Exhibit 4.5
EMCOR GROUP, INC.
and
[WARRANT AGENT]
As Warrant Agent
----------------
Warrant Agreement -- [Common Stock]
[Preferred Stock]*
Dated as of , 199_
-----------------
* Options Represented By Bracketed Or Blank Sections Herein Shall Be
Determined In Conformity With The Applicable Prospectus Supplement Or
Supplements
TABLE OF CONTENTS
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES....................................... 1
SECTION 1.1. Issuance of Warrants..................................................................... 1
SECTION 1.2. Execution and Delivery of Warrant Certificates........................................... 2
SECTION 1.3. Issuance of Warrant Certificates......................................................... 3
SECTION 1.4. Temporary Warrant Certificate............................................................ 3
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS............................................. 4
SECTION 2.1. Warrant Price............................................................................ 4
SECTION 2.2. Duration and Exercise of Warrants........................................................ 4
SECTION 2.3. No Fractional Shares to Be Issued........................................................ 5
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise...................................... 6
SECTION 2.5. Share Record Date........................................................................ 7
SECTION 2.6. Rights Upon Dissolution or Liquidation................................................... 8
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE............................... 8
SECTION 3.1. Adjustment of Warrant Price.............................................................. 8
[SECTION 3.2. Adjustment of shares of [Common] [Preferred] Stock
Purchasable Upon Exercise of Warrants......................................................... 14
SECTION 3.3. Statements on Warrants................................................................... 15
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES...................................... 15
SECTION 4.1. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates.......................................................................... 15
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates................................ 15
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights......................................... 16
SECTION 4.4. Reclassification, Consolidation, Merger, Share Exchange, Sale
or Conveyance................................................................................. 16
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Page
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES........................................... 17
SECTION 5.1. Exchange and Transfer of Warrant Certificates............................................ 17
SECTION 5.2. Treatment of Holders of Warrant Certificates............................................. 18
SECTION 5.3. Cancellation of Warrant Certificates..................................................... 19
ARTICLE VI.
CONCERNING THE WARRANT AGENT......................................... 19
SECTION 6.1. Warrant Agent............................................................................ 19
SECTION 6.2. Conditions of Warrant Agent's Obligations................................................ 19
(a) Compensation and Indemnification..................................................... 19
(b) Agent for the Company................................................................ 19
(c) Counsel.............................................................................. 20
(d) Documents............................................................................ 20
(e) Certain Transactions................................................................. 20
(f) No Liability for Interest............................................................ 20
(g) No Liability for Invalidity.......................................................... 20
(h) No Responsibility for Representations................................................ 20
(i) No Implied Obligations............................................................... 20
SECTION 6.3. Resignation and Appointment of Successor................................................. 21
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]................................ 23
[SECTION 7.1. Redemption.............................................................................. 23
SECTION 7.2. Accelerated Share Conversion Date........................................................ 23
SECTION 7.3. Conversion of Warrants into Shares....................................................... 24
SECTION 7.4. Notice of Proposed Actions............................................................... 25
ARTICLE VIII.
MISCELLANEOUS................................................ 26
SECTION 8.1. Amendment................................................................................ 26
SECTION 8.2. Notices and Demands to the Company and Warrant Agent..................................... 26
SECTION 8.3. Addresses................................................................................ 26
SECTION 8.4. Applicable Law........................................................................... 27
SECTION 8.5. Delivery of Prospectus................................................................... 27
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Page
SECTION 8.6. Obtaining of Governmental Approvals...................................................... 27
SECTION 8.7. Persons Having Rights under Warrant Agreement............................................ 27
SECTION 8.8. Headings................................................................................. 27
SECTION 8.9. Counterparts............................................................................. 27
SECTION 8.10. Inspection of Agreement................................................................. 27
iii
EMCOR GROUP, INC.
Form of [Common Stock][Preferred Stock]
Warrant Agreement*
THIS WARRANT AGREEMENT dated as of , 199_ between EMCOR Group,
Inc., a Delaware Corporation (the "Company,") and [Warrant Agent], as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually a
"Warrant") representing the right to purchase [ ] shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), [ ] shares of the
Company's preferred stock, par value $.10 per share (the "Preferred Stock",
collectively with the Common Stock, the "Warrant Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after (the "Detachable Date")][and shall not be separately
transferable] and each Warrant Certificate shall evidence one or more Warrants.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase Warrant Securities. [If
Offered Securities and Warrants -- Warrant Certificates shall be initially
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence
Warrants for each shares of Offered Securities included in such unit.]
--------
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
2
SECTION 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be executed on behalf of the Company by
[its Chairman of the Board, the President, any Senior Vice President, or any
Vice President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced in the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
-- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate total number not
exceeding Warrant Securities (except as provided in Sections 1.4, 3.1 and 4.2)
may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly
3
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ], without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company shall
execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period
from , through and including , the exercise price of each
Warrant will be . During the period from , through
and including , the exercise price of each Warrant will
be . Such purchase price of Warrant Securities is referred to
in this Warrant Agreement as the "Warrant Price". No adjustment shall be made
for any dividends on any Warrant Securities issuable upon exercise of any
Warrants.
