EXHIBIT 5
WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of December 19, 2002 (this
"Agreement") is by and between STERLING CHEMICALS, INC., a Delaware corporation
("Sterling" or the "Corporation"), and XXXXX FARGO BANK MINNESOTA, N.A., as
warrant agent (in such capacity, the "Warrant Agent").
PRELIMINARY STATEMENTS
A. Concurrently with the execution hereof, Sterling is emerging from
the protection of Chapter 11 of the United States Code pursuant to
that certain plan of reorganization dated October 11, 2002, as the
same may be later modified (the "Plan").
B. Pursuant to the terms of, and subject to the conditions contained
in, the Plan, Sterling has agreed to issue to warrants (each, a
"Warrant") entitling the holders thereof to purchase shares of the
common stock, par value $0.01 per share, of Sterling at a price of
$52.00 per share.
X. Xxxxxxxx wishes the Warrant Agent to act on its behalf, and the
Warrant Agent is willing to act on behalf of Sterling, in
connection with the issuance, exchange, transfer, substitution and
exercise of the Warrants.
X. Xxxxxxxx desires to enter into this Agreement to set forth the
terms and conditions of the Warrants and the rights and
obligations of Sterling, the Warrant Agent and the registered
holders of the Certificates evidencing Warrants (the "Holders").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and in the Plan, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Sterling and the Warrant Agent, intending to be legally bound,
hereby agree as follows:
ARTICLE I
Definitions and Interpretation
Section 1.01. Certain Defined Terms. Capitalized terms used in
this Agreement shall have the following respective meanings, except as otherwise
provided herein or as the context shall otherwise require:
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such Person.
The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Business Day" means any day which is not a day on which banking
institutions in New York City, New York or Houston, Texas are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean any capital stock of any class or series
of Sterling (including, on the Original Issuance Date, the Common Stock,
par value $0.01 per share, of Sterling) which has no preference in
respect of dividends or of amounts payable in the event of any voluntary
or involuntary liquidation, dissolution or winding up of Sterling and
which is not subject to redemption by Sterling. However, subject to the
provisions of Section 4.01(c), shares into which Warrants are exercisable
shall include only shares of the class of capital stock of Sterling
designated as Common Stock, par value $.0l per share, of Sterling on the
Original Issuance Date or shares of any class or classes resulting from
any reclassification or reclassifications thereof involving solely a
change in par value or from par value to no par value or from no par
value to par value and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of Sterling and which are not
subject to redemption by Sterling; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each
such class into which Warrants are then exercisable shall be
substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Current Market Value" means, with respect to any security
(including Common Stock), as of a specified date (the "date of
calculation"):
(i) if such security is not registered under the Exchange
Act, the value of such security as determined by an Independent
Financial Expert selected by the Board of Directors of Sterling;
or
(ii) if such security is registered under the Exchange Act,
the average of the daily market prices of such security for the 5
consecutive trading days commencing not more than 20 trading days
before, and ending not later than, the earlier of the date of
calculation and the day before the "ex" date with respect to the
event requiring such calculation or, if such security has been
registered under the Exchange Act for less than
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5 consecutive trading days before such earlier date, then the
average of the daily market prices for all of the trading days
before such earlier date for which daily market prices are
available; provided, however, that if the market price cannot be
calculated (as provided below), the Current Market Value of such
security shall be determined as if such security were not
registered under the Exchange Act.
For purposes of this Agreement, (x) the term "market price" means, with
respect to any security for any trading day, (A) in the case of a
security listed or admitted to trading on any national securities
exchange, the closing sales price, regular way, on such day, or if no
sale takes place on such day, the average of the closing bid and asked
prices on such day on the principal national securities exchange on which
such security is listed or admitted, (B) in the case of a security not
then listed or admitted to trading on any national securities exchange,
the last reported sales price on such day, or if no sale takes place on
such day, the average of the closing bid and asked prices on such day, as
reported by a reputable quotation source designated by Sterling, or (C)
in the case of a security not then listed or admitted to trading on any
national securities exchange and as to which no such reported sales price
or bid and asked prices are available, the average of the reported high
bid and low asked prices on such day, as reported by a reputable
quotation service, or a newspaper of general circulation in the Borough
of Manhattan, City and State of New York customarily published on each
Business Day, designated by Sterling, or, if there shall be no bid and
asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than 30 days
prior to the date in question) for which prices have been so reported;
and (y) the term "`ex' date," when used with respect to any distribution,
shall mean the first date on which the security trades regular way on
such exchange or in such market without the right to receive such
distribution.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of
the Securities and Exchange Commission thereunder, all as the same shall
be in effect at the time. Reference to a particular section of the
Securities Exchange Act of 1934, as amended, shall include reference to
the comparable section, if any, of any such similar Federal statute.
"Exercise Price" has the meaning specified in Section 3.01.
"Expiration Date" means, with respect to any Warrant, the sixth
anniversary of its Issue Date or, if earlier, the date of consummation of
a merger or consolidation to which clause (i) of the last sentence of
Section 4.01(c) applies.
"Governmental Authority" means (i) any nation or government, (ii)
any federal, state, county, province, city, town, municipality, local or
other political subdivision thereof or thereto, (iii) any court,
tribunal, department, commission, board, bureau, instrumentality, agency,
council, arbitrator or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government and (iv) any other
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governmental entity, agency or authority having or exercising
jurisdiction over any relevant Person, item or matter.
"Holders" has the meaning specified in the Preliminary Statements
of this Agreement.
"Independent Financial Expert" means any Financial Expert selected
by Sterling that either (i) is reasonably acceptable to the Holders of
Warrant Certificates evidencing a majority of the outstanding Warrants or
(ii) is a firm (x) which does not (and whose directors, officers,
employees and affiliates, to the knowledge of Sterling, do not) have a
material direct or indirect financial interest in Sterling or any of its
Affiliates (other than by virtue of compensation paid for advice or
opinions referred to in the exception to clause (z)), as determined by
the Board of Directors of Sterling in its reasonable good faith judgment,
(y) which has not been, within the last two years, and, at the time it is
called upon to give independent financial advice to Sterling or any of
its Affiliates, is not (and none of whose directors, officers, employees
or affiliates, to the knowledge of Sterling, is) a promoter, director or
officer of Sterling or any of its Affiliates or an underwriter with
respect to any of the securities of Sterling or any of its Affiliates and
(z) which does not provide any advice or opinions to Sterling or
Affiliates except as an independent financial expert in connection with
the Certificate of Designations for Sterling's Series A Convertible
Preferred Stock or this Agreement.
"Issue Date" has the meaning specified in Section 2.03 hereof.
"Laws" means all laws, statutes, rules, regulations, ordinances,
orders, writs, injunctions or decrees and other pronouncements having the
effect of law of any Governmental Authority.
"Legended Warrant Certificate" means any Warrant Certificate
bearing the legend specified in Section 2.02.
"Original Issuance Date" means December 19, 2002, the effective
date of the Plan.
"Person" means any individual, limited liability company,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Authority or
other entity or enterprise.
"Plan" has the meaning specified in the Preliminary Statements of
this Agreement.
"Preferred Stock" means the Series A Convertible Preferred Stock
of Sterling.
"Securities Act" means the Securities Act of 1933.
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"Special Dividend" shall mean any payment by Sterling to all
holders of its Common Stock of any dividend, or any other distribution by
Sterling to such holders, of any shares of capital stock of Sterling,
evidences of indebtedness of Sterling, cash or other assets (including
rights, warrants, convertible securities or other securities (of Sterling
or any other Person)), other than any dividend or distribution (i) upon a
capital reorganization, reclassification, merger or consolidation to
which Section 4.01(c) applies, (ii) of any common stock referred to in
Section 4.01(a), (iii) pursuant to the Plan or (iv) which is paid in cash
out of the retained earnings of Sterling for the current or previous
fiscal year.
"Sterling" has the meaning specified in the opening paragraph of
this Agreement.
