considered in any such determination.
SECTION 8.6 Notices. Any notice or communication shall be in
writing and delivered in Person or mailed by first-class mail addressed as
follows:
if to the Company:
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: President
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
if to the Warrant Agent:
The Bank of Montreal Trust Company
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
The Company or the Warrant Agent by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be
mailed to the Holder at the Holder's address as it appears on the register
in which the Company shall provide for the registration of Warrants and
Warrant Shares and of transfers and exchanges of Warrants and Warrant
Shares and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
SECTION 8.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE
COMPANY, ON BEHALF OF ITSELF, HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY
OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO
THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF,
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 8.8 Successors. All agreements of the Company in this
Agreement and the Warrant Certificates shall bind its successors. All
agreements of the Warrant Agent in this Agreement shall bind its successors.
SECTION 8.9 Multiple Originals. The parties may sign any
number of copies of this Agreement. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Agreement.
SECTION 8.10 Table of Contents. The table of contents and
headings of the Articles and Sections of this Agreement have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.
SECTION 8.11 Severability. The provisions of this Agreement
are severable, and if any clause or provision shall be held invalid,
illegal or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect in that jurisdiction only such
clause or provision, or part thereof, and shall not in any manner affect
such clause or provision in any other jurisdiction or any other clause or
provision of this Agreement in any jurisdiction.
SECTION 8.12 Further Assurances. From time to time on and
after the date hereof, the Company shall deliver or cause to be delivered
to the Warrant Agent such further documents and instruments and shall do
and cause to be done such further acts as the Warrant Agent shall
reasonably request (it being understood that the Warrant Agent shall have
no obligation to make such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
PRICE COMMUNICATIONS CORPORATION
By:
------------------------------------
Name:
Title:
PRICE COMMUNICATIONS CELLULAR
HOLDINGS INC.
By:
------------------------------------
Name:
Title:
BANK OF MONTREAL TRUST COMPANY,
By:
------------------------------------
Name:
Title:
EXHIBIT A
---------
[FORM OF FACE OF WARRANT CERTIFICATE]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (B) IT IS
NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON
THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO PRICE COMMUNICATIONS CORPORATION (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE, BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY), (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) AND, IN EACH
CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A PROVISION REQUIRING
THE WARRANT AGENT TO REFUSE TO REGISTER TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
No. [ ] Certificate for _______ Warrants
WARRANTS TO PURCHASE COMMON STOCK OF
PRICE COMMUNICATIONS CORPORATION
THIS CERTIFIES THAT, [ ], or its
registered assigns, is the registered holder of the number of Warrants set
forth above (the "Warrants"). Each Warrant entitles the holder thereof (the
"Holder"), at its option and subject to the provisions contained herein and in
the Warrant Agreement referred to below, to purchase from Price Communications
Corporation, a New York corporation ("the Company"), one share of Common
Stock, $0.01 par value, of the Company (the "Common Stock") at the per share
exercise price of $0.01 (the "Exercise Price"). This Warrant Certificate
shall terminate and become void as of the close of business on August 1, 2007
(the "Expiration Date") or upon the exercise hereof as to all the shares of
Common Stock subject hereto. The number of shares purchasable upon exercise
of the Warrants and the Exercise Price per share shall be subject to
adjustment from time to time as set forth in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with
a Warrant Agreement dated as of August 7, 1997 (the "Warrant Agreement"),
between the Company and The Bank of Montreal Trust Company (the "Warrant
Agent," which term includes any successor Warrant Agent under the Warrant
Agreement), and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties and obligations of the Company, the
Warrant Agent and the Holders of the Warrants. Capitalized terms used but not
defined herein shall have the meanings ascribed thereto in the Warrant
Agreement. A copy of the Warrant Agreement may be obtained for inspection by
the Holder hereof upon written request to the Warrant Agent at Bank of
Montreal Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of Corporate Trust Administration.
Subject to the terms of the Warrant Agreement, the Warrants may
be exercised in whole or in part by presentation of this Warrant Certificate.
As provided in the Warrant Agreement and subject to the terms
and conditions therein set forth, the Warrants shall be exercisable at any
time or from time to time on any Business Day only on or after the earlier to
occur of (i) the consummation of the Merger (as defined in the Warrant
Agreement) (provided that if the Merger does not occur prior to December 31,
1997, the Warrants will be subject to the Company's special right of
repurchase, as provided in the Warrant Agreement) and (ii) the occurrence of a
Change of Control (as defined in the Warrant Agreement); provided, however,
that no Warrant shall be exercisable after August 1, 2007.