(b) Warrants may be exercised by the holders thereof at any
time, at the Warrant Price then in effect, when the Warrant Securities are
registered pursuant to an effective registration statement under the Securities
Act. Warrants shall in no event be exercisable for the purchase of Warrant
Securities at any time when such Warrant Securities are not registered pursuant
to an effective registration statement under the Securities Act.
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The Company shall be required to register the Warrant
Securities, or holders will have such other rights, only as provided in Section
2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities and
of any subsequent lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The
registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part at any time after , upon surrender of the Warrant
Certificate with the form of election to purchase on the reverse side thereof
duly executed, to the Warrant Agent at the principal office of the Warrant Agent
[in the Borough of Manhattan, City and State of New York,] together with payment
of the Warrant Price for each share of [Common] [Preferred] Stock as to which
the Warrants are exercised, at or prior to 5:00 P.M. ([New York time]) on [the
earliest of (i) , (the "Scheduled Share Conversion Date"), (ii) the Accelerated
Share Conversion Date as defined in Section 7.1 hereof, or (iii) the business
day immediately preceding the Redemption Date as defined in Section 7.1 hereof]
[ [or such later date as the Company may designate, by notice to the Warrant
Agent and the holders of the Warrant Certificates mailed to their addresses as
set forth in the record books of the Warrant Agent] (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M. [New York City time], on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease].
(b) The Warrant Price for each share of [Common] [Preferred]
Stock pursuant to the exercise of a Warrant shall initially be , shall be
subject to adjustment as provided in Article VII hereof, and shall be payable in
lawful money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase on the reverse side thereof, duly executed, accompanied by
payment of the Warrant Price for the shares to be purchased and an amount equal
to any applicable transfer tax in cash, or by check, bank draft or postal or
express money order payable to the order of the Company, the Warrant Agent shall
thereupon promptly (i) requisition from any transfer agent of the [Common]
[Preferred] Stock of the Company certificates for the number of whole shares of
[Common] [Preferred] Stock to be purchased and, when appropriate, for the number
of fractional shares to be sold by the Warrant Agent, and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, (ii)
when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares or Warrants, and (iii) promptly after
receipt of such certificates cause the same to be delivered to or upon the order
of the registered holder of such Warrant Certificate, registered in such name or
names as may be designated by such holder, and , when appropriate, after receipt
promptly deliver such cash to or upon the order of the registered holder of such
Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate
shall exercise less than all the Warrants evidenced thereby, a new Warrant
Certificate evidencing Warrants equivalent to the Warrants remaining unexercised
shall be issued by the Warrant Agent to the
5
registered holder of such Warrant Certificate or to his duly authorized assigns,
subject to the provisions of Section 2.4 hereof.
(e) The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
monies received for the purchase of shares of [Common] [Preferred] Stock through
the exercise of Warrants.
SECTION 2.3. No Fractional Shares to Be Issued.
(a) Notwithstanding anything to the contrary contained in this
Agreement, if the number of shares of [Common] [Preferred] Stock purchasable on
the exercise of each Warrant is not a whole number, the Company shall not be
required to issue any fraction of a share of [Common] [Preferred] Stock or to
distribute stock certificates that evidence fractional shares of [Common]
[Preferred] Stock or to issue a Warrant Certificate representing a fractional
Warrant upon exercise of any Warrants. If Warrant Certificates evidencing more
than one Warrant shall be surrendered for exercise at one time by the same
holder, the number of full shares which shall be issuable upon exercise thereof
shall be computed on the basis of the aggregate number of Warrants so
surrendered. [If any fraction of a share of [Common] [Preferred] Stock would,
except for the provisions of this Section 2.3, be issuable on the exercise of
any Warrant or Warrants, the Company shall purchase such fraction for an amount
in cash equal to such fraction of the then current market price of a share of
[Common] [Preferred] Stock. The Warrant holders, by their acceptance of the
Warrant Certificates, expressly waive their right to receive any fraction of a
share of [Common] [Preferred] Stock or a stock certificate representing a
fraction of a share of [Common] [Preferred] Stock.
(b) If the number of shares purchasable upon the exercise of
each Warrant is adjusted pursuant to Section 3.1(l), the Company shall
nonetheless not be required to issue fractions of shares upon exercise of the
Warrants or to distribute share certificates which evidence fractional shares,
nor shall the Company be required to make any cash adjustment in respect of a
fractional interest in a share, but the fractional interest to which any person
is entitled shall be sold in the manner set forth in subsection (c) of this
Section 2.3 by the Warrant Agent, acting as agent for the person entitled to
such fractional interest, except as otherwise provided in such subsection.