"Tag Along Agreement" means that certain Tag Along Agreement,
dated as of the Original Issuance Date (the "Tag Along Agreement"), by
and among the Corporation, Resurgence Asset Management, L.L.C., a
Delaware limited liability company on behalf of itself and each of the
RAM Affiliates and the Creditor's Committee, on behalf of the Qualifying
Holders.
"Warrant" has the meaning specified in the Preliminary Statements
of this Agreement.
"Warrant Agent" has the meaning specified in the opening paragraph
hereof.
"Warrant Certificates" has the meaning specified in Section 2.01.
Section 1.02. Interpretation. In this Agreement, unless a clear
contrary intention appears:
(a) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement;
(b) reference to any gender includes each other gender and the
neuter;
(c) all terms defined in the singular shall have the same meanings
in the plural and vice versa;
(d) reference to any Person includes such Person's heirs,
executors, personal representatives, administrators, successors and
assigns; provided, however, that nothing contained in this clause (d) is
intended to authorize any assignment not otherwise permitted by this
Agreement;
(e) reference to a Person in a particular capacity or capacities
excludes such Person in any other capacity;
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(f) reference to any contract or agreement means such contract or
agreement as amended, supplemented or modified from time to time in
accordance with the terms thereof;
(g) all references to Articles and Sections shall be deemed to be
references to the Articles and Sections of this Agreement;
(h) all references to Exhibits shall be deemed to be references to
the Exhibits attached hereto which are made a part hereof and
incorporated herein by reference;
(i) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(j) with respect to the determination of any period of time, the
word "from" means "from and including" and the words "to" and "until"
each means "to but excluding";
(k) the captions and headings contained in this Agreement shall
not be considered or given any effect in construing the provisions hereof
if any question of intent should arise;
(l) reference to any Law means such Law as amended, modified,
codified, reenacted, supplemented or superseded in whole or in part, and
in effect from time to time;
(m) where any provision of this Agreement refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person; and
(n) no provision of this Agreement shall be interpreted or
construed against any Party solely because that Party or its legal
representative drafted such provision.
ARTICLE II
Original Issue Of Warrants
Section 2.01. Form of Warrant Certificates. The Warrants shall be
evidenced by certificates in registered form (the "Warrant Certificates"),
substantially in the form attached hereto as Exhibit A, and may have such
insertions, letters, numbers or other marks of identification and such legends
and endorsements stamped, printed, lithographed or engraved thereon as may,
consistently herewith, be determined to be necessary or appropriate by the
officers of Sterling executing such Warrant Certificates as evidenced by their
execution of the Warrant Certificates, or as may be required to comply with any
applicable Law or with any rule or regulation of any securities exchange or to
conform to usage. Each Warrant shall represent the right, subject to the
provisions of this Agreement and of the Warrant Certificate, to purchase one
share of Common Stock at the Exercise Price, subject to adjustment pursuant to
the provisions of Section 4.01. The
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definitive Warrant Certificates shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by applicable Law.
Section 2.02. Legends. Each Warrant Certificate originally issued
to the Investor (as such term is defined in the Plan), or issued upon
registration of transfer of, or upon exchange for or in lieu of, any Warrant
Certificate bearing the following legend, shall bear the following legend:
THE COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF STERLING
CHEMICALS, INC. (THE "COMMON STOCK") FOR WHICH THIS WARRANT IS
EXERCISABLE MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
ACCORDINGLY, NO HOLDER SHALL BE ENTITLED TO EXERCISE SUCH HOLDER'S
WARRANTS AT ANY TIME UNLESS, AT THE TIME OF EXERCISE, (i) A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT RELATING TO THE
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAS BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION"), AND NO STOP ORDER
SUSPENDING THE EFFECTIVENESS OF SUCH REGISTRATION STATEMENT HAS
BEEN ISSUED BY THE COMMISSION, OR (ii) THE ISSUANCE OF SUCH SHARES
IS PERMITTED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
Section 2.03. Execution, Issuance, and Delivery of Warrant
Certificates. (a) Each Warrant Certificate, whenever issued, shall be dated as
of the date of countersignature thereof by the Warrant Agent (the "Issue Date"),
either upon initial issuance or upon exchange, substitution or transfer and
shall be executed on behalf of Sterling by its Chairman of the Board, Chief
Executive Officer, President or any Vice President, either manually or by
facsimile signature printed thereon. The Warrant Certificates shall be
countersigned by manual or facsimile signature of the Warrant Agent and shall
not be valid for any purpose unless so countersigned. In the event that any
officer of Sterling whose signature shall have been placed upon any of the
Warrant Certificates shall cease to be an officer of Sterling before
countersignature by the Warrant Agent and the 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 Sterling.
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(b) Sterling shall instruct the Warrant Agent to countersign,
issue and deliver, at the expense of Sterling, Warrant Certificates evidencing
Warrants to purchase an aggregate of up to 949,367 shares of Common Stock at the
times required by, and in accordance with the terms and conditions of, the Plan.
The Warrant Agent shall, and is hereby authorized to, countersign, issue and
deliver Warrants as and when so instructed by Sterling. In addition, the Warrant
Agent is hereby authorized to countersign, issue and deliver Warrant
Certificates as required by Section 2.04, Section 3.03 or Article V.
Section 2.04. Transfer and Exchange of Warrant Certificates. (a)
The Warrant Agent shall maintain books, subject to such reasonable regulations
as it may prescribe, for the registration of Warrant Certificates and transfers
and exchanges of Warrant Certificates as provided in this Agreement.
(b) A Holder may transfer its Warrant Certificates only by written
application to the Warrant Agent stating the name of the proposed transferee and
otherwise complying with the terms of this Agreement and all applicable Laws. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Warrant Agent in the register in accordance with this Agreement. Prior to
due presentation for registration of transfer, Sterling, the Warrant Agent and
any agent of Sterling may deem and treat the Person in whose name the Warrant
Certificates are registered as the absolute owner thereof for all purposes
(notwithstanding any notation of ownership or other writing thereon made by
anyone), and neither Sterling nor the Warrant Agent shall be affected by any
notice to the contrary or be bound to recognize any equitable or other claim to
or an interest in any Warrants on the part of any other Person and shall not be
liable for any registration of transfer of Warrant Certificates that are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer or with
such knowledge of such facts that its participation therein amount to bad faith.
When Warrant Certificates are presented to the Warrant Agent with a request to
register the transfer thereof or to exchange them for an equal number of Warrant
Certificates of other authorized denominations, the Warrant Agent shall register
the transfer or make the exchange as requested solely in the case of any
Legended Certificates if the requirements of this Agreement for such transaction
are met. To permit registrations of transfers and exchanges, Sterling shall
execute Warrant Certificates at the Warrant Agent's request. No service charge
shall be made for any registration of transfer or exchange of Warrant
Certificates, but Sterling or the Warrant Agent may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection with any registration of transfer of Warrant Certificates.
(c) All Warrant Certificates issued upon any registration of
transfer or exchange of Warrants shall be the valid obligations of Sterling,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for registration of transfer
or exchange.
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Section 2.05. Surrender and Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for registration of transfer, exchange or
exercise of the Warrants represented thereby or pursuant to Section 6.02 shall,
if surrendered to Sterling, 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 Sterling or the
Warrant Agent and, except as provided in Section 2.04 (in the case of a transfer
or exchange), Section 3.03 (in the case of the exercise of less than all the
Warrants represented by the surrendered Warrant Certificate) or Article V (in
the case of a lost, stolen, destroyed or mutilated Warrant Certificate), no
Warrant Certificate shall be issued hereunder in lieu thereof. On request of
Sterling, the Warrant Agent, provided that any retention periods established by
the Securities and Exchange Commission have expired, shall destroy canceled
Warrant Certificates held by it and shall deliver its certificates of
destruction to Sterling. The Warrant Agent shall destroy all canceled Warrant
Certificates in accordance with its normal procedures.
ARTICLE III
Exercise Price; Exercise Of Warrants
Section 3.01. Exercise Price. Each Warrant Certificate shall, when
countersigned by the Warrant Agent, entitle the Holder thereof, subject to the
provisions of this Agreement and such Warrant Certificate, to purchase one share
of Common Stock (subject to adjustment as provided herein) for each Warrant
represented thereby at a purchase price (the "Exercise Price") of $52.00 per
share (subject to adjustment as provided herein), payable in full at the time of
purchase.
