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Exhibit 4(d)
FLEET BOSTON CORPORATION
and
[Name of Warrant Agent], Warrant Agent
UNIVERSAL WARRANT AGREEMENT
dated as of [ ]
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TABLE OF CONTENTS
ARTICLE 1. UNIVERSAL WARRANTS 1
SECTION 1.01. RANKING. 1
SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES 1
SECTION 1.03. NUMBER UNLIMITED; ISSUABLE IN SERIES 3
SECTION 1.04. COUNTERSIGNATURE AND DELIVERY OF WARRANT CERTIFICATES 4
SECTION 1.05. PLACE OF EXERCISE; REGISTRATION OF TRANSFERS AND EXCHANGES 6
SECTION 1.06. MUTILATED OR MISSING WARRANT CERTIFICATES 9
SECTION 1.07. REGISTERED HOLDERS 10
SECTION 1.08. CANCELLATION 10
SECTION 1.09. ADDITIONAL WARRANT AGENTS 11
SECTION 1.10. APPOINTMENT OF CALCULATION AGENTS 11
ARTICLE 2. DURATION AND EXERCISE OF UNIVERSAL WARRANTS 11
SECTION 2.01. DURATION AND EXERCISE OF UNIVERSAL WARRANTS 11
SECTION 2.02. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS 11
ARTICLE 3. OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS 12
SECTION 3.01. WARRANTHOLDER MAY ENFORCE RIGHTS 12
SECTION 3.02. NO RIGHTS AS HOLDER OF WARRANT PROPERTY CONFERRED BY
UNIVERSAL WARRANTS OR WARRANT CERTIFICATES 12
SECTION 3.03. MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER 12
ARTICLE 4. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES 12
SECTION 4.01. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY 12
SECTION 4.02. PAYMENT OF TAXES 13
ARTICLE 5. CONCERNING THE WARRANT AGENT 13
SECTION 5.01. WARRANT AGENT 13
SECTION 5.02. CONDITION OF WARRANT AGENT'S OBLIGATIONS 13
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SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR 15
ARTICLE 6. MISCELLANEOUS 16
SECTION 6.01. AMENDMENT 16
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND THE WARRANT AGENT 17
SECTION 6.03. ADDRESSES FOR NOTICES 17
SECTION 6.04. NOTICES TO WARRANTHOLDERS 17
SECTION 6.05. OBTAINING OF APPROVALS 18
SECTION 6.06. PERSONS HAVING RIGHTS UNDER THIS AGREEMENT 18
SECTION 6.07. INSPECTION OF AGREEMENT 18
SECTION 6.08. OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS
TO BE CONTAINED THEREIN 18
SECTION 6.09. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS 19
SECTION 6.10. JUDGMENT CURRENCY 19
SECTION 6.11. HEADINGS 19
SECTION 6.12. COUNTERPARTS 19
SECTION 6.13. APPLICABLE LAW 19
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of ____________, between FLEET BOSTON CORPORATION,
a corporation organized and existing under the laws of the State of Rhode Island
(the "Company"), and [Name of Warrant Agent], a [ ] (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time to time of
warrants (the "Universal Warrants") to purchase or sell (i) securities of an
entity unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies or
(iii) commodities (the property described in clauses (i), (ii) and (iii), in
relation to a Universal Warrant, being hereinafter referred to as the "Warrant
Property" applicable to such Universal Warrant) to be issued in one or more
series and in such number and with such terms as may from time to time be
authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and delivery of this
Agreement to provide, among other things, for the delivery and administration of
the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid agreement
according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. RANKING. The Universal Warrants are unsecured contractual
obligations of the Company and will rank pari passu with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. (a)
Certificates ("Warrant Certificates") evidencing the Universal Warrants of each
series shall be substantially in the form of Exhibits I and II hereto or in such
form (not inconsistent with this Agreement) as shall be established by or
pursuant to one or more Board Resolutions (as defined below) (as set forth in a
Board Resolution or, to the extent established pursuant to, rather than set
forth in, a Board Resolution, in an Officer's Certificate (as defined below)
detailing such establishment) or in one or more agreements supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. The Warrant
Certificates may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and that 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 self- regulatory organization (an "SRO") on
which the Universal Warrants of such series may be listed, or of any securities
depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company by the chief financial officer, the treasurer or any
assistant treasurer or such other person specifically designated by the Board of
Directors to execute Warrant Certificates, which signature may or may not be
attested by the secretary or an assistant secretary of the Company. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall not
affect the validity or enforceability of any Warrant Certificate that has been
duly countersigned and delivered by the Warrant Agent.
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"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Company to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act on its behalf for the
purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chairman of the
board, any vice chairman, the president, the chief financial officer, any vice
president, the chief legal officer, the treasurer, any assistant treasurer or
such other person authorized by the Board of Directors to execute any such
certificate and delivered it to the Warrant Agent. Without limiting the
generality of the foregoing, if the Universal Warrants of any series are to be
issued as components of a unit ("Unit") with one or more other securities of the
Company, an officer's certificate or similar certificate relating to the
Universal Warrants delivered pursuant to an indenture or unit agreement or
similar agreement governing such Units or one or more other components thereof
may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be such
officer of the Company; and a Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any
such person was not such officer.
(c) Pending the preparation of final Warrant Certificates evidencing
Universal Warrants of any series, the Company may execute and the Warrant Agent
shall countersign and deliver temporary Warrant Certificates evidencing such
Universal Warrants (printed, lithographed, typewritten or otherwise produced, in
each case in form satisfactory to the Warrant Agent). Such temporary Warrant
Certificates shall be issuable substantially in the form of the final Warrant
Certificates but with such omissions, insertions and variations as may be
appropriate for temporary Warrant Certificates, all as may be determined by the
Company with the concurrence of the Warrant Agent. Such temporary Warrant
Certificates may contain such reference to any provisions of this Warrant
Agreement as may be appropriate. Every such temporary Warrant Certificate shall
be executed by the Company and shall be countersigned by the Warrant Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the final Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish final Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge, and the Warrant Agent shall countersign and deliver in exchange for such
temporary Warrant Certificates final Warrant Certificates evidencing a like
aggregate number of Universal Warrants of the same series and of like tenor as
those evidenced by such temporary Warrant Certificates. Until so exchanged, such
temporary Warrant Certificates and the Universal Warrants evidenced thereby
shall be entitled to the same benefits under this Warrant Agreement as final
Warrant Certificates and the Universal Warrants evidenced thereby.