(c) The Warrant Agent shall remit to such person the proceeds
of the sale of any such fractional interest sold by it as such agent. Fractional
interests shall be non-transferable except by or to the Warrant Agent acting as
herein authorized. The Warrant Agent may sell fractional interests on the basis
of market prices of the Warrants or shares of [Common] [Preferred] Stock as
determined by the Warrant Agent in its sole discretion. In lieu of making an
actual sale of a fractional interest, the Company may authorize the Warrant
Agent to value fractional interests without actual sale on the basis of the
current market price of the Warrants or shares of [Common] [Preferred] Stock as
determined by the Warrant Agent in its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on
Exercise. The Company covenants that it will at all times reserve and keep
available out of its authorized but unissued Warrant Securities or its
authorized and issued Warrant securities held in its
6
Treasury, solely for the purpose of issue upon exercise of Warrants, the full
number of Warrant Securities, if any, then issuable if all outstanding Warrants
then exercisable were to be exercised. The Company covenants that, subject to
payment of the Warrant Price, all shares of [Common] [Preferred] Stock which
shall be so issuable shall be duly and validly issued and fully paid and
nonassessable.
[The Company hereby authorizes and directs its current and
future transfer agents for the shares of [Common] [Preferred] Stock and for any
shares of the Company's capital stock issuable upon the exercise of any of the
Warrants at all times to reserve such number of authorized shares as shall be
requisite for such purpose. The Company will supply such transfer agents with
duly executed stock certificates for such purposes and will provide or otherwise
make available any cash which may be payable as provided in this Article II.]
The Company covenants that if any shares of [Common]
[Preferred] Stock required to be reserved for purposes of exercise of Warrants
require, under any federal or state law or rule or regulation of any national
securities exchange, registration with or approval of any governmental
authority, or listing on any national securities exchange before such shares may
be issued upon exercise, the Company will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered, approved or listed
on the relevant national securities exchange, as the case may be; provided,
however, that in no event shall such shares of [Common] [Preferred] Stock be
issued, and the Company is hereby authorized to suspend the exercise of all
Warrants, for the period during which such registration, approval or listing is
required but not in effect.
The Company further covenants and agrees that it will pay when
due and payable any and all Federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Warrant
Certificates or of any shares of [Common] [Preferred] Stock upon the exercise or
conversion of Warrants. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer involved in the
transfer or delivery of Warrant Certificates or the issuance or conversion or
delivery of Certificates for shares of [Common] [Preferred] Stock in a name
other than that of the registered holder of the Warrant Certificate evidencing
Warrants surrendered for exercise or to issue or deliver any certificates for
shares of [Common] [Preferred] Stock upon the exercise or conversion of any
Warrants until any such tax shall have been paid (any such tax being payable by
the holder of such Warrant Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name any
certificate for shares of [Common] [Preferred] Stock is issued upon the exercise
of Warrants shall for all purposes be deemed to have become the holder of record
of the shares of [Common] [Preferred] Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the [Common] [Preferred]
Stock transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding business day on which the [Common] [Preferred] Stock
transfer books of the
7
Company are open. Prior to the exercise of the Warrants evidenced thereby, the
holder of a [Common] [Preferred] Stock Warrant Certificate shall not be entitled
to any rights of a shareholder of the Company with respect to shares for which
the Warrants shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement relating to the rights of
holders of Warrant Certificates, in the event that, at any time after the date
hereof, there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then the Company shall give notice by first-class
mail to each holder of an outstanding Warrant at such holder's address as it
appears on the Warrant Register at the earliest practicable time (and, in any
event, not less than twenty days before any date set for definitive action), of
the date on which such dissolution, liquidation or winding up shall take place,
as the case may be. Such notice shall also specify the date as of which the
holders of record of [Common] [Preferred] Stock or other securities, if any,
underlying the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such dissolution,
liquidation or winding up, as the case may be, on which date each holder of
outstanding Warrants shall receive cash or other property (taking into account
the Warrant Price then if effect) which it would have been entitled to receive
had the Warrants been exercisable and exercised immediately prior to such
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Warrant Securities in shares of its [Common] [Preferred]
Stock, (ii) subdivide the outstanding Warrant Securities into a greater number
of shares, (iii) combine the outstanding Warrant Securities into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the shares of [Common] [Preferred] Stock (including any such
reclassification in connection with a consolidation, merger or share exchange in
which the Company is the continuing corporation), the Warrant Price in effect at
such time shall be adjusted so that the holder of any Warrant thereafter
surrendered for exercise shall be entitled to receive the number of shares of
[Common] [Preferred] Stock which he would have owned or have been entitled to
receive after the happening of any of the events described above had such
Warrant been exercised immediately prior to the record date in the case of a
dividend or the effective date in the case of a subdivision or combination. An
adjustment made pursuant to this subparagraph (a) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subparagraph (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
8
(b) In case the Company shall issue rights or warrants to all
holders of [Common] [Preferred] Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase shares of [Common] [Preferred] Stock at a price per share less than the
current market price per share of [Common] [Preferred] Stock (as defined for
purposes of this subparagraph (b) in subparagraph (e) below), at the record date
for the determination of stockholders entitled to receive such rights or
warrants, the Warrant Price in effect after such record date shall be determined