Section 3.02. Exercise; Restrictions on Exercise. (a) Each
outstanding Warrant may be exercised on any Business Day which is on or after
its Issue Date and on or before the Expiration Date, but only if (solely in the
case of any Legended Warrant Certificate) the exercise of such Warrants is
exempt from the registration requirements of the Securities Act. Any Warrants
not exercised by 5:00 p.m., New York City time, on the Expiration Date shall
expire and all rights thereunder and all rights in respect thereof under this
Agreement shall automatically terminate at such time.
(b) Sterling 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
5:00 p.m., New York City time, on the Expiration Date; provided, however, that
the Warrants will terminate and become void as of 5:00 p.m., New York City time,
on the Expiration Date irrespective of whether Sterling provides such notice.
Section 3.03. Method of Exercise; Payment of Exercise Price.
(a) In order to exercise any of the Warrants, the Holder thereof must surrender
the Warrant Certificate evidencing such Warrants to the Warrant Agent at its
corporate trust office set forth in Section 9.05 (with the Subscription Form set
forth in the Warrant Certificate duly executed), together
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with payment in full of the Exercise Price then in effect for each share of
Common Stock as to which a Warrant is exercised and any applicable taxes that
Sterling is not required to pay pursuant to this Section 3.03, Sections 2.04(b)
or 9.02 or Article V. Payment of the Exercise Price shall be made by the Holder
by check payable to the order of Xxxxx Fargo Bank Minnesota, N.A. Upon the
exercise of any Warrant, the Warrant Agent shall promptly provide written notice
of such exercise to Sterling, including notice of the number of shares of Common
Stock delivered upon the exercise of such Warrant, and deliver all payments
received upon exercise of such Warrant to Sterling in such manner as Sterling
shall instruct in writing.
(b) A Holder may exercise all or any number of whole Warrants
represented by a Warrant Certificate. If less than all of the Warrants
represented by a Warrant Certificate are exercised, such Warrant Certificate
shall be surrendered and a new Warrant Certificate executed by Sterling of the
same tenor and for the number of Warrants which were not exercised shall be
issued by the Warrant Agent. The Warrant Agent shall (i) countersign such
Warrant Certificate, (ii) register such Warrant Certificate in such name or
names as may be directed in writing by the Holder and (iii) deliver such Warrant
Certificate to the Person or Persons entitled to receive the same.
(c) Upon the exercise of any Warrant and the surrender of the
Warrant Certificate evidencing such Warrant in conformity with the foregoing
provisions, the Warrant Agent shall, subject to Section 9.02, (i) transfer
promptly to or upon the written order of the Holder of such Warrant Certificate,
appropriate evidence of ownership of any shares of Common Stock or other
securities or property (including money) to which it is entitled, registered or
otherwise placed in such name or names as may be directed in writing by the
Holder, and (ii) deliver such evidence of ownership and any other securities or
property (including money) to the Person or Persons entitled to receive the same
(together with an amount in cash in lieu of any fractional shares as provided in
Section 4.05).
(d) Upon the exercise of any Warrant, the Warrant Agent is hereby
authorized and directed to requisition from any transfer agent of the Common
Stock (and all such transfer agents are hereby irrevocably authorized to comply
with all such requests) certificates (bearing the legend set forth in Section
9.10, if applicable) for the necessary number of shares of Common Stock to which
the Holder of such Warrant may be entitled upon such exercise.
(e) Any Warrant which is exercised hereunder shall be deemed to
have been exercised immediately prior to the close of business on the date of
the surrender, as provided above, of the Warrant Certificate representing such
Warrant, together with payment in full of the Exercise Price and any applicable
taxes that Sterling is not required to pay pursuant to this Section 3.03,
Sections 2.04(b) or 9.02 or Article V, and, for purposes of this Agreement, the
Person entitled to receive any shares of Common Stock or other securities or
property deliverable upon such exercise shall, as between such Person and
Sterling, be deemed to be the Holder of such shares of Common Stock or other
securities or property of record as of the close of business on such date and
shall be entitled to receive, and Sterling shall deliver or cause to be
delivered to such Person, any money,
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shares of Common Stock or other securities or property to which he would have
been entitled had he been a record holder on such date.
ARTICLE IV
Adjustments
Section 4.01. Adjustments. The number of shares of Common Stock
issuable upon exercise of each Warrant shall be subject to adjustment from time
to time as follows:
(a) Upon Stock Dividends, Subdivisions or Splits. If, at any time after
the Original Issuance Date, the number of shares of Common Stock outstanding is
increased by a stock dividend or distribution on the outstanding shares of
Common Stock payable in shares of Common Stock or by a subdivision or split-up
of shares of Common Stock, other than, in any such case, upon a capital
reorganization, reclassification, consolidation or merger to which Section
4.01(c) applies, then, following the record date for the determination of
holders of Common Stock entitled to receive such stock dividend, or to be
affected by such subdivision or split-up, the number of shares of Common Stock
purchaseable on exercise of the Warrants shall be increased in proportion to
such increase in outstanding shares. The adjustment made pursuant to this clause
(a) shall become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution or (y) in the case of such subdivision or split-up, at the close of
business on the day upon which such corporate action becomes effective.
(b) Upon Combinations or Reverse Splits. If, at any time after the
Original Issuance Date, the number of shares of Common Stock outstanding is
decreased by a combination or reverse split of the outstanding shares of Common
Stock into a smaller number of shares of Common Stock , other than, in any such
case, upon a capital reorganization, reclassification, consolidation or merger
to which Section 4.01(c) applies, then the number of shares of Common Stock
purchasable on the exercise of each Warrant immediately prior to the date of
such combination or reverse split shall be decreased in proportion to such
decrease in outstanding shares. The adjustment made pursuant to this clause (b)
shall become effective at the close of business on the day upon which such
combination or reverse split becomes effective. For purposes of Sections 4.01(a)
and 4.01(b), the number of shares of Common Stock at any time outstanding shall
not include any shares of Common Stock then owned or held by or for the account
of the Corporation.
(c) Upon Reclassifications, Reorganizations, Consolidations or Mergers.
In the event of any capital reorganization of the Corporation, any
reclassification of the stock of the Corporation (other than a change in par
value or from par value to no par value or from no par value to par value or as
a result of a stock dividend or subdivision, split-up or combination or
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reverse split of shares), or any consolidation or merger of the Corporation with
or into another corporation (where the Corporation is not the surviving
corporation or where there is a change in or distribution with respect to the
Common Stock), except in the case of a merger or consolidation to which clause
(i) of the last sentence of this Section 4.01(c) applies, each Warrant,
effective at the close of business on the date such reorganization,
reclassification, consolidation, or merger shall become effective, shall
thereafter be exercisable for the kind and number of shares of stock or other
securities or property, (including cash) receivable upon the consummation of
such reorganization, reclassification, consolidation or merger, by a holder of
the number of shares of Common Stock deliverable (immediately prior to the time
of such reorganization, reclassification, consolidation or merger) upon exercise
of such Warrant and, except as specified in 4.01(i), otherwise shall have the
same terms and conditions applicable immediately prior to such time of such
reorganization, reclassification, consolidation or merger. The provisions of
this clause shall similarly apply to successive reorganizations,
reclassifications, consolidations, or mergers. The Corporation shall not effect
any such reorganization, reclassification, consolidation or merger unless, (i)
in the case of a merger or consolidation in which the consideration receivable
upon consummation of such merger or consolidation by a holder of shares of
Common Stock consists solely of cash, either (x) simultaneously with the
consummation thereof, the Corporation shall pay to the Holder of the Warrant
Certificate evidencing such Warrants an amount in cash equal to (A) the amount
in cash that would be received upon such consummation by a holder of the number
of shares of Common Stock deliverable (immediately prior to such consummation)
upon exercise of such Warrants less (B) the Exercise Price or (y) the Exercise
Price for any Warrant exceeds the amount in cash that would be so received or
(ii) in all other cases, prior to the consummation thereof, the successor
corporation (if other than the Corporation) resulting from such reorganization,
reclassification, consolidation, or merger shall assume, by written instrument,
the obligation to deliver to the holders of this Warrant such shares of stock,
securities or property, including cash, which, in accordance with the foregoing
provisions, such holders shall be entitled to receive upon such exercise.