SECTION 1.03. NUMBER UNLIMITED; ISSUABLE IN SERIES. (a) The aggregate
number of Universal Warrants that may be delivered under this Agreement is
unlimited.
(b) The Universal Warrants may be issued in one or more series. There
shall be established in or pursuant to one or more Board Resolutions (and to the
extent established pursuant to, rather than set forth in, a Board Resolution, in
an Officer's Certificate detailing such establishment) or established in one or
more agreements supplemental hereto, prior to the initial issuance of Universal
Warrants of any series:
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(i) the designation of the Universal Warrants of the
series, which shall distinguish the Universal Warrants
of the series from the Universal Warrants of all other
series;
(ii) any limit upon the aggregate number of the Universal
Warrants of the series that may be countersigned and
delivered under this Agreement (except for Universal
Warrants countersigned and delivered upon registration
of transfer of, or in exchange for, or in lieu of,
other Universal Warrants of the series);
(iii) the specific Warrant Property purchasable or salable
upon exercise of the Universal Warrants of the series,
and the amount thereof (or the method for determining
the same);
(iv) the price at which the Universal Warrants of the series
will be issued and, if other than U.S. dollars, the
coin or currency or composite currency in which such
issue price will be payable;
(v) whether the Universal Warrants of the series are
warrants to purchase ("call warrants") or warrants to
sell ("put warrants") the Warrant Property;
(vi) the price at which and, if other than U.S. Dollars, the
coin or currency or composite currency with which the
Warrant Property may be purchased or sold upon exercise
of the Universal Warrants of the series (or the method
for determining the same);
(vii) whether the exercise price for the Universal Warrants
of the series may be paid in cash or by the exchange of
any other security of the Company, or both, or
otherwise, and the method of exercise of the Universal
Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the
series is to be settled in cash or by delivery of the
Warrant Property or both, or otherwise;
(ix) the date on which the right to exercise the Universal
Warrants of the series shall commence and the date (the
"Expiration Date") on which such right shall expire or,
if the Universal Warrants of the series are not
continuously exercisable throughout such period, the
specific date or dates on which they will be
exercisable;
(x) whether the Warrant Certificates representing the
Universal Warrants of the series will be in registered
form ("Registered Warrants") or bearer form ("Bearer
Warrants") or both;
(xi) whether the Warrant Certificates evidencing any
Registered Warrants or Bearer Warrants of the series
will be issued in global form ("Global Warrant
Certificates") or definitive form ("Definitive Warrant
Certificates") or both, and whether and on what terms
(if different from those set forth herein) Warrant
Certificates in one form may be converted into or
exchanged for Warrant Certificates in the other form;
(xii) any warrant agents, depositaries, authenticating or
paying agents, transfer agents or registrars or any
determination or calculation agents or other agents
with respect to Universal Warrants of the series;
(xiii) whether the Universal Warrants of the series will be
issued separately or together as a unit (a "Unit") with
one or more other securities of the Company or any
other person and,
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if the Universal Warrants of the series are to be
issued as components of Units, whether and on what
terms the Universal Warrants of the series may be
separated from the other components of such Units prior
to the Expiration Date of such Universal Warrants; and
(xiv) any other terms of the Universal Warrants of the series
(which terms shall not be inconsistent with the
provisions of this Agreement).
(c) All Universal Warrants of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Universal Warrants of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
SECTION 1.04. COUNTERSIGNATURE AND DELIVERY OF WARRANT CERTIFICATES. (a)
The Company may deliver Warrant Certificates evidencing Universal Warrants of
any series executed by the Company to the Warrant Agent for countersignature
together with the applicable documents referred to below in this Section, and
the Warrant Agent shall thereupon countersign and deliver such Warrant
Certificates to or upon the order of the Company (contained in the Issuer Order
(as defined below) referred to below in this Section) or pursuant to such
procedures acceptable to the Warrant Agent as may be specified from time to time
by an Issuer Order. Any terms of the Universal Warrants evidenced by such
Warrant Certificates may be determined by or pursuant to such Issuer Order or
such other procedures. If provided for in such procedures, such Issuer Order may
authorize countersignature and delivery pursuant to oral instructions from the
Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In countersigning such Warrant Certificates and accepting
the responsibilities under this Agreement in relation to the Universal Warrants
evidenced by such Warrant Certificates, the Warrant Agent shall be entitled to
receive (in the case of subparagraphs 1.04(a)(ii), 1.04(a)(iii) and 1.04(a)(iv)
below only at or before the time of the first request of the Company to the
Warrant Agent to countersign Warrant Certificates in a particular form
evidencing Universal Warrants) and shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and
setting forth delivery instructions if the Warrant
Certificates are not to be delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or
executed supplemental agreement pursuant to which the
forms and terms of the Universal Warrants evidenced by
such Warrant Certificates were established;
(iii) an Officer's Certificate setting forth the forms and
terms of the Universal Warrants evidenced by such
Warrant Certificates stating that the form or forms and
terms of the Universal Warrants evidenced by such
Warrant Certificates have been established pursuant to
Sections 1.02 and 1.03 and comply with this Agreement,
and covering such other matters as the Warrant Agent
may reasonably request; and
(iv) At the option of the Company, either an Opinion of
Counsel (as defined below) or a letter addressed to the
Warrant Agent permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(A) the forms of the Warrant Certificates have been
duly authorized and established in conformity with
the provisions of this Agreement;
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(B) in the case of an underwritten offering, the terms
of the Universal Warrants have been duly authorized
and established in conformity with the provisions
of this Agreement and, in the case of an offering
that is not underwritten, certain terms of the
Universal Warrants have been established pursuant
to a Board Resolution, an Officer's Certificate or
a supplemental agreement in accordance with this
Agreement, and when such other terms as are to be
established pursuant to procedures set forth in an
Issuer Order shall have been established, all terms
will have been duly authorized by the Company and
will have been established in conformity with the
provisions of this Agreement; and
(C) when the Warrant Certificates have been executed by
the Company and countersigned by the Warrant Agent
in accordance with the provisions of this Agreement
and delivered to and duly paid for by the
purchasers thereof, subject to such other
conditions as may be set forth in such opinion of
counsel, they will have been duly issued under this
Agreement and the Universal Warrants evidenced
thereby will be valid and legally binding
obligations of the Company, enforceable in
accordance with their respective terms, and will be
entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of New York and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Warrant Agent), who shall be counsel reasonably
satisfactory to the Warrant Agent, in which case the opinion shall state that
such counsel believes he and the Warrant Agent are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
"Issuer Order" means a written statement, request or order of the Company
signed in its name by the chairman of the board, any vice chairman, the
president, the chief financial officer, any vice president, the chief legal
officer, the treasurer, any assistant treasurer or such other person
specifically designated by the Board of Directors to execute any such written
instrument, request or order. Without limiting the generality of the foregoing,
if the Universal Warrants of a series are issued as components of Units, an
issuer order or similar order relating to the Universal Warrants delivered
pursuant to an indenture or unit or similar agreement governing such Units or
one or more other components thereof may also constitute an Issuer Order under
this Agreement if addressed to the Warrant Agent.