by multiplying such Warrant Price by a fraction, the numerator of which shall be
the number of shares of [Common] [Preferred] Stock outstanding at the close of
business on the record date for issuance of such rights or warrants plus the
number of shares of [Common] [Preferred] Stock which the aggregate offering
price of the total number of shares of [Common] [Preferred] Stock so offered
would purchase at such current market price, and the denominator of which shall
be the number of shares of [Common] [Preferred] Stock outstanding at the close
of business on the record date for issuance of such rights or warrants plus the
number of additional shares of [Common] [Preferred] Stock receivable upon
exercise of such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (h) below, after such record
date. In case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such consideration
shall be as determined by the Board of Directors of the Company, whose
determination shall be conclusive, and described in a statement filed with the
Warrant Agent. Shares of [Common] [Preferred] Stock owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not so
issued, the Warrant Price shall again be adjusted to be the Warrant Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall distribute to all holders of
shares of [Common] [Preferred] Stock (including any such distribution made in
connection with a consolidation, merger or share exchange in which the Company
is the continuing corporation) any shares of capital stock of the Company (other
than shares of [Common] [Preferred] Stock) or evidences of its indebtedness or
assets (excluding cash dividends or distributions paid from retained earnings of
the Company or from any surplus legally available for dividends under the laws
of the state of incorporation of the Company and dividends payable in shares of
[Common] [Preferred] Stock) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being hereinafter in this
subparagraph (c) called the "Securities"), then, in each such case, unless the
Company elects to reserve such Securities (or, at the option of the Company, pay
cash as provided below) for distribution to the holders of the Warrants upon the
exercise of the Warrants so that any such holder exercising Warrants will
receive such exercise, in addition to the Shares of [Common][Preferred] Stock to
which such holder is entitled, the amount and kind of such Securities which such
holder would have received if such holder had, immediately prior to the record
date for the distribution of the Securities, exercised its Warrants into Warrant
Securities (or, at the option of the Company, a sum equal to the value thereof
at the time of distribution as determined by the Company's Board of Directors in
its sole discretion), the Warrant Price shall be adjusted so that the same shall
equal the price determined by multiplying the Warrant Price in effect
immediately prior to the
9
date of such distribution by a fraction the numerator of which shall be the
current market price per share (as defined for purposes of this subparagraph (c)
in subparagraph (e) below) of the shares of [Common] [Preferred] Stock on the
record date mentioned above less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall be conclusive)
of the portion of the Securities so distributed allocable to one share of
[Common] [Preferred] Stock, and the denominator of which shall be the current
market price per share (determined as provided in subparagraph (e) below) of the
share of [Common] [Preferred] Stock. Such adjustment shall become effective
immediately prior to the opening of business on the day following the record
date for the determination of shareholders entitled to receive such
distribution. In the event that such distribution is not so made, the Warrant
Price shall again be adjusted to be the Warrant Price which would then be in
effect if such date fixed for the determination of shareholders entitled to
receive such distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the number
of shares of Warrant Securities into which a Warrant is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Warrant Securities in the form of any
right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith be
adjusted to equal the Warrant Price that would have applied had such right or
warrant never been declared, distributed or issued.
(e) For the purposes of any computation under subparagraph (b)
above, the current market price per share of [Common] [Preferred] Stock or of
any other security (herein collectively referred to as a "security") at the date
herein specified shall be deemed to be the average of the reported last sales
prices for the [thirty consecutive Trading Days (as defined below) commencing
forty-five Trading Days (as defined below) before the date in question] [ten
consecutive Trading Days (as defined below) selected by the Company commencing
not less than twenty nor more than thirty days before the date in question]. For
the purpose of any computation under subparagraph (c) above, the current market
price per security on any date shall be deemed to be the average of the reported
last sales prices for the ten consecutive Trading Days before the date in
question. The reported last sales price for each day (whether for purposes of
subparagraph (b) or subparagraph (c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if such security is not listed
or admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Company or a committee thereof or, if no such
quotations are
10
available, the fair market value of such security as determined by a New York
Stock Exchange member firm regularly making a market in the shares of [Common]
[Preferred] Stock selected for such purpose by the Board of Directors of the
Company or a committee thereof. As used herein, the term "Trading Day" with
respect to a security means (x) if such security is listed or admitted for
trading on the New York Stock Exchange or another national securities exchange,
a day on which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such security is quoted on the National
Market System of the NASDAQ, a day on which trades may be made on such National
Market System or (z) otherwise, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least [1%] in
such Warrant Price; provided, however, that any adjustments which by reason of
this paragraph (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article III shall be made to the nearest cent or to the nearest .01 of a share,
as the case may be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (f), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(g) Whenever the Warrant Price is adjusted as herein provided,
the Company shall file with the transfer agent a certificate, signed by [the
Chairman of the Board, the President, any Senior Vice President, or any Vice
President] of the Company, setting forth the Warrant Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the Company to file such
officers' certificate shall not invalidate any corporate action by the Company.