(d) Certain Other Dividends and Distributions. In case at any time or
from time to time after the Original Issuance Date Sterling shall effect a
Special Dividend (other than a Permitted Dividend or a dividend or distribution
upon a capital reorganization, reclassification, consolidation or merger to
which Section 4.01(c) applies), then, and in each such case, effective
immediately prior to the opening of business on the day after the date for the
determination of the holders of Common Stock entitled to receive such
distribution, the number of shares of Common Stock into which each Warrant is
exercisable shall be adjusted to that number determined by multiplying the
number of shares of Common Stock into which each Warrant is exercisable
immediately prior to the close of business on such date of determination by a
fraction, (i) the numerator of which shall be the Current Market Value per share
of Common Stock on such date for determination and (ii) the denominator of which
shall be such Current Market Value per share of Common Stock minus the portion
applicable to one share of Common Stock of the fair market value (as determined
in good faith by the Board of Directors of Sterling) of such securities, cash or
other assets so distributed.
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(e) Deferral in Certain Circumstances. If the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution, and shall thereafter, and before the
distribution to stockholders thereof, legally abandon its plan to pay or deliver
such dividend or distribution, then thereafter no adjustment in the number of
shares of Common Stock purchasable upon exercise of the Warrants granted by this
Section 4 or in the Exercise Price then in effect shall be required by reason of
the taking of such record and, as to any Warrants that remain outstanding, any
adjustment previously made in respect thereof shall be rescinded and annulled.
In any case in which the provisions of this Article 4 shall require that an
adjustment shall become effective immediately after a record date of an event,
the Corporation may defer, until the occurrence of such event, issuing to the
holder of any Warrant exercised after such record date and before the occurrence
of such event the shares of capital stock issuable upon such exercise by reason
of the adjustment required by such event and issuing to such holder only the
shares of capital stock issuable upon such exercise before giving effect to such
adjustments, and paying to such holder any amount in cash in lieu of any
fractional shares of capital stock pursuant to Section 4.05; provided, however,
that the Corporation shall deliver to such holder an appropriate instrument or
due xxxx evidencing such holder's right to receive such additional shares and
such cash on the date of the occurrence of such event.
(f) De Minimis Adjustments. No adjustment in the number of shares of
Common Stock purchasable upon the exercise of any Warrant shall be required
unless such adjustment would require an increase or decrease of at least one
percent in the number of shares of Common Stock purchasable upon the exercise of
such Warrant; provided, however, that any adjustments which are not required to
be made by reason of this Section 4.01(f) shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
4.01(f) shall be made to the nearest one-thousandth of a share.
(g) Other Adjustments. In addition to the foregoing adjustments
required by Sections 4(a), (b) or (d), Sterling may make such reductions in the
Exercise Price as it may, in good faith, deem advisable in order that any event
treated for Federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients.
(h) Determination of Current Market Value and Related Deliveries. If at
any time the Current Market Value of any security is required to be calculated
pursuant to the terms of this Agreement, the determination of such Current
Market Value, if calculated in accordance with the terms of this Agreement,
absent manifest error, shall be conclusive and binding on all Persons. If at any
time the Current Market Value of any security is required to be calculated
pursuant to the terms of this Agreement, and such Current Market Value is
determined as if such security is not registered under the Exchange Act,
Sterling shall, upon request of any Holder, deliver to the Warrant Agent a
report of an Independent Financial Expert specifying the amount of such Current
Market Value as determined by such Independent Financial Expert and containing a
brief description on the factors on which such determination was based. The
Warrant Agent shall have no duty with respect to any such report, except to keep
it on file and available for inspection by the Holders.
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(i) Warrant Price Adjustment. Whenever the number of shares of Common
Stock into which a Warrant is exercisable is adjusted as provided in Sections
4.01(a), (b) or (d), the Exercise Price payable upon exercise of the Warrant
shall simultaneously be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction, the numerator of which shall be the
number of shares of Common Stock into which such Warrant was exercisable
immediately prior to such adjustment, and the denominator of which shall be the
number of shares of Common Stock into which such Warrant was exercisable
immediately thereafter.
Section 4.02. Notice of Adjustment. Whenever the number of shares
of Common Stock or other stock or property purchasable upon the exercise of each
Warrant is required to be adjusted pursuant to Section 4.01, Sterling shall
deliver to the Warrant Agent a certificate setting forth (a) the number of
shares of Common Stock or other stock or property purchasable upon the exercise
of each Warrant and the Exercise Price therefor after such adjustment, (b) a
brief statement of the facts requiring such adjustment and (c) the computation
by which such adjustment was made. Such certificate shall be conclusive evidence
of the correctness of such adjustment absent manifest error. The Warrant Agent
shall not be deemed to have knowledge of such adjustment unless and until it
shall have received such certificate. Upon receipt of such certificate, the
Warrant Agent shall mail notice of the adjustment described in such certificate
to each Holder at the expense of Sterling. 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 to inspect such certificate during reasonable 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 securities or property purchasable upon exercise of any Warrant,
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 (or the kind or amount) of any shares of Common Stock or other
securities or property which may be purchasable on exercise of any Warrant. The
Warrant Agent shall not be responsible for any failure of Sterling to make any
cash payment or to issue, transfer or deliver any shares of Common Stock or
other securities or property upon the exercise of any Warrant.
Section 4.03. Statement on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to
Section 4.01, and Warrant Certificates issued after such adjustment may state
the same Exercise Price and the same number and kind of shares of Common Stock
as are stated in the Warrant Certificates initially issued pursuant to this
Agreement. Sterling may, however, at any time in its sole discretion (which
shall be conclusive), make any change in the form of Warrant Certificate that it
may deem appropriate to reflect any such adjustment and that does not affect the
substance thereof 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 so changed.
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Section 4.04. Notice of Consolidation, Merger or Sale of
Substantially All Assets, Etc. In the event that, at any time after the date
hereof and prior to 5:00 p.m., New York City time, on the Expiration Date, (a)
Sterling shall consolidate with, merge with or into or sell, transfer or
otherwise dispose of all or substantially all of its properties, assets or
business (except a merger in which Sterling is the surviving corporation and the
holders of Common Stock (or other securities or property purchasable upon
exercise of the Warrants) receive no consideration in respect of their shares)
or (b) Sterling shall dissolve, liquidate or wind-up its operations, then in any
one or more of such cases, Sterling shall cause to be mailed to the Warrant
Agent and each Holder, at the earliest practicable time (and, in any event, not
less than 20 calendar days before any record date or, if no record date applies,
before any date set for definitive action), notice of the date on which such
consolidation, merger, sale, dissolution, liquidation or winding up shall take
place, as the case may be. Such notice shall also set forth such facts as shall
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the kind and amount of shares of Common Stock and
other securities, money and other property deliverable upon exercise of the
Warrants. Such notice shall also specify the date as of which the holders of
record of shares of Common Stock or other securities or property issuable upon
exercise of the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
Section 4.05. Fractional Interests. Notwithstanding anything to
the contrary contained in this Agreement, if the number of shares of Common
Stock purchasable on the exercise of each Warrant is adjusted pursuant to the
provisions of Section 4.01, Sterling shall not be required to issue any fraction
of a share of Common Stock or to distribute a certificate that evidences a
fraction of a share of Common Stock upon any subsequent exercise of any Warrant.