In the event the Company enters into a Combination (as defined
in the Warrant Agreement), the Holder hereof will be entitled to receive the
shares of capital stock or other securities or other property of such
surviving entity as the Holder would have received had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
the event that, in connection with such Combination, consideration to holders
of Common Stock in exchange for their shares is payable solely in cash or in
the event of the dissolution, liquidation or winding-up of the Company, the
Holder hereof will be entitled to receive cash distributions as the Holder
would have received had the Holder exercised its Warrants immediately prior to
such Combination.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the
transfer or exchange of the Warrant Certificates pursuant to Section 5.2 of
the Warrant Agreement but not for any exchange or original issuance (not
involving a transfer) with respect to temporary Warrant Certificates, the
exercise of the Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the shares of Common Stock as to which the Warrants shall not have
been exercised. This Warrant Certificate may be exchanged at the office of
the Warrant Agent by presenting this Warrant Certificate properly endorsed
with a request to exchange this Warrant Certificate for other Warrant
Certificates evidencing an equal number of Warrants. No fractional Warrant
Shares will be issued upon the exercise of the Warrants, but the Company shall
pay an amount in cash equal to the Market Value for one Warrant Share on the
trading day immediately preceding the date the Warrant is exercised,
multiplied by the fraction of a Warrant Share that would be issuable on the
exercise of any Warrant.
All shares of Common Stock issuable by the Company upon the
exercise of the Warrants shall, upon such issue, be duly and validly issued
and fully paid and nonassessable.
The Holder in whose name the Warrant Certificate is registered
may be deemed and treated by the Company and the Warrant Agent as the absolute
owner of the Warrant Certificate for all purposes whatsoever and neither the
Company nor the Warrant Agent shall be affected by notice to the contrary.
The Warrants do not entitle any holder hereof to any of the
rights of a stockholder of the Company.
This Warrant Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the Warrant
Agent.
PRICE COMMUNICATIONS CORPORATION
By:
------------------------------------
Title:
DATED:
Countersigned:
BANK OF MONTREAL TRUST COMPANY
By:
------------------------------------
Authorized Signatory
EXHIBIT B
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to purchase
Common Stock (the "Securities"), of
Price Communications Corporation
-----------------------------------
This Certificate relates to __________ Securities held in the
form of Warrant Certificates by ____________ (the "Transferor").
The Transferor:*
/ / has requested that the Warrant Agent by written order to
exchange or register the transfer of a Warrant Certificate or Warrant
Certificates.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Warrant Agreement relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 5 of such Warrant
Agreement, and that the transfer of these Securities does not require
registration under the Securities Act of 1933, as amended (the "Act") because*:
/ / Such Security is being acquired for the Transferor's own
account, without transfer.
/ / Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraphs (a)(1), (2), (3) or
(7) of Rule 501 under the Act.
/ / Such Security is being transferred in reliance on
Regulation S under the Act.
/ / Such Security is being transferred in reliance on Rule 144
under the Act.
/ / Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act
other than Rule 144A or Rule 144 or Regulation S under the Act to a person
other than an institutional "accredited investor."
------------------------------------
(INSERT NAME OF TRANSFEROR)
By:
--------------------------------
(Authorized Signatory)
Date:
-------------------------
*Check applicable box.
EXHIBIT C
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
[Date]
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Price Communications Corporation
(the "Company") Warrants to purchase
Common Stock (the "Securities")
------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of Securities, of the
Company, we confirm that:
(1) We have received such information as we deem necessary in
order to make our investment decision.
(2) We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth in
the Warrant Agreement and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Securities except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
(3) We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the Securities
may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except as permitted in the following
sentence. We agree, on our own behalf-and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell any
Securities, we will do so only (A) to the Company or any subsidiary
thereof, (B) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or
has furnished on its behalf by a U.S. broker-dealer) to the Warrant Agent a
signed letter substantially in the form hereof, (C) outside the United
States in accordance with Regulation S under the Securities Act, (D)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (E) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing Securities from us a notice advising such purchaser that
resales of the Securities are restricted as stated herein.
(4) We understand that, on any proposed resale of
Securities, we will be required to furnish to the Warrant Agent and the
Company, such certification, legal opinions and other information as the
Warrant Agent and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further
understand that the Securities purchased by us will bear a legend to the
foregoing effect.
(5) We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their investment,
as the case may be.
6. We are acquiring the Securities purchased by us for our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
(Name of Transferor)
By:
----------------------------
(Authorized Signatory)
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection
with Regulation S Transfers
[Date]
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Price Communications Corporation
(the "Company") Warrants to purchase
Common Stock (the "Securities")
------------------------------------
Dear Sirs:
In connection with our proposed sale of ________ of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
1. the offer of the Securities was not made to a person in the
United States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States,
or (b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
3. no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
5. we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Defined terms used herein
without definition have the respective meanings provided in Regulation S.
Very truly yours,
(Name of Transferor)
By:
----------------------------
(Authorized Signatory)