(h) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (y) issuing to the
holder of any Warrant converted after such record date and before the occurrence
of such event the additional shares of Warrant Securities or other assets
issuable upon such exercise by reason of the adjustment required by such event
over and above the Warrant Securities or other assets issuable upon such
exercise before giving effect to such adjustment and (z) paying to such holder
any amount of cash in lieu of any fractional share; provided, however, that the
Company shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided in
Article III, the Company shall cause to be mailed to each holder of Warrants at
its then registered address by first-class mail, postage prepaid, a notice of
such adjustment of the Warrant Price setting forth
11
such adjusted Exercise Price and the effective date of such adjusted Exercise
Price; provided, however, that the failure of the Company to give such notice
shall not invalidate any corporate action by the Company.
(j) In the event that at any time, as a result of an
adjustment made pursuant to Section 3.1, the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of [Common] [Preferred] Stock, thereafter the number
of such other shares so receivable upon exercise of any Warrant shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares contained in Section
3.1(a) through (c), inclusive and the provisions of Sections 2.3, 2.4 and 2.5
with respect to the shares of [Common] [Preferred] Stock shall apply on like
terms to any such other shares.
(k) All Warrants originally issued by the Company subsequent
to any adjustment made to the Warrant Price hereunder shall evidence the right
to purchase, at the adjusted Warrant Price, the number of shares of [Common]
[Preferred] Stock purchasable from time to time hereunder upon exercise of the
Warrants, all subject to further adjustment as provided herein.
(l) Unless the Company shall have exercised its election as
provided in Section 3.1(m), upon each adjustment of the Warrant Price as a
result of the calculations made in Section 3.1(a),(b) or (c), each Warrant
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Warrant Price, that number of
shares (calculated to the nearest hundredth) obtained by (i) multiplying the
number of shares covered by a Warrant immediately prior to this adjustment of
the number of shares by the Warrant Price in effect immediately prior to such
adjustment of the Warrant Price and (ii) dividing the product so obtained by the
Warrant Price in effect immediately after such adjustment of the Warrant Price.
(m) The Company may elect on or after the date of any
adjustment of the Warrant Price to adjust the number of Warrants, in
substitution for any adjustment in the number of shares of [Common] [Preferred]
Stock purchasable upon the exercise of a Warrant as provided in Section 3.2.
Each of the Warrants outstanding after such adjustment of the number of Warrants
shall be exercisable for one share of [Common] [Preferred] Stock. Each Warrant
held of record prior to such adjustment of the number of Warrants shall become
that number of Warrants (calculated to the nearest hundredth) obtained by
dividing the Warrant Price in effect prior to adjustment of the Warrant Price by
the Warrant Price in effect after adjustment of the Warrant Price. The Company
shall make a public announcement of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date
on which the Warrant Price is adjusted or any day thereafter, but shall be at
least 10 days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this subsection (l) the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Warrant Certificates on such record date Warrant Certificates evidencing,
subject to Section 2.4, the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Warrant
12
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to which such holders shall be entitled after such
adjustment. Warrant Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Warrant Price) and shall be registered in the names
of the holders of record of Warrant Certificates on the record date specified in
the public announcement.
(n) Irrespective of any adjustment or change in the Warrant
Price or the number of shares of [Common] [Preferred] Stock issuable upon the
exercise of the Warrants, the Warrant Certificates theretofore and thereafter
issued may continue to express the Warrant Price per share and the number of
shares which were expressed upon the initial Warrant Certificates issued
hereunder.
(o) Anything in this Article III to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Warrant Price, in addition to those adjustments required by this Article III, as
it in its sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the shares of [Common] [Preferred] Stock,
issuance wholly for cash of any shares of [Common] [Preferred] Stock at less
than the current market price, issuance wholly for cash of shares of [Common]
[Preferred] Stock or securities which by their terms are convertible into or
exchangeable for Common Stock, stock dividend, issuance of rights, options or
warrants referred to hereinabove in this Article III, or other event referred to
hereinabove in this Article III treated for Federal income tax purposes as a
dividend of stock or stock rights, hereinafter made by the Company to its common
shareholders, shall not be taxable to the recipients.
[SECTION 3.2. Adjustment of shares of [Common] [Preferred]
Stock Purchasable Upon Exercise of Warrants. The number of Warrant Securities
that may be purchased upon exercise of a Warrant shall be determined by
multiplying the number of shares of [Common] [Preferred] Stock which would
otherwise (but for the provisions of this Section 3.2) be issuable upon such
exercise by a fraction of which (a) the numerator is and (b) the denominator is
$ minus deductions made from (and/or plus additions to) the Warrant Price
pursuant to Sections 3.1(a) or (c) hereof. The Warrant Price per share of
[Common] [Preferred] Stock shall be adjusted and readjusted from time to time as
provided in this Article III and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof is required by this
Article III.]
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state the
same Warrant Price and the same number of shares of [Common] [Preferred] 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 (which
shall be conclusive) make any change in the form of Warrant Certificate that it
may deem appropriate 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 as so changed.