If Warrant Certificates evidencing more than one Warrant shall be surrendered
for exercise at the same time by the same Holder, the number of full shares of
Common Stock which shall be issuable upon such exercise thereof shall be
computed on the basis of the aggregate number of Warrants evidenced by Warrant
Certificates so surrendered. If any fraction of a share of Common Stock would,
except for the provisions of this Section 4.05, be issuable on the exercise of
any Warrant (or specified portion thereof), in lieu of the issuance of such
fractional share, Sterling shall pay the Holder of such Warrant an amount in
cash equal to the then Current Market Value per share of Common Stock multiplied
by such fraction (computed to the nearest whole cent). The Holders, by their
acceptance of the Warrant Certificates, expressly waive their right to receive
any fraction of a share of Common Stock or a stock certificate representing a
fraction of a share of Common Stock instead of such cash.
Section 4.06. Concerning All Adjustments. Notwithstanding anything
to the contrary contained in this Agreement, if an adjustment is made under any
provision of Article IV on account of any event, transaction, circumstance,
condition or happening, no additional adjustment shall be made under any other
provision of Article IV on account of such event, transaction, circumstance,
condition or happening. Unless otherwise expressly provided in this Article IV,
all determinations and calculations required or permitted under this Article IV
shall be made by Sterling or its Board
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of Directors, as appropriate, and all such calculations and determinations shall
be conclusive and binding in the absence of manifest error.
ARTICLE V
Loss, Theft, Destruction Or Mutilation of Warrant Certificates
Upon receipt by Sterling and the Warrant Agent of evidence
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of any Warrant Certificate, and an indemnity bond in form and amount
and with corporate surety satisfactory to them, and (in the case of mutilation)
upon surrender and cancellation thereof, then, in the absence of notice to
Sterling or the Warrant Agent that the Warrants represented thereby have been
acquired by a bona fide purchaser, Sterling shall issue and the Warrant Agent
shall countersign and deliver to the Holder of the lost, stolen, destroyed or
mutilated Warrant Certificate, in exchange and substitution for or in lieu
thereof, a new Warrant Certificate of the same tenor and representing an
equivalent number of Warrants. Upon the issuance of any new Warrant Certificate
under this Article V, Sterling 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 fees and expenses of the Warrant
Agent) in connection therewith. Every new Warrant Certificate executed and
delivered pursuant to this Article V in lieu of any lost, stolen, destroyed or
mutilated Warrant Certificate shall constitute an original contractual
obligation of Sterling, whether or not the allegedly lost, stolen, destroyed or
mutilated Warrant Certificates shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Article V are exclusive and shall preclude (to
the extent lawful) all other rights or remedies with respect to the replacement
of lost, stolen, destroyed or mutilated Warrant Certificates.
ARTICLE VI
Authorization and Reservation
of Common Stock; Purchase of Warrants
Section 6.01. Reservation of Authorized Common Stock. Sterling
shall at all times reserve and keep available for issue upon the exercise of
Warrants, such number of its authorized but unissued shares of Common Stock or
other securities deliverable upon exercise of Warrants as will be sufficient to
permit the exercise in full of all outstanding Warrants and shall take all
action required to increase the authorized number of shares of Common Stock if
necessary to permit the conversion of all outstanding Warrants. Before taking
any action that would cause an adjustment reducing the Exercise Price below the
then par value of any of the shares of Common Stock into which the Warrants are
exercisable, Sterling will take any corporate action that may be necessary in
order that Sterling may validly and legally issue fully
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paid and non-assessable shares of such Common Stock at such adjusted Exercise
Price. Sterling will cause appropriate evidence of ownership of such Common
Stock or other securities to be delivered to the Warrant Agent upon its request
for delivery upon the exercise of Warrants, and all such shares of Common Stock
will, at all times, be duly approved for listing subject to official notice of
issuance on each securities exchange, interdealer quotation system or market, if
any, on which such Common Stock is then listed. Sterling covenants that all
Common Stock or other securities that may be issued upon the exercise of the
Warrants will, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free from preemptive rights and all taxes, liens, charges,
encumbrances and security interests.
Section 6.02. Purchase of Warrants by Sterling. Sterling shall
have the right, except as limited by law or other agreement, to purchase or
otherwise acquire Warrants at such times, in such manner and for such
consideration as it may deem appropriate; provided, however, that Sterling shall
not purchase any Warrants from any Holder unless the other Holders are given the
opportunity to include their Warrants in such sale pro rata based upon the
number of Warrants held by each of the Holders. In the event Sterling shall
purchase or otherwise acquire Warrants, the related Warrant Certificates shall
thereupon be delivered to the Warrant Agent for cancellation; provided, however,
that unless and until the Warrant Certificates evidencing such Warrants are
surrendered by Sterling to the Warrant Agent for cancellation, such purchase or
acquisition shall not operate as a redemption or termination of the right
represented by such Warrants. Any Warrants purchased or otherwise acquired by
Sterling shall not be outstanding for any purpose.
ARTICLE VII
Warrant Holders Not Deemed Stockholders
Prior to the exercise of any Warrant, nothing contained in this
Agreement or any Warrant Certificate shall be construed as conferring on the
Holder of any Warrant or Warrant Certificate any rights whatsoever as a
stockholder of Sterling, either at law or in equity, including the right to vote
or to consent to any action of the stockholders, to receive dividends or other
distributions, to exercise any preemptive right or to receive any notice of
meetings of stockholders and, except as otherwise provided in this Agreement,
shall not be entitled to receive any notice of any proceedings of Sterling.
ARTICLE VIII
The Warrant Agent
Section 8.01. Appointment and Acceptance of Agency. Sterling
hereby appoints the Warrant Agent to act as agent for Sterling in accordance
with the instructions set forth in this
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Agreement and the Warrant Agent hereby accepts the agency established by this
Agreement and agrees to perform the same on the terms and conditions herein set
forth.
Section 8.02. Correctness of Statements; Distribution of Warrants.
The statements contained herein and in each Warrant Certificate shall be taken
as statements of Sterling, and the Warrant Agent assumes no responsibility for
the correctness of any of the same except as describe the Warrant Agent or any
action taken by it. The Warrant Agent assumes no responsibility with respect to
the distribution of the Warrants except as herein otherwise provided.
Section 8.03. Use of Agents. The Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
thereunder either itself (through its employees) or by or through its attorneys
or agents (which shall not include its employees) and shall not be responsible
for the misconduct or negligence of any agent appointed, provided that due care
had been exercised in the appointment and continued employment thereof.
Section 8.04. Proof of Actions Taken. Whenever in the performance
of its duties under this Agreement, the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by Sterling prior to
taking or suffering any action hereunder, such fact or matter (unless such
evidence in respect thereof be herein specifically prescribed) may, in the
absence of bad faith on the part of the Warrant Agent, be deemed to be
conclusively proved and established by a certificate signed by the Chairman of
the Board, President, Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, any Vice President, the Treasurer or Secretary of Sterling
and delivered to the Warrant Agent; and such certificate, in the absence of bad
faith on the part of the Warrant Agent, shall be full authorization to the
Warrant Agent for any action taken, suffered or omitted by it under the
provisions of this Agreement in reliance upon such certificate.
Section 8.05. Compensation; Indemnity. Sterling agrees to pay the
Warrant Agent compensation for all services rendered by the Warrant Agent in the
performance of its duties under this Agreement. Sterling agrees to reimburse the
Warrant Agent for all expenses, taxes and governmental charges and other charges
of any kind and nature incurred by the Warrant Agent (including reasonable fees
and expenses of the Warrant Agent's counsel and agents) in the performance of
its duties under this Agreement. Sterling also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expenses
incurred without negligence or willful misconduct on the part of the Warrant
Agent, for anything done or omitted by the Warrant Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the premises. The
indemnity provided for herein shall survive the expiration of the Warrants and
the termination of this Agreement. The costs and expenses incurred in enforcing
this right of indemnification shall be paid by Sterling. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Warrant Agent
be liable for special, indirect or consequential loss or damage of any kind
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whatsoever (including lost profits), even if the Warrant Agent has been advised
of the likelihood of such loss or damage and regardless of the form of the
action.