"Opinion of Counsel" means an opinion in writing signed by [ ] or by such
other legal counsel, who may be an employee of or counsel to the Company, and
who shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to countersign
and deliver any Warrant Certificates under this Section if the Warrant Agent,
being advised by counsel, determines that such action may not lawfully be taken
by the Company or if the Warrant Agent in good faith determines that (i) such
action would expose the Warrant Agent to personal liability to existing
registered or beneficial holders of Universal Warrants (each, a "Warrantholder")
or would affect the Warrant Agent's own rights, duties or immunities under the
Warrant Certificates, the Universal Warrants, this Agreement or otherwise or
(ii) the terms of such Universal Warrants are administratively unacceptable to
it.
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(c) If the Company shall establish pursuant to Section 1.03 that the
Universal Warrants of a series are to be evidenced in whole or in part by one or
more Global Warrant Certificates, then the Company shall execute and the Warrant
Agent shall, in accordance with this Section and the Issuer Order with respect
to such series, countersign and deliver one or more Global Warrant Certificates
that (i) shall evidence all or part of the Universal Warrants of such series
issued in such form and not yet canceled, (ii) shall be registered in the name
of the Depositary (as defined below) for such Universal Warrants or the nominee
of such Depositary, (iii) shall be delivered by the Warrant Agent to such
Depositary or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Universal Warrants in definitive registered form, this
Warrant Certificate and the Universal Warrants evidenced hereby may not be
transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants of any series
that are or may be evidenced by one or more Global Warrant Certificates, the
person or persons designated as Depositary by the Company pursuant to Section
1.03 hereof until a successor Depositary shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Depositary" shall mean
or include each person who is then a Depositary hereunder, and if at any time
there is more than one such person, "Depositary" as used with respect to the
Universal Warrants of any such series shall mean the Depositary with respect to
that series.
(d) If so required by applicable law, each Depositary for a series of
Universal Warrants must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose, and
no Universal Warrant evidenced thereby shall be exercisable, unless and until
such Warrant Certificate has been countersigned by the manual signature of an
authorized officer of the Warrant Agent. Such countersignature by an authorized
officer of the Warrant Agent upon any Warrant Certificate executed by the
Company in accordance with this Agreement shall be conclusive evidence that the
Warrant Certificate so countersigned and the Universal Warrants evidenced
thereby have been duly issued hereunder.
SECTION 1.05. PLACE OF EXERCISE; REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) Except as otherwise established pursuant to Section 1.03 with respect to
Universal Warrants of a series, Universal Warrants may be presented for exercise
at the Warrant Agent's Window (as defined below) in accordance with procedures
to be established pursuant to Section 1.03.
(b) Except as otherwise provided herein or as established pursuant to
Section 1.03 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as
defined below), subject to such reasonable regulations as the Company or the
Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined below),
Attention: Transfer Department, duly endorsed by, or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent
and the Company duly executed by, the Registered Holder(s) (as defined below)
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by a bank or trust company
with a correspondent office in The City of New York or by a broker or dealer
that is a member of the National Association of Securities Dealers, Inc. (the
"NASD") or by a member of a national securities exchange or in such other manner
acceptable to the Warrant Agent and the Company. Upon any such registration of
transfer, one or more new Warrant Certificates of the same series and
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like terms evidencing a like number of unexercised Universal Warrants shall be
issued to the transferee(s) and the surrendered Warrant Certificate shall be
cancelled by the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.03, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. The "Warrant Agent's Window"
shall be the window of the Warrant Agent maintained for purposes of transfer and
tender in the Borough of Manhattan, The City of New York (or at the address of
any additional agency established by the Company pursuant to Section 1.08
hereof, or at the address of any successor Warrant Agent (as provided in Section
5.03)), which is, on the date of this Agreement, [name and address of Warrant
Agent's Window]. If the Universal Warrants of any series are issued in both
registered and unregistered form, except as otherwise established for such
series pursuant to Section 1.03, at the option of the holder thereof, Warrant
Certificates evidencing Bearer Warrants of any series may be exchanged for
Definitive Warrant Certificates evidencing an equal number of unexercised
Registered Warrants of the same series and of like tenor upon surrender of such
Warrant Certificates evidencing Bearer Warrants to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. Unless otherwise established for
such series pursuant to Section 1.03, Registered Warrants of any series may not
be exchanged for Bearer Warrants of such series. Upon surrender of any
unexercised Warrant Certificate for exchange, the Warrant Agent shall cancel
such Warrant Certificate, and the Company shall execute, and the Warrant Agent
shall countersign and deliver, one or more new Warrant Certificates evidencing a
like number of unexercised Universal Warrants of the same series and of like
tenor.
(d) Universal Warrants evidenced by the Warrant Certificates issued
upon transfer or exchange pursuant to paragraph (b) or (c) of this Section shall
be valid obligations of the Company, constituting the same obligations of the
Company as the Universal Warrants evidenced by the Warrant Certificates
surrendered for transfer or exchange, and entitled to the same benefits under
this Agreement as were such Universal Warrants evidenced by the Warrant
Certificates prior to such surrender.