13
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to vote at, or to
receive notice of, any meeting of shareholders of the Company; the consent of
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants
14
evidenced by his Warrant Certificate in the manner provided in his Warrant
Certificate and in this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance. In case any of the following shall occur while any
Warrants are outstanding: [(a) any reclassification or change of the outstanding
shares of Warrant Securities (other than a change in par value, or from par
value to no par value, or as a result of a subdivision or combination of the
Warrant Securities);] or (b) any consolidation, merger, share exchange or
combination of the Company with or into another corporation (other than a merger
or consolidation of the Company in which the Company is the continuing
corporation and which does not result in any reclassification or change of
outstanding shares of [Common] [Preferred] Stock) as a result of which holders
of Warrant Securities shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Warrant Securities; or (c) any sale or conveyance of the property or assets of
the Company as, or substantially as, an entirety to any other entity as a result
of which holders of Warrant Securities shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Warrant Securities; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the holders of the Warrants
then outstanding shall have the right at any time thereafter, upon exercise of
such Warrants, to receive the kind and amount of shares of stock and other
securities and property or assets receivable upon such reclassification, change,
consolidation, merger, share exchange, combination, sale or conveyance [(or at
the option of the Company, a sum equal to the value thereof at the time of the
distribution as determined by the Board of Directors in its sole discretion)] as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, share exchange, merger, sale or
conveyance, and, in the case of a consolidation, merger, share exchange, sale or
conveyance the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such reclassification, change, consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change, merger,
share exchange, consolidation, sale or conveyance complies with the provisions
of this Section 4.4.
15
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security on the register of the
Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at ], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ] for exchange or registration of transfer, properly endorsed
or accompanied by appropriate instruments of registration of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange or registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and]
[P]rior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
holder of a Warrant
16
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints
[Warrant Agent] as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein set
forth; and [Warrant Agent] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust
17
for or with any of the holders of Warrant Certificates or beneficial owners of
Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken 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.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company
18
pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of its
covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 7.2 hereof, to make any demand upon the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 6.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall 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 or 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 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
19
acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which substantially all the assets and business of the Warrant Agent have been
transferred, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]
[SECTION 7.1. Redemption. The Company may, at its option, at
any time from and after , and at or prior to 5:00 p.m., [New York time], on the
earlier of the Scheduled Share Conversion Date or the Accelerated Share
Conversion Date (as defined in Section 7.2, redeem all but not less than all of
the then outstanding Warrants at a redemption price of $ per Warrant, subject to
adjustment pursuant to the provisions of Section 7.3(b). Such price, as the same
may be from time to time adjusted, is hereinafter referred to as the "Redemption
Price." If the Company should desire to exercise such right to redeem all of the
then outstanding Warrants, it will give notice of such redemption to the holders
thereof as follows:
Notice of such redemption to holders of Warrants shall be
mailed to all such holders not less than 30 nor more than 90 days prior to the
date fixed for redemption to their last addresses as they appear upon the
registry books of the Warrant Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will specify the date fixed for
redemption ("Redemption Date") and the Redemption Price. The notice will state
that payment of the Redemption Price will be made at the office or agency of the
Warrant Agent or at the option of the Company at a specified office of the
Company in the City of Dallas, State of Texas, upon presentation and surrender
of such Warrants, and will also state that the
20
right to exercise the Warrants will terminate at the close of business on the
business day immediately preceding the Redemption Date.
On or before the Redemption Date, the Company shall deposit
with the Warrant Agent funds in form satisfactory to the Warrant Agent
sufficient to redeem the then outstanding Warrants at the Redemption Price.]
[SECTION 7.2. Accelerated Share Conversion Date. If the price
of a share of [Common] [Preferred] Stock (as determined pursuant to the second
sentence of Section 3.1(e)) for each of 10 consecutive trading days is at least
$ , subject to adjustment pursuant to the provisions of Section 7.3(b) (such
price, as the same may from time to time be adjusted, is hereinafter referred to
as the "Acceleration Price"), then the Company may, at its option, accelerate
the date on which the Warrants shall be converted into shares of [Common]
[Preferred] Stock and cease to be exercisable. If the Company shall so
accelerate such date, it shall give notice of such acceleration within 30 days
after the end of any such 10 consecutive trading day period to the holders of
Warrants as follows:
Notice of such acceleration shall be mailed to all holders of
Warrants not less than 30 nor more than 90 days prior to the date specified in
such notice as the date on which the Warrants shall be converted into shares of
[Common] [Preferred] Stock and cease to be exercisable (the "Accelerated Share
Conversion Date") to their last addresses as they appear upon the registry books
of the Warrant Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each such
notice of acceleration will specify the Accelerated Share Conversion Date and
the Acceleration Price.]