Section 8.06. Legal Proceedings. The Warrant Agent shall be under
no obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless Sterling or one or more Holders
shall furnish the Warrant Agent with reasonable security and indemnity
satisfactory to the Warrant Agent for any costs and expenses which may be
incurred, but this provision shall not affect the power of the Warrant Agent to
take such action as the Warrant Agent may consider proper, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrants or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the Holders, as their respective rights or interests may appear.
Section 8.07. Other Transactions Involving Sterling. 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 Sterling or
become pecuniarily interested in any transactions in which Sterling may be
interested, or contract with or lend money to Sterling or otherwise act as fully
and freely as though it were not Warrant Agent under this Agreement or such
director, officer or employee. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for Sterling or for any other legal entity
including acting as transfer agent or as a lender to Sterling or an affiliate
thereof.
Section 8.08. Actions as Agent. The Warrant Agent shall act
hereunder solely as agent, and its duties shall be determined solely by the
provisions of this Agreement. No implied duties or obligations shall be read
into this Agreement against the Warrant Agent. The Warrant Agent shall not be
liable for anything which it may do or refrain from doing in connection with
this Agreement except for its own gross negligence or willful misconduct.
Section 8.09. Liability of Warrant Agent. The Warrant Agent may
conclusively rely upon and shall be protected by Sterling and shall not incur
any liability or responsibility to Sterling or to any Holder for or in respect
of any action taken, suffered or omitted by it (a) in connection with its
administration of this Agreement or (b) in reliance on any Warrant Certificate
or certificate for shares of stock or other securities of Sterling, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter,
direction, statement, notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed, executed, sent, presented and, where necessary, verified or
acknowledged, by the proper party or parties.
Section 8.10. Validity of Agreement. The Warrant Agent shall not
be under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution and delivery hereof by
the Warrant Agent) or in respect of the validity or
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execution of any Warrant (except its counter-signature thereof); nor shall it be
responsible for any breach by Sterling of any covenant or condition contained in
this Agreement or in any Warrant Certificate; nor shall the Warrant Agent by any
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any underlying securities (or other stock) to be
issued pursuant to this Agreement or any Warrant, or as to whether any
underlying securities (or other stock) will, when issued, be validly issued,
fully paid and non-assessable, or as to the Exercise Price or the number or
amount of underlying securities or other securities or other property issuable
upon exercise of any Warrant.
Section 8.11. Acceptance of Instructions. The Warrant Agent is
hereby authorized and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of the Board, President,
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, any
Vice President or Secretary of Sterling, and to apply to such officers for
advice or instructions in connection with its duties, and shall not be liable
for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or officers or for any delay in acting while
waiting for those instructions. Any application by the Warrant Agent for written
instructions from Sterling may, at the option of the Warrant Agent, set forth in
writing any action proposed to be taken or omitted by the Warrant Agent under
this Agreement and the date on or after which such action shall be taken or such
omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a proposal
included in any such application on or after the date specified in such
application (which date shall not be less than ten Business Days after the date
any officer of Sterling actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Warrant Agent shall have received written instructions in response to such
application subject to the proposed action or omission and/or specifying the
action to be taken or omitted.
Section 8.12. Right to Consult and Rely Upon Counsel. Before the
Warrant Agent acts or refrains from acting, it may at any time consult with
legal counsel (who may be legal counsel for Sterling), and the opinion or advice
of such counsel shall be full and complete authorization and protection to the
Warrant Agent and the Warrant Agent shall incur no liability or responsibility
to Sterling or to any Holder for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
Section 8.13. Change of Warrant Agent. (a) The Warrant Agent, or
any successor to it hereafter appointed, may resign from its position as such
and be discharged from all further duties and liabilities hereunder (except
liabilities arising as a result of the Warrant Agent's own gross negligence or
willful misconduct), after giving one month's prior written notice to Sterling,
upon (but only upon) a duly appointed successor Warrant Agent having been
appointed and having accepted such appointment in writing. Sterling may remove
the Warrant Agent upon not less than 30 days' prior written notice specifying
the date when such discharge shall take effect, and the Warrant Agent shall
thereupon in like manner be discharged from all further duties and liabilities
hereunder (except liabilities arising as a result of the Warrant Agent's own
gross negligence or
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willful misconduct), upon (but only upon) a duly appointed successor Warrant
Agent having been appointed and having accepted such appointment in writing.
Sterling shall cause to be mailed, at the expense of Sterling, to each Holder a
copy of said notice of resignation or notice of removal, as the case may be.
Upon such resignation or removal Sterling shall appoint in writing a successor
to the Warrant Agent. If Sterling shall fail to make such appointment within a
period of 30 calendar days after it has been notified in writing of such
resignation by the resigning Warrant Agent or after such removal, then the
existing Warrant Agent or the Holder of any Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to the original Warrant Agent, either by
Sterling or by such a court, the duties of the Warrant Agent shall be carried
out by Sterling.
(b) Any successor to the Warrant Agent, whether appointed by
Sterling or by a court, shall be a bank (or subsidiary thereof) or trust company
doing business under the laws of the United States or any state thereof, in good
standing and having a combined capital and surplus of not less than $50,000,000.
The combined capital and surplus of any such successor to the Warrant Agent
shall be deemed to be the combined capital and surplus as set forth in the most
recent annual report of its condition published by such successor to the Warrant
Agent prior to its appointment; provided that such reports are published at
least annually pursuant to law or to the requirements of a federal or state
supervising or examining authority. After acceptance in writing of such
appointment by the successor to the Warrant Agent, it shall be vested with the
same authority, powers, rights, immunities, duties and responsibilities as its
predecessor Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, the predecessor Warrant Agent shall in all events
deliver and transfer to the successor Warrant Agent all property, if any, at the
time held hereunder by the predecessor Warrant Agent and if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of Sterling and
shall be legally and validly executed and delivered by the resigning or removed
Warrant Agent. As soon as practicable after such appointment, Sterling shall
give notice thereof to the predecessor Warrant Agent and the Holders. Failure to
give any notice provided for in this Section 8.13, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
Section 8.14. Successor Warrant Agent. Any corporation into which
the Warrant Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party, shall be the successor Warrant Agent under this
Agreement without any further act; provided, however, that such corporation
would be eligible for appointment as a successor to the Warrant Agent under the
provisions of Section 8.13 hereof. Any such successor Warrant Agent shall
promptly cause notice of its succession as Warrant Agent to be mailed to
Sterling and the Holders.
Section 8.15. Other. (a) No provision of this Agreement shall
require the Warrant Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for
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believing that repayment of such funds or adequate indemnification against such
risk or liability is not reasonably assured to it.
(b) The Warrant Agent shall not be required to take notice or be
deemed to have notice of any fact, event or determination (including any dates
or events defined in this Agreement or the designation of any Person as an
acquiring Person or Affiliate) under this Agreement unless and until the Warrant
Agent shall be specifically notified in writing by Sterling of such fact, event
or determination.
ARTICLE IX
Miscellaneous
Section 9.01. Money Deposited with the Warrant Agent. The Warrant
Agent shall not be required to pay interest on any moneys deposited pursuant to
the provisions of this Agreement, except such as it shall agree in writing with
Sterling to pay thereon. Any moneys, securities or other property which at any
time shall be deposited by Sterling or on its behalf with the Warrant Agent
pursuant to this Agreement shall be and are hereby assigned, transferred and set
over to the Warrant Agent in trust for the purpose for which such moneys,
securities or other property shall have been deposited; but such moneys,
securities or other property need not be segregated from other funds, securities
or other property except to the extent required by law.
Section 9.02. Payment of Taxes. All Common Stock or other
securities issuable upon the exercise of Warrants shall be validly issued, fully
paid and non-assessable. Sterling shall pay all expenses in connection with, and
all taxes and other governmental charges (other than income taxes) that may be
imposed with respect to the issuance or delivery of any share of Common Stock
issuable upon the exercise of the Warrants, unless such tax or charge is imposed
by law upon such issuance or delivery, in which case such taxes or charges shall
be paid by such holder. Sterling shall not be required, however, to pay any tax
or other charge imposed in connection with any transfer involved in the issuance
of any certificate evidencing shares of Common Stock or other securities or
property issuable upon the exercise of the Warrants in any name other than that
of the holder of the Certificates evidencing such Warrants, and in such case the
Warrant Agent and Sterling shall not be required to issue any stock certificate
or pay any cash until such tax or other charge has been paid or it has been
established to the Warrant Agent's and Sterling's reasonable satisfaction that
no such tax or charge is due.