(e) Except as provided in Section 1.06, no service charge shall be
made for any registration of transfer or exchange of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates, other than exchanges pursuant to
this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof (or,
in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless and
until it is exchanged in whole or in part for Definitive Warrant Certificates, a
Global Warrant Certificate evidencing all or a portion of the Universal Warrants
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series
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or if at any time the Depositary for such series shall no longer be eligible
under this Agreement, the Company shall appoint a successor Depositary with
respect to such series. If a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 1.03 that such series be evidenced by one or more Global Warrant
Certificates shall no longer be effective and the Company will execute, and the
Warrant Agent, upon receipt of an Officer's Certificate for the countersignature
and delivery of Definitive Warrant Certificates evidencing Universal Warrants of
such series, will countersign and deliver Definitive Warrant Certificates
evidencing Universal Warrants of such series and of like tenor in an aggregate
number equal to the number of the unexercised Universal Warrants represented by
such Global Warrant Certificate or Certificates in exchange for such Global
Warrant Certificate or Certificates.
(j) If established pursuant to Section 1.03 with respect to a series
of Universal Warrants evidenced in whole or in part by one or more Global
Warrant Certificates, the Depositary for such series may surrender such Global
Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same series
and of like tenor on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Warrant Agent shall
countersign and deliver, without service charge:
(i) to the person specified by such Depositary a new
Definitive Warrant Certificate of the same series and
of like tenor in an aggregate number equal to and in
exchange for such person's beneficial interest in the
Universal Warrants evidenced by such Global Warrant
Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same
series and of like tenor in number equal to the
difference, if any, between the number of unexercised
Universal Warrants evidenced by the surrendered Global
Warrant Certificates and the number of unexercised
Universal Warrants evidenced by such Definitive Warrant
Certificate countersigned and delivered pursuant to
clause 1.05(j)(i) above.
Upon the exchange of a Global Warrant Certificate for Definitive Warrant
Certificates, such Global Warrant Certificate shall be canceled by the Warrant
Agent or an agent of the Company or the Warrant Agent. Registered Definitive
Warrant Certificates issued in exchange for a Registered Global Warrant
Certificate pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the persons in whose names such Warrant Certificates are so
registered. Definitive Bearer Warrant Certificates issued in exchange for a
Global Bearer Warrant Certificate pursuant to this Section shall be issued in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series of
Universal Warrants to the contrary, none of the Company, the Warrant Agent or
any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel) shall
be required to exchange any Bearer Warrant for a Registered Warrant if such
exchange would result in adverse Federal income tax consequences to the Company
under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of
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any stock exchange on which the Universal Warrants of such series are listed)
where the Bearer Warrants, if any, of each series may be presented for exercise
and payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an address
in, the United States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in United
States dollars with respect to Bearer Warrants of any series which are payable
in United States dollars may be made at an agency of the Company maintained in
the Borough of Manhattan, The City of New York if such payment in United States
dollars at each agency maintained by the Company outside the United States for
payment on such Bearer Warrants is illegal or effectively precluded by exchange
controls or other similar restrictions.
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that series
may be presented for exchange as provided in this Agreement and where the
Registered Universal Warrants of that series may be presented for registration
of transfer as in this Agreement provided, and the Company may from time to time
rescind any such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain the agencies provided for in
this Section. The Company will give to the Warrant Agent prompt written notice
of any such designation or rescission thereof.
SECTION 1.06. MUTILATED OR MISSING WARRANT CERTIFICATES. (a) If any Warrant
Certificate evidencing Universal Warrants of any series is mutilated, lost,
stolen or destroyed, the Company may in its discretion execute, and the Warrant
Agent may countersign and deliver, in exchange and substitution for the
mutilated Warrant Certificate, or in replacement for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate representing an equivalent
number of unexercised Universal Warrants of the same series and of like tenor,
bearing an identification number, if applicable, not contemporaneously
outstanding, but only (in case of loss, theft or destruction) upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant Certificate and security or indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated,
lost, stolen or destroyed Warrant Certificate have been or are about to be
exercised, or deemed to be exercised, the Company in its absolute discretion
may, instead of issuing a new Warrant Certificate, and subject to the conditions
set forth in clause 1.06(a) above, direct the Warrant Agent to treat the same as
if it had received the Warrant Certificate together with an irrevocable exercise
notice in proper form in respect thereof, as established with respect to the
Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant Certificate
issued pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall be original, additional contractual obligations of the
Company, and shall be entitled to the same benefits under this Agreement as the
Universal Warrants evidenced by the Warrant Certificate that was lost, stolen or
destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance
with 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) connected therewith.
(e) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
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SECTION 1.07. REGISTERED HOLDERS. (a) Prior to due presentment for
registration of transfer, the Company, the Warrant Agent, and any agent of the
Company or the Warrant Agent may deem and treat the person in whose name a
Warrant Certificate shall be registered in the Warrant Register (a "Registered
Holder") as the absolute owner of the Registered Warrants evidenced thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate) for any purpose whatsoever, and as the person entitled to exercise
the rights represented by the Registered Warrants evidenced thereby, and neither
the Company nor the Warrant Agent, nor any agent of the Company or the Warrant
Agent, shall be affected by any notice to the contrary. All payments on account
of any Registered Warrant to the Registered Holder, or upon his order, shall be
valid, and to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability of the Company for moneys paid upon such Registered
Warrant. This Section shall be without prejudice to the rights of Warrantholders
as described elsewhere herein.
(b) The Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may treat the holder of any Bearer Warrant as the absolute
owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such Bearer
Warrant made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon such Bearer Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere herein.