[SECTION 7.3. Conversion of Warrants into Shares. (a) To the
extent that any Warrant Certificates remain outstanding at the expiration of the
period during which the Warrants are exercisable, as set forth in Section 2.3(a)
hereof, the unexercised Warrants represented thereby shall be converted
automatically into shares of [Common] [Preferred] Stock at the rate of [ ]
share[s] of [Common] [Preferred] Stock for each [ ] Warrants. The registered
holders of such Warrant Certificates shall be deemed to have become holders of
record of such share or shares of [Common] [Preferred] Stock as of the date of
such conversion. If the number of shares of [Common] [Preferred] Stock
purchasable upon the exercise of each Warrant is adjusted pursuant to Section
3.2, the rate at which shares of [Common] [Preferred] Stock are issued upon such
conversion of unexercised Warrants at the expiration of the period during which
the Warrants are exercisable shall be adjusted in order that the total number of
shares of [Common] [Preferred] Stock issued for each [ ] unexercised Warrants at
such expiration equals the number of such shares purchasable upon the exercise
of each Warrant after such adjustment. Notwithstanding the foregoing provisions
of this Section 7.3, no fractional shares of [Common] [Preferred] Stock shall be
issuable upon such conversion. In lieu of fractional shares, there shall be paid
to the registered holders of Warrant Certificates at the time such Warrant
Certificates are so converted an amount in cash equal to the same fraction of
the current market value of a share of [Common] [Preferred] Stock. For the
purposes of this Section 7.3, the current market value of a share of [Common]
[Preferred] Stock shall be the closing price of a share of [Common] [Preferred]
Stock (as determined pursuant to the second sentence of Section 3.1(e)) for the
trading day immediately
21
prior to the date of such conversion. After such conversion of outstanding and
unexercised Warrants into shares of [Common] [Preferred] Stock, the holder of
any Warrant Certificate representing such Warrants shall surrender the same to
the Warrant Agent (or, if this Agreement shall have been terminated, to the
transfer agent for shares of [Common] [Preferred] Stock) and such holder shall
be entitled, upon such surrender, to receive in exchange therefor a certificate
or certificates representing the number of whole shares of [Common] [Preferred]
Stock into which such Warrants shall have been converted as aforesaid and
payments as aforesaid for any fractional share represented thereby (without
interest). Unless and until so surrendered, such Warrant Certificates shall be
deemed for all purposes (subject to the further provisions of this paragraph) to
evidence the ownership of the whole number of shares of [Common] [Preferred]
Stock into which the Warrants evidenced thereby have been so converted. Unless
and until any such Warrant Certificate shall be so surrendered, dividends or
distributions payable to holders of record of shares of [Common] [Preferred]
Stock shall not be paid to the holder of any such Warrant Certificate not
surrendered, but there shall be paid to the record holder of such Warrant
Certificate, with respect to the shares of [Common] [Preferred] Stock issued
upon such conversion therefor, (i) upon such surrender the amount of the
dividends or distributions which shall theretofore have become payable thereon,
but without interest, and (ii) after such surrender, the amount of any dividend
or distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
(b) Upon each adjustment of the Warrant Price of the Warrants,
the Redemption Price and the Acceleration Price in effect immediately prior to
the adjustment shall be adjusted to be a price equal to the product of the
Redemption Price or the Acceleration Price, as the case may be, in effect
immediately prior to the adjustment of the Warrant Price multiplied by a
fraction the numerator of which is the Warrant Price which was in effect
immediately after the adjustment of the Warrant Price and the denominator of
which is the Warrant Price immediately prior to such adjustment.]
SECTION 7.4. Notice of Proposed Actions. In case the Company
shall propose (a) to pay any dividend payable in stock of any class to the
holders of its Common [or Preferred] Stock or to make any other distribution to
the holders of its Common [or Preferred] Stock (other than a cash dividend), or
(b) to offer to the holders of its Common Stock rights or warrants to subscribe
for or to purchase any additional Common Stock or shares of stock of any class
or any other securities, rights or options, or (c) to effect any
reclassification of its Common [or Preferred] Stock (other than a
reclassification involving only the subdivision or combination of outstanding
Common [or Preferred] Stock), or (d) to effect any consolidation, merger, share
exchange or sale, transfer or other disposition of all or substantially all of
the property, assets or business of the Company, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Warrant, in accordance with Section
8.2, a notice of such proposed action, which shall specify the record date for
the purposes of such stock dividend, distribution or rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of Common [or Preferred] Stock, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (a) or (b) above at least ten days prior to the
record date for determining holders of the
22
Common [or Preferred] Stock for purposes of such action, and in the case of any
such action, at least ten days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Common [or
Preferred] Stock, whichever shall be the earlier. The failure to give notice
required by this Section 7.4 or any defect therein shall not affect the legality
or validity of the action taken by the Company or the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the Warrant
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the registered holders of the Warrant Certificates or the Warrant
holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Warrant Agent in accordance
with Section 6.3 or in any other manner which the Company may deem to be
necessary or desirable and which will not materially and adversely affect the
interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that decreases or increases the Warrant
Price, shortens the period of time during which the Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights of the holders
or reduces the percentage of outstanding Warrants the consent of the holders of
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each Warrant holder affected
thereby.
SECTION 8.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 8.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent],
, Attention: and any communication from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to EMCOR Group, Inc., 000 Xxxxxxx
Xxxxx Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 8.4. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms
23
and provisions thereof shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION 8.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 8.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any legal or equitable
right, remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the
several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 8.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 8.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
24
IN WITNESS WHEREOF, EMCOR Group, Inc. and [Warrant Agent] have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
EMCOR GROUP, INC.