Section 9.03. Merger, Consolidation or Sale of Assets of Sterling.
Sterling will not merge into or consolidate with any other Person, or sell or
otherwise transfer all or substantially all of its property, assets or business
to any Person (other than a merger, consolidation or sale contemplated by
4.01(c) hereof in which the consideration payable to the holders of shares of
Common Stock in exchange for their shares consists solely of cash), unless the
Person resulting from such merger or consolidation, or transferee of such
property, assets or business, as the case
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may be, executes with the Warrant Agent a supplemental agreement providing for
the express assumption by such Person of the due and punctual performance and
observance of each and every covenant and condition of this Agreement to be
performed and observed by Sterling.
Section 9.04. Notices. (a) Any notice, request, demand or report
(each, a "Communication") required or permitted to be given or made by this
Agreement shall be in writing
(b) Any Communication authorized by this Agreement to be given or
made by the Warrant Agent or by any Holder to or on Sterling shall be
sufficiently given or made if sent by registered or certified mail and shall be
deemed given upon receipt, or by facsimile or electronic mail, addressed (until
another address is filed by Sterling with the Warrant Agent) as follows:
Sterling Chemicals, Inc.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
E-Mail: xxxxx@xxxxxxxxxxxxxxxxx.xxx
(c) Any Communication authorized by this Agreement to be given or
made by Sterling or by any Holder to or on the Warrant Agent shall be
sufficiently given or made if sent by registered or certified mail and shall be
deemed given upon receipt, or by facsimile or electronic mail, addressed (until
another address is filed by the Warrant Agent with Sterling) as follows:
Xxxxx Fargo Bank Minnesota, N.A.
Shareowner Services
Attn: Account Management
000 X. Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, XX 00000
(d) Any Communication authorized by this Agreement to be given or
made by Sterling or the Warrant Agent to any Holder shall be sufficiently given
or made if sent by first-class mail, postage prepaid, or by facsimile or
electronic mail, addressed to such Holder at the address of such Holder as shown
on the registry books of Sterling. Sterling shall deliver a copy of any notice
or demand it delivers to any Holder to the Warrant Agent and the Warrant Agent
shall deliver a copy of any notice or demand it delivers to any Holder to
Sterling.
Section 9.05. Governing Law. THE VALIDITY, INTERPRETATION AND
PERFORMANCE OF THIS AGREEMENT AND THE WARRANT CERTIFICATES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-23-
Section 9.06. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Sterling and the Warrant Agent and their respective
successors and assigns, and the Holders from time to time of the Warrants.
Nothing in this Agreement is intended or shall be construed to confer upon any
Person, other than Sterling, the Warrant Agent and the Holders of the Warrants,
any right, remedy or claim under or by reason of this Agreement or any part
hereof.
Section 9.07. Counterparts. This Agreement may be executed
manually or by facsimile in any number of counterparts, each of which shall be
deemed an original, but all of which together constitute one and the same
instrument.
Section 9.08. Amendments. (a) The Warrant Agent may, without the
consent or concurrence of the Holders, enter into one or more supplemental
agreements or amendments with Sterling for the purpose of (i) evidencing the
rights of the Holders upon consolidation, merger, sale, transfer,
reclassification, liquidation or dissolution, (ii) making any changes or
corrections in this Agreement that are required to cure any ambiguity, to
correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein or any clerical omission or mistake
or manifest error herein contained, (iii) making such other provisions in regard
to matters or questions arising under this Agreement as shall not adversely
affect the interest of the Holders in any material respect or be inconsistent
with this Agreement or any supplemental agreement or amendment or (iv) adding
further covenants and agreements of Sterling in this Agreement or surrendering
any rights or power reserved to or conferred upon Sterling in this Agreement.
(b) With the consent of the Holders of Warrant Certificates
evidencing at least a majority in number of the Warrants at the time
outstanding, Sterling and the Warrant Agent may at any time and from time to
time by supplemental agreement or amendment add any provisions to or change in
any manner or eliminate any of the provisions of this Agreement or of any
supplemental agreement or modify in any manner the rights and obligations of the
Holders and Sterling; provided, however, that no such supplemental agreement or
amendment shall, without the consent of the Holder of the Warrant Certificate
evidencing each outstanding Warrant affected thereby, (i) alter the provisions
of this Agreement so as to adversely affect in any material respect the terms
upon which Warrants are exercisable, (ii) decrease the number of underlying
securities (other than pursuant to adjustments made in accordance with Article
IV hereof) or (iii) amend the provisions of Section 9.08. Notwithstanding
anything to the contrary contained in this Agreement, no supplement agreement or
amendment that changes the rights and duties of the Warrant Agent under this
Agreement shall be effective against the Warrant Agent without the written
consent of the Warrant Agent, provided, further, that the consent of a majority
of the "Qualifying Holders" (as that term is defined in the Tag Along Agreement)
shall be required for any amendment, modification, restatement or supplement
hereto that materially adversely affects the rights of the Qualifying Holders
pursuant to Article II or III of the Tag Along Agreement or that otherwise
materially adversely affects the rights or obligations of the Qualifying Holders
thereunder. For purposes of this Section 9.08(b), Warrants owned by Sterling or
any Affiliate of Sterling shall not be deemed outstanding, provided, however,
that the consent of a majority of Affiliates of Sterling owning
-24-
Warrants shall be required for any amendment, modification, restatement or
supplement hereto that materially adversely affects the rights or obligations of
such Affiliates of Sterling hereunder.
Section 9.09. Common Stock Legend. In the event a Holder exercises
any Warrant evidenced by any Legended Warrant Certificates pursuant to an
exemption from the registration requirements of the Securities Act, any Common
Stock or other securities of Sterling issuable upon exercise of such Warrant
shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAW (COLLECTIVELY, THE "ACTS") AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
UNLESS MADE PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACTS OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF. FURTHER, THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF UNLESS AND UNTIL (1) SUCH SECURITIES HAVE BEEN
REGISTERED UNDER THE ACTS OR (2) THE HOLDER OF SUCH SECURITIES
PROVIDES THE COMPANY WITH (A) AN UNQUALIFIED WRITTEN OPINION OF
LEGAL COUNSEL, WHICH COUNSEL AND OPINION (IN FORM AND SUBSTANCE)
SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT
THAT THE PROPOSED DISPOSITION OF SUCH SECURITIES MAY BE EFFECTED
WITHOUT REGISTRATION UNDER THE ACTS OR (B) SUCH OTHER EVIDENCE AS
MAY BE REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED
DISPOSITION OF SUCH SECURITIES MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE ACTS.
Section 9.10. Third Party Beneficiaries. The Holders shall be
third party beneficiaries to the agreements made hereunder between Sterling, on
the one hand, and the Warrant Agent, on the other hand, and each Holder shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
Section 9.11. Waivers. Sterling may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if (i) Sterling has obtained the written consent of Holders of Warrant
Certificates evidencing a majority of the then outstanding Warrants, and (ii)
any consent required pursuant to Section 9.08 has been obtained.
-25-
Section 9.12. Inspection. The Warrant Agent shall cause a copy of
this Agreement to be available at all reasonable times at the office of the
Warrant Agent for inspection by the Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
Section 9.13. Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section 9.14. Entire Agreement. This Agreement sets forth the
entire agreement of the parties hereto as to the subject matter hereof and
supersedes all previous, agreements among all or some of the parties hereto with
respect thereto, whether written, oral or otherwise.
[signatures follow]
-26-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed, as of the day and year first above written.
STERLING CHEMICALS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Printed Name: Xxxxx X. Xxxxxx
---------------------------------
Title: President and Co-CEO
----------------------------------------
XXXXX FARGO BANK MINNESOTA, N.A.
as Warrant Agent
By: /s/ XXXXXX XXXXXX
------------------------------------------
Xxxxxx Xxxxxx - Assistant Vice President
-27-
EXHIBIT A
Form Of Warrant Certificate
A-1
STERLING CHEMICALS, INC.