SECTION 1.08. CANCELLATION. All Universal Warrant Certificates surrendered
to the Warrant Agent for redemption or registration of transfer or exchange
shall be promptly cancelled by the Warrant Agent. The Company may at any time
deliver to the Warrant Agent for cancellation any Universal Warrant Certificates
previously countersigned and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Universal Warrant Certificates so
delivered shall, upon receipt by the Warrant Agent of an Issuer Order, be
promptly cancelled by the Warrant Agent. No Universal Warrant Certificates shall
be countersigned in lieu of or in exchange for any Universal Warrant
Certificates cancelled as provided in this Section, except as permitted by this
Agreement. All cancelled Universal Warrant Certificates held by the Warrant
Agent shall be disposed of in accordance with its customary procedures and a
certificate of their disposition shall be delivered by the Warrant Agent to the
Company, unless by Issuer Order the Company shall direct that cancelled
Universal Warrant Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire any Universal
Warrant Certificate, such acquisition shall not operate as a cancellation of
such Universal Warrant Certificate unless and until such Universal Warrant
Certificate is delivered to the Warrant Agent for the purpose of cancellation.
SECTION 1.09. ADDITIONAL WARRANT AGENTS. Whenever the Company shall appoint
a warrant agent other than the Warrant Agent with respect to the Universal
Warrants of any series, it will cause such warrant agent to execute and deliver
to the Warrant Agent an instrument in which such agent shall agree with the
Warrant Agent, subject to the provisions of this Section:
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series in
trust for the benefit of the Warrantholders of such series if any, or of the
Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by the
Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
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The Company will, on or prior to each date of any payment of Universal Warrants
of any such series, deposit with the Warrant Agent or any such additional
warrant agent a sum sufficient to make such payment, and the Company will
promptly notify the Warrant Agent of any failure to take such action with
respect to any such additional warrant agent.
SECTION 1.10. APPOINTMENT OF CALCULATION AGENTS. Pursuant to Section 1.03
hereof, the Company may, in connection with any series of Universal Warrants
appoint [name of initial Calculation Agent] or any other person or entity as
Calculation Agent to make any calculations as may be required pursuant to the
terms of any such series of Universal Warrants. Any such Calculation Agent shall
act as an independent expert and, unless otherwise provided by this Agreement,
its calculations and determinations under this Agreement shall, absent manifest
error, be final and binding on the Company, the Warrant Agent and the
Warrantholders. Any such calculations will be made available to a Warrantholder
for inspection at the Warrant Agent's Office.
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. DURATION AND EXERCISE OF UNIVERSAL WARRANTS. All terms with
respect to duration and exercise of Universal Warrants will be established
pursuant to Section 1.03 for each series of Universal Warrants.
SECTION 2.02. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS. Except as
otherwise provided herein, any money or other assets deposited with or paid to
the Warrant Agent for the payment of any Universal Warrants and not paid but
remaining unclaimed for two years after the date upon which such money or other
assets shall have become due and payable shall be repaid by the Warrant Agent to
the Company, at the Company's request pursuant to an Officer's Certificate, and
the holders of such Universal Warrants shall thereafter look only to the Company
for any payment which such holders may be entitled to collect and all liability
of the Warrant Agent with respect to such money shall thereupon cease; provided
that the Warrant Agent, before making any such repayment, may (but shall not be
obligated to) at the expense of the Company notify (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Registered Holders,
(ii) in the case of Warrants evidenced by one or more Global Warrant
Certificates, the participants of the Depositary, and (iii) in the case of
Bearer Warrants evidenced by Definitive Warrant Certificates, the holders
thereof, in each case as provided in Section 6.04, that said money has not been
so applied and remains unclaimed and that after a date named in the notification
any unclaimed balance of said money then remaining will be returned to the
Company.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. WARRANTHOLDER MAY ENFORCE RIGHTS. Notwithstanding any of the
provisions of this Agreement, any Warrantholder may, without the consent of the
Warrant Agent, the Depositary, any participant of the Depositary, any other
Warrantholder, the holder of any Warrant Property or, if applicable, the common
depositary for [ ], or its successor, as operator of the Euroclear System and
Cedelbank, or its successor, in and for its own behalf, enforce, and may
institute and maintain, any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, its right to exercise its
Universal Warrants as provided in this Agreement and established with respect to
such Universal Warrants pursuant to Section 1.03.
SECTION 3.02. NO RIGHTS AS HOLDER OF WARRANT PROPERTY CONFERRED BY
UNIVERSAL WARRANTS OR WARRANT Certificates. No Warrant Certificate or Universal
Warrant evidenced thereby shall entitle the holder or any beneficial owner
thereof to any of the rights of a holder or beneficial owner of Warrant
Property, including,
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without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Property or to vote or to enforce any
rights under any documents governing Warrant Property.
SECTION 3.03. MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety, then in any
such event the successor, if other than the Company, shall by an instrument of
assumption delivered to the Warrant Agent succeed to and be substituted for the
Company, with the same effect as if it had been named herein and in the Warrant
Certificates as the Company. The Company shall thereupon, except in the case of
a transfer by way of lease, be relieved of any further obligation hereunder and
under the Universal Warrants and the Warrant Certificates, and the Company, as
the predecessor corporation, except in the case of a transfer by way of lease,
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor and assuming corporation may thereupon cause to be signed, and
may issue either in its own name or in the name of the Company, Warrant
Certificates evidencing any or all of the Universal Warrants issuable hereunder
that theretofore shall not have been signed by the Company. All the Universal
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Universal Warrants theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Universal
Warrants had been issued at the date of the execution hereof. In any case of any
such merger, consolidation, conveyance or transfer, such changes in phraseology
and form (but not in substance) may be made in the Warrant Certificates
representing the Universal Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, conveyance, transfer or assumption
complies with the provisions of this Section.
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY. (a) In the event
the Company shall purchase or otherwise acquire Universal Warrants, such
Universal Warrants may, at the option of the Company, be (i) in the case of
Bearer Warrants or Registered Warrants evidenced by Definitive Warrant
Certificates, delivered to the Warrant Agent, and if so delivered, the Warrant
Agent shall promptly cancel such Universal Warrants on the records of the
Warrant Agent or (ii) in the case of Warrants evidenced by one or more Global
Warrant Certificates, surrendered free through a participant of the Depositary
to the Depositary for credit to the account of the Warrant Agent maintained at
the Depositary, and if so credited, the Warrant Agent shall promptly note the
cancellation of such Universal Warrants by notation on the records of the
Warrant Agent and the Warrant Agent shall cause its records to be marked to
reflect the reduction in the number of Universal Warrants evidenced by the
Global Warrant Certificate or Certificates by the number of Universal Warrants
so canceled promptly after such account is credited. Universal Warrants acquired
by the Company may also, at the option of the Company, be resold by the Company
directly or to or through any of its affiliates in lieu of being surrendered to
the Warrant Agent or credited to its account. No Warrant Certificate shall be
countersigned in lieu of or in exchange for any Universal Warrant that is
canceled as provided herein, except as otherwise expressly permitted by this
Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent under
this Agreement shall be disposed of by the Warrant Agent in accordance with its
customary procedures unless otherwise directed by the Company, and the Warrant
Agent shall deliver a certificate of disposition to the Company evidencing the
same.