By _________________________
Title:
Attest:
-------------------------
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
-------------------------
Title:
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities with
Warrants which are not immediately
detachable.
Prior to _______________ this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not
immediately exercisable.
Prior to _______________, Warrants
evidence by this Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY LIMITED
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY] TIME ON _______________
OR EARLIER IF NOTICE OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., [New York City] time, on and] on or before
[the earliest of (i)] 5 P.M. [New York City] time on , , [(ii) the
Accelerated Share Conversion Date as defined in the Warrant Agreement (referred
to herein) or (iii) the business day immediately prior to the Redemption Date as
defined in the Warrant Agreement,] [Common Stock, par value $.01 per share]
[Preferred Stock, par value $.10 per share] (the "Warrant Securities"), of EMCOR
Group, Inc. (the "Company"), issued and to be issued under the Warrant Agreement
(as hereinafter defined), on the following basis: during the period from ,
through and including the exercise price of each Warrant will be
$ per share; during the period from , through and including , ,
the exercise price of each Warrant will be $ per share (the "Warrant
Price"). No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant.
A-1
The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof, including any
applicable certifications if the Warrant Securities are issuable in bearer form,
and by paying in full in lawful money of the United States of America [in cash
or by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in immediately available funds, the Warrant Price
for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ] currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 5.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to , this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant
A-2
Certificate may be exchanged at the corporate trust office of the Warrant Agent
[or ] for Warrant Certificates representing the same aggregate number of
Warrants.
The Warrants evidenced by this Certificate may be redeemed by
the Company at its option at any time from and after [ ] but before they are
converted into [Common] [Preferred] Stock, at a redemption price of [ ] per
Warrant subject to adjustment, in accordance with the terms of the Warrant
Agreement.
If the price of a share of [Common] [Preferred] Stock
(determined in accordance with the Warrant Agreement) for each of 10 consecutive
trading days is at least [ ] (subject to adjustment as provided in the Warrant
Agreement), the Company may, at its option, accelerate the date on which the
Warrants shall be converted into [Common] [Preferred] Stock and cease to be
exercisable.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be converted into [ ] shares of [Common]
[Preferred] Stock for each [ ] unexercised Warrants hereunder (subject to
adjustments as provided in the Warrant Agreement). After such conversion of
outstanding Warrants represented by this Warrant Certificate into shares of
[Common] [Preferred] Stock, the holder of this Warrant Certificate shall
surrender the same to the Warrant Agent (or, if the Warrant Agreement shall have
been terminated, to the transfer agent for [Common] [Preferred] Stock) and the
holder shall be entitled, upon such surrender, to receive in exchange therefor a
certificate or certificates representing the number of whole shares of [Common]
[Preferred] Stock into which such Warrants shall have been converted as
aforesaid. Unless and until so surrendered, this Warrant Certificate shall be
deemed for all purposes (subject to the further provisions of this paragraph) to
evidence the ownership of the whole number of shares of [Common] [Preferred]
Stock into which the Warrants evidenced thereby have been so converted. Unless
and until this Warrant Certificate shall be so surrendered, dividends or
distributions payable to holders of record of Common Stock shall not be paid to
the holder of this Warrant Certificate, but there shall be paid to the record
holder of this Warrant Certificate, with respect to the [Common] [Preferred]
Stock issued upon such conversion therefor, (i) upon such surrender, the amount
of the dividends or distributions which shall theretofore have become payable
thereon, but without interest, and (ii) after such surrender, the amount of any
dividend or distribution with a record date prior to surrender and the payment
date of which shall be subsequent to surrender, such amount to be paid on such
payment date.
No holder of this Warrant Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Stock or of any other securities of the Company which may at any
time be issuable on the exercise or conversion thereof, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or any
right to vote upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue of stock, reclassification of stock, change of par
value, consolidation, share exchange, merger, conveyance, or otherwise) or,
except as provided in the Warrant
A-3
Agreement, to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant or Warrants evidenced by
this Warrant Certificate shall have been exercised or converted as provided in
the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of _______________
EMCOR Group, Inc.
By: __________________________
Attest:
-----------------------------
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. [or ], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase [Common Stock]
[Preferred Stock] of American Express Company (the "Warrant Securities") and
represents that he has tendered payment for such Warrant Securities in Dollars
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in immediately available funds to the
order of Triton Energy Limited, c/o [insert name and address of Warrant Agent],
in the amount of in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all
as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
A-5
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) ________________________
Signature Guaranteed Signature_____________________
_____________________________ (Signature must conform in all
respects to name of holder as
specified on face of
this Warrant Certificate and
must bear a signature
guarantee by a bank, trust
company or member broker of
the New York, Midwest or
Pacific Stock Exchanges)
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-6
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
------------------------------
(Please print name)
------------------------------
(Address)
------------------------------
(City, including zip code)
------------------------------
(Please insert social security
or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchange)
Signature Guaranteed
------------------------------
A-7