No.____________ ______________ Warrants
WARRANTS TO PURCHASE COMMON STOCK
This certifies that _____________, or its registered assigns, is
the owner of the number of Warrants set forth above, each of which represents
the right to purchase, commencing December 19, 2002, from STERLING CHEMICALS,
INC., a Delaware corporation ("Sterling"), one share of the common stock, par
value $0.01 per share (the "Common Stock"), of Sterling (subject to adjustment
as provided in the Warrant Agreement hereinafter referred to) at the purchase
price (the "Exercise Price") of $52.00 per share (subject to adjustment as
provided herein), upon surrender hereof at the office of Xxxxx Fargo Bank
Minnesota, N.A. or to its successor as the warrant agent under the Warrant
Agreement (any such warrant agent being herein call the "Warrant Agent"), with
the Subscription Form on the reverse hereof duly executed, with signature
guaranteed as therein specified and simultaneous payment in full by check
payable to the order of Xxxxx Fargo Bank Minnesota, N.A. of the purchase price
for the shares as to which the Warrant(s) represented by this Warrant
Certificate are exercised, all subject to the terms and conditions hereof and of
the Warrant Agreement. This Warrant Certificate may be exercised as to all or
any whole number of the Warrants evidenced hereby.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of December 19, 2002 (the "Warrant Agreement") by and
between Sterling and Xxxxx Fargo Bank Minnesota, N.A., as Warrant Agent, and is
subject to the terms and provisions contained therein, all of which terms and
provisions the Holder of this Warrant Certificate consents to 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
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of Sterling and the Holders of the Warrants. The summary
of the terms of the Warrant Agreement contained in this Warrant Certificate is
qualified in its entirety by express reference to the Warrant Agreement. All
capitalized terms used in this Warrant Certificate that are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
Copies of the Warrant Agreement are on file at the office of the
Warrant Agent and may be obtained by writing to the Warrant Agent at the
following address:
Xxxxx Fargo Bank Minnesota, N.A.
Shareowner Services
Attn: Account Management
000 X. Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, XX 00000
A-2
The number of shares of Common Stock purchasable upon the exercise
of each Warrant is subject to adjustment as provided in the Warrant Agreement.
In the event Sterling merges or consolidates with, or sells all or substantially
all of its assets to, another Person, each Warrant will, upon exercise, entitle
the Holder thereof to receive the number of shares of capital stock or other
securities or the amount of money and other property which the holder of the
number of shares of Common Stock or other securities or property deliverable
upon exercise of a Warrant is entitled to receive upon completion of such
merger, consolidation or sale.
As to any final fraction of a share which the same Holder of one
or more Warrants would otherwise be entitled to purchase upon exercise thereof
in the same transaction, Sterling shall pay the cash value thereof determined as
provided in the Warrant Agreement.
All Common Stock or other securities issuable upon the exercise of
Warrants shall be validly issued, fully-paid and non-assessable, and Sterling
shall pay all expenses in connection with, and all taxes and other governmental
charges that may be imposed with respect to the issuance or delivery of any
share of Common Stock issuable upon the exercise of the Warrants, unless such
tax or charge is imposed by law upon a holder thereof, in which case such taxes
or charges shall be paid by such holder. Sterling shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Common Stock or other securities or
property issuable upon the exercise of the Warrants in any name other than that
of the holder of the Certificates evidencing such Warrants, and in such case the
Warrant Agent and Sterling shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the Warrant Agent's and Sterling' reasonable satisfaction that no
tax or other charge is due.
This Warrant Certificate and all rights hereunder are transferable
by the registered Holder hereof, in any whole number of Warrants, in accordance
with the provisions of the Warrant Agreement, on the register maintained by the
Warrant Agent for such purpose at its office in South St. Xxxx, Minnesota, upon
surrender of this Warrant Certificate duly endorsed, or accompanied by a written
instrument of transfer form satisfactory to Sterling and the Warrant Agent duly
executed, with signatures guaranteed as specified in the attached Form of
Assignment, by the registered Holder hereof or his attorney duly authorized in
writing and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer. Upon any partial transfer, the Warrant Agent
will issue and deliver to such Holder a new Warrant Certificate with respect to
any portion not so transferred. Each taker and Holder of this Warrant
Certificate, by taking and holding the same, consents and agrees that prior to
the registration of transfer as provided in the Warrant Agreement, Sterling and
the Warrant Agent may treat the person in whose name the Warrants are registered
as the absolute owner hereof for any purpose and as the Person entitled to
exercise the rights represented hereby, any notice to the contrary
notwithstanding.
This Warrant Certificate may be exchanged, in accordance with the
terms of the Warrant Agreement, at the office of the Warrant Agent maintained
for such purpose in South St. Xxxx, Minnesota for Warrant Certificates
representing the same aggregate number of Warrants, each
A-3
new Warrant Certificate to represent such number of Warrants as the Holder
hereof shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the
Holder of this Warrant Certificate, as such, shall not be entitled to any rights
of a stockholder of Sterling, including, without limitation, the right to vote
or to consent to any action of the stockholders, to receive dividends or other
distributions, to exercise any preemptive right or to receive any notice of
meetings of stockholders, and shall not be entitled to receive any notice of any
proceedings of Sterling except as provided in the Warrant Agreement.
This Warrant Certificate shall be void and all rights evidenced
hereby shall cease on the Expiration Date.
A-4
This Warrant Certificate shall not be valid for any purpose until
it shall have been countersigned by the Warrant Agent.
Dated: STERLING CHEMICALS, INC.
---------------------------------
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
Countersigned:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Warrant Agent
By:
------------------------------------------------
Authorized Signatory
A-5
FORM OF REVERSE OF WARRANT CERTIFICATE
SUBSCRIPTION FORM
(to be executed only upon exercise of Warrants)
To:
-----------------------
The undersigned hereby irrevocably exercises ____ of the Warrants
represented by the within Warrant Certificate for the purchase of one (subject
to adjustment) share of Common Stock, par value $0.01 per share, of STERLING
CHEMICALS, INC., a Delaware corporation, and herewith makes payment of
$______________ (such payment being by check payable to the order of Xxxxx Fargo
Bank Minnesota, N.A. equal to the Exercise Price of the Warrants being
exercised), all at the exercise price and on the terms and conditions specified
in the within Warrant Certificate and the Warrant Agreement therein referred to,
and hereby surrenders this Warrant Certificate and all right, title and interest
therein to and directs that the Common Stock deliverable upon the exercise of
such Warrants be registered or placed in the name and at the address specified
below and delivered thereto.
Dated:
----------------------------- ---------------------------------
(Signature of Owner)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
---------------------------------
Signature Guaranteed By(1)
---------------
(1) The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act.
A-6
Securities and/or check to be issued to:________________________________
Please insert social security or identifying number:____________________
Name:
-------------------------------------------------------------------
Street Address:
---------------------------------------------------------
City, State and Zip Code:
-----------------------------------------------
A-7
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the
within Warrant Certificate hereby sells, assigns and transfers unto the
Assignee(s) named below (including the undersigned with respect to any Warrants
constituting a part of the Warrants evidenced by the within Warrant Certificate
not being assigned hereby) all of the rights of the undersigned under the within
Warrant Certificate, with respect to the whole number of Warrants set forth
below:
Name(s) of Assignee(s):
----------------------------------
Address:
-------------------------------------------------
No. of Warrants:
------------------------------------------
Please insert social security or other identifying number of assignee(s):
____________________
and does hereby irrevocably constitute and appoint______________________________
_______________________________ the undersigned's attorney to make such transfer
on the books of _____________________ maintained for such purposes, with full
power of substitution in the premises.
Dated:
----------------------------- -----------------------------------
(Signature of Owner)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
-----------------------------------
Signature Guaranteed By(2)
----------
(2) The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution"
as defined by Rule 17Ad-15 under the Exchange Act.
A-8