SECTION 4.02. PAYMENT OF TAXES. The Company will pay all stamp, withholding
and other duties, if any, attributable to the initial issuance of each series or
tranche of Universal Warrants; provided, however, that, anything in this
Agreement to the contrary notwithstanding, the Company shall not be required to
pay any tax
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or other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in, or ownership interest of, any
Universal Warrants or Warrant Certificates.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints [name of Warrant
Agent] as Warrant Agent of the Company in respect of the Universal Warrants upon
the terms and subject to the conditions set forth herein; and [name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it in this Agreement and such
further powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it with its consent. All of the terms and
provisions with respect to such powers and authority contained in any Warrant
Certificate are subject to and governed by the terms and provisions hereof.
SECTION 5.02. CONDITION 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 Universal Warrants
shall be subject:
(a) 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 its reasonable out-of-
pocket expenses (including attorneys' fees and expenses) incurred by the Warrant
Agent without negligence or bad faith on its part in connection with the
services rendered by it hereunder. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense (including reasonable attorneys' fees and expenses) incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of liability in the
premises. The obligations of the Company under this Section shall survive the
expiration of all Universal Warrants issued under this Agreement.
(b) In acting under this Agreement, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Warrantholders.
(c) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion 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
opinion of such counsel.
(d) 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 notice, direction, consent, certificate, affidavit, opinion, 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) The Warrant Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Universal Warrants or other
obligations of the Company, 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 behalf of, or as depositary, trustee
or agent for, any committee or body of owners or holders of Universal Warrants
or other obligations of the Company as freely as if it were not the Warrant
Agent hereunder.
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(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions of
this Agreement nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law. The Warrant Agent shall not be
responsible for advancing funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be taken as
the statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
likely to involve it in any expense or liability, the payment of which is not,
in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the application by the
Company of any proceeds of the issuance of any Warrants. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in this Agreement or in any
Warrant Certificate or in the case of the receipt of any written demand from a
holder of a Universal Warrant with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders from time to time of the Universal
Warrants, that there shall at all times be a Warrant Agent hereunder with
respect to each series of Universal Warrants until all the Universal Warrants of
such series are no longer outstanding or until monies for the payment of all
outstanding Universal Warrants of such series, if any, shall have been paid to
the Warrant Agent and shall have been returned to the Company as provided in
Section 2.02, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of a successor
Warrant Agent with respect to such series and acceptance of such appointment by
such successor Warrant Agent as hereinafter provided. The Warrant Agent
hereunder may be removed with respect to any series of Universal Warrants 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 with respect
to such series (which shall be a banking institution organized under the laws of
the United States of America or one of the states thereof, have a combined
capital and surplus of at least $50,000,000 (as set forth in its most recent
reports of condition published pursuant to law or to the requirements of any
United States federal or state regulatory or supervisory authority) and having
an office in the Borough of Manhattan, The City of New York) and the acceptance
of such appointment by such successor Warrant Agent. In the event a successor
Warrant Agent has not been appointed and accepted its duties within 90 days of
the Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant Agent
with respect to such series. The obligation of the Company under Section
5.02(a)shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent with respect to any series of
Universal Warrants.
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(c) In case at any time the Warrant Agent with respect to any series
of Universal Warrants shall give notice of its intent to resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or make an assignment for the benefit of its creditors, or consent to
the appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be promptly appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder with respect to such series.
(d) Any successor Warrant Agent appointed hereunder with respect to
any series of Universal Warrants shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent with respect to such series 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 (including, without
limitation, the Warrant Register), as Warrant Agent with respect to such series
hereunder.
(e) If a successor Warrant Agent is appointed with respect to the
Universal Warrants of one or more (but not all) series, the Company, the
predecessor Warrant Agent and each successor Warrant Agent with respect to the
Universal Warrants of any applicable series shall execute and deliver an
agreement supplemental hereto that shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers and duties
of the predecessor Warrant Agent with respect to the Universal Warrants of any
series as to which the predecessor Warrant Agent is not retiring shall continue
to be vested in the predecessor Warrant Agent, and shall add to or change any of
the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Universal Warrants hereunder by more than
one Warrant Agent, it being understood that nothing herein or in such
supplemental agreement shall constitute such Warrant Agents Co-Warrant Agents of
the same Universal Warrants and that each such Warrant Agent shall be a Warrant
Agent with respect to separate series of Universal Warrants.
(f) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the corporate agency assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. AMENDMENT. (a) This Agreement and the terms of the Universal
Warrants of any series may be amended (by means of an agreement supplemental
hereto or otherwise) by the Company and the Warrant Agent, without the consent
of the Warrantholders of any series of Universal Warrants, (i) for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent
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provision contained herein or therein, (ii) to establish the form or terms of
Warrant Certificates or Universal Warrants of any series as permitted by
Sections 1.02 and 1.03, (iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Warrant Agent with respect to the Universal
Warrants of any series and to add to or change any of the provisions of this
Agreement as shall be necessary to provide for or facilitate the administration
of the Universal Warrants hereunder by more than one Warrant Agent pursuant to
Section 5.03, or (iv) in any other manner which the Company may deem necessary
or desirable and which will not materially and adversely affect the interests of
the Warrantholders of such series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the then
outstanding Universal Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Universal Warrants of any
series, reduces the amount receivable upon exercise, cancellation or expiration
of the Warrants other than in accordance with the antidilution provisions or
other similar adjustment provisions included in the terms of the Warrants,
shortens the period of time during which the Universal Warrants of such series
may be exercised, or otherwise materially and adversely affects the exercise
rights of the affected Warrantholders or reduces the percentage of the number of
outstanding Universal Warrants of such series, the consent of whose holders is
required for modification or amendment of this Agreement, may be made without
the consent of each Warrantholder affected thereby. In the case of Universal
Warrants evidenced by one or more Global Warrant Certificates, the Company and
the Warrant Agent shall be entitled to rely upon certification in form
satisfactory to each of them that any requisite consent has been obtained from
holders of beneficial ownership interests in the relevant Global Warrant
Certificate. Such certification may be provided by participants of the
Depositary acting on behalf of such beneficial owners of Universal Warrants,
provided that any such certification is accompanied by a certification from the
Depositary as to the Universal Warrant holdings of such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or more
particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any other
series.
(d) Upon the request of the Company, accompanied by a copy of a Board
Resolution (which Board Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) authorizing the
execution of any such amendment, and upon the filing with the Warrant Agent of
evidence of the consent of Warrantholders as aforesaid, the Warrant Agent shall
join with the Company in the execution of such amendment unless such amendment
affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise, in which case the Warrant Agent may in its discretion,
but shall not be obligated to, enter into such amendment. In executing, or
accepting the additional duties created by, any amendment permitted by this
Article, the Warrant Agent shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement. The fact and date
of the execution of any consent of Warrantholders, or the authority of the
Person executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the Warrantholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND THE WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Warrantholder pursuant to the provisions of
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20
this Agreement or the terms of the Universal Warrants of any series, the Warrant
Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications to the Warrant
Agent with respect to this Agreement shall be in writing addressed to [Warrant
Agent address], Attention: [Warrant Agent Contact] (the "Warrant Agent's
Office") and any communications to the Company with respect to this Agreement
shall be addressed to Fleet Boston Corporation, Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel (or in each case to such
other address as shall be given in writing to the other party hereto).
SECTION 6.04. NOTICES TO WARRANTHOLDERS. The Company may cause to have
notice given to the Warrantholders of any series by providing the Warrant Agent
with a form of notice to be distributed by (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Warrant Agent to
Registered Holders by first class mail, (ii) in the case of Warrants evidenced
by one or more Global Warrant Certificates, the Depositary to be distributed by
the Depositary to its participants in accordance with the custom and practices
of the Depositary or (iii) in the case of Bearer Warrants evidenced by
Definitive Warrant Certificates, publication at least once in an Authorized
Newspaper (as defined below) in The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition)
and, in the case of Western Europe, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York, and
Western Europe, as applicable. If it shall be impractical in the opinion of the
Warrant Agent to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given with the approval of the Warrant Agent shall constitute a
sufficient publication of such notice.
SECTION 6.05. OBTAINING OF APPROVALS. The Company will from time to time
take all action that may be necessary to obtain and keep effective any and all
filings or notices under applicable law, which may be or become required in
connection with the issuance, sale, trading, transfer or delivery of the Warrant
Certificates or the exercise of the Universal Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this
Agreement expressed or implied and nothing that may be inferred from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Company, the Warrant Agent and the
Warrantholders any right, remedy or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent, their respective successors and the Warrantholders.
SECTION 6.07. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the Warrant Agent's Office for inspection
by the Warrantholders, participants of the Depositary certified as such by the
Depositary or any person certified by any such participant to be an indirect
participant of the Depositary or any person certified by any such participant to
be a beneficial owner of a Universal Warrant, in each case, on behalf of whom
such participant holds Universal Warrants.
SECTION 6.08. OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN. (a) Each certificate or opinion provided for in this
Agreement and delivered to the Warrant Agent with respect to compliance with a
condition or covenant provided for in this Agreement shall include (i) a
statement that the person making such certificate or opinion has read such
covenant or condition, (ii) a brief statement as to the
-17-
21
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (iii) a
statement that, in the opinion of such person, such person has made such
examination or investigation as is necessary to enable such person to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
such officer's certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion of
or representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which such officer's certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which such officer's or counsel's, as the
case may be, certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Warrant Agent shall contain a
statement that such firm is independent.
SECTION 6.09. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date
fixed for any payment with respect to the Universal Warrants of any series
appertaining thereto shall not be a Business Day (as defined below), then such
payment need not be made on such date, but may be made on the next succeeding
Business Day with same force and effect as if made on the date fixed, and no
interest shall accrue for the period after such date.
"Business Day" means, with respect to any Universal Warrant, a Business Day
as defined in any debt security included in any unit comprising such Universal
Warrant or as otherwise established pursuant to Section 1.03 hereof or if the
term Business Day is not so specified, Business Day means any day that is not a
Saturday or Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law,
regulation or executive order to be closed.
SECTION 6.10. JUDGMENT CURRENCY. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the Universal Warrants of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Warrant Agent could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day
(as defined below), in which event, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Warrant Agent could purchase in The City of New York the
Required Currency with the Judgment Currency on the last New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Agreement and the terms of the Universal Warrants of such
series to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with clause 6.10(a)), in any
-18-
22
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum due
under this Agreement. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 6.11. HEADINGS. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 6.13. APPLICABLE LAW. This Agreement and each Universal Warrant
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of said State,
excluding choice of law provisions.
[Signatures continued on next page]
-19-
23
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
[NAME OF WARRANT AGENT]
By:________________________________
Name:______________________________
Title:_____________________________
-20-
24
EXHIBIT I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. ___________ CUSIP No. __________________________
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.](1)
FLEET BOSTON CORPORATION
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____](2)
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered assigns,
is the Registered Holder of the number of [Designation of Universal Warrants]
(the "Warrants") [specified above](3) [specified on Schedule A hereto](4). Upon
receipt by the Warrant Agent of this Warrant Certificate, the exercise notice on
the reverse hereof (or an exercise notice in substantially identical form
delivered herewith)(the "Exercise Notice"), duly completed and executed, and the
Call Price per Warrant set forth above, in the form set forth above, for each
Warrant to be exercised (the "Exercise Property") at the Warrant Agent's Window,
Attention: Tender Department, in the Borough of Manhattan, The City of New York,
each Warrant evidenced hereby entitles the Registered Holder hereof to receive,
subject to the terms and conditions set forth herein and in the Warrant
Agreement (as defined below), from Fleet Boston Corporation (the "Company") the
amount and form of
--------
1 Applies to global warrant certificates.
2 Applies to global warrant certificates.
3 Applies to definitive warrant certificates.
4 Applies to global warrant certificates.
25
property (the "Warrant Property") specified above. Warrants will not entitle the
Warrantholder to any of the rights of the holders of any of the Warrant
Property.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, Fleet Boston Corporation has caused this instrument to
be duly executed.
Dated:_____________________
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:______________________________
Secretary
Countersigned as of the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:______________________________
Authorized Officer
I-2
26
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
FLEET BOSTON CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of [date of Warrant Agreement] (the
"Warrant Agreement"), between the Company and [Name of Warrant Agent] (the
"Warrant Agent") and are subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions each Warrantholder
consents by acceptance of this Warrant Certificate or a beneficial interest
therein and which Warrant Agreement is hereby incorporated by reference in and
made a part of this Warrant Certificate. Without limiting the foregoing, all
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Warrant Agreement. A copy of the Warrant Agreement is on file
at the Warrant Agent's Office. The Warrants constitute a separate series of
Universal Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank
pari passu with the Company's other unsecured contractual obligations and with
the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
may be exercised during the dates of exercise set forth on the face hereof by
delivering or causing to be delivered this Warrant Certificate, the Exercise
Notice, duly completed and executed, and the Exercise Property for each such
Warrant to the Warrant Agent's Window, in the Borough of Manhattan, The City of
New York, which is, on the date hereof (unless otherwise specified herein),
[Address of Warrant Agent], Attention: [Warrant Agent contact], or at such other
address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the
Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
I-3
27
[Designation of Universal Warrants]
Exercise Notice
[Name and Address of Warrant Agent]
[ ]
[ ]
Attention: [Warrant Agent Contact]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants, and the Exercise Property with respect thereto.(1)
The Registered Holder hereby directs the Warrant Agent (a) to deliver the
Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants
represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________________________ __________________________________
(Registered Holder)
By:_______________________________
Authorized Signature
Address: ___________________
Telephone:___________________
--------------------
1 Only if terms of the Warrants contemplate that the holder may deliver Warrant
Property to exercise the Warrants.
I-4
28
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global
Universal Warrant is __________. In accordance with the Universal Warrant
Agreement and the Unit Agreement dated as of [date of Warrant Agreement] among
the Issuer, [name of Warrant Agent], as Unit Agent, as Warrant Agent, as
Collateral Agent, and as Trustee under the Indenture referred to therein and the
Holders from time to time of the Units described therein, the following (A)
exchanges of [the number of Universal Warrants indicated below for a like number
of Universal Warrants to be represented by a Global Universal Warrant that has
been separated from a Unit (a "Separated Universal Warrant")1 [the number of
Universal Warrants that had been represented by a Global Universal Warrant that
is part of a Unit (an "Attached Unit Universal Warrant") for a like number of
Universal Warrants represented by this Global Universal Warrant]2 or (B)
reductions as a result of the exercise of the number of Universal Warrants
indicated below have been made:
[Number of
Attached
Unit
Universal
Warrants
Exchanged
for Universal
[Number [Reduced Warrants [Increased
Exchanged Number represented Number Reduced Notation
for Outstanding by this Outstanding Number of Number Made by or
Date of Separated Following Separated Following Universal Outstanding on Behalf of
Exchange or Universal Such Universal Such Warrants Following Warrant
Exercise Warrants](1) Exchange](1) Warrant](2) Exchange](2) Exercised Such Exercise Agent
----------- ------------ ------------ ----------- ------------ --------- ------------- ------------
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. ___________ CUSIP No. __________________________
-------------------------
1 Applies only if this Global Universal Warrant is part of a Unit.
2 Applies only if this Global Universal Warrant has been separated from a Unit.
II-5
29
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.]1
FLEET BOSTON CORPORATION
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO ____](1)
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF DETERMINING SAME):
[WARRANT PROPERTY:](2)
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:](2)
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:](2)
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE DELIVERED FOR SALE UPON
EXERCISE OF WARRANTS:](2)
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered assigns,
is the Registered Holder of the number of [Designation of Universal Warrants]
(the "Warrants") [specified above]1 [specified on Schedule A hereto]2 . Upon
receipt by the Warrant Agent of this Warrant Certificate, the exercise notice on
the reverse hereof (or an exercise notice in substantially identical form
delivered herewith)(the "Exercise Notice"), duly completed and executed, and the
Amount of Warrant Property saleable per Warrant set forth above, adjusted, if
applicable, as set forth above, for each Warrant to be exercised, delivered as
set forth above at the Warrant Agent's Window, Attention: Tender Department, in
the Borough of Manhattan, The City of New York (which is, on the date hereof,
[Warrant Agent address], Attention: [Warrant Agent Contact]), each Warrant
evidenced hereby entitles the Registered Holder hereof to receive, subject to
the terms and conditions set forth herein and in the Warrant Agreement (as
defined below), from Fleet Boston Corporation (the "Company") the [Cash
Settlement Value][Put Price]3 per Warrant specified above.
Unless otherwise indicated above, a Warrant will not require or entitle a
Warrantholder to sell or deliver to the Company, nor will the Company be under
any obligation to, nor will it, purchase or take delivery from any Warrantholder
of, any Warrant Property, and upon exercise of a Warrant, the Company will make
only a cash
--------------------------------
1 Applies to global warrant certificates.
2 Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
3 Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
II-6
30
payment in the amount of the Cash Settlement Value or Put Price per Warrant.
Warrantholders will not receive any interest on any Cash Settlement Value.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, Fleet Boston Corporation has caused this instrument to
be duly executed.
Dated:________________________
FLEET BOSTON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:__________________________
Secretary
Countersigned as of the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:__________________________
II-7
31
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
FLEET BOSTON CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of [Warrant Agreement date] (the
"Universal Warrant Agreement"), between the Company and [name of Warrant Agent]
(the "Warrant Agent") and are subject to the terms and provisions contained in
the Universal Warrant Agreement, to all of which terms and provisions each
Warrantholder consents by acceptance of this Warrant Certificate or a beneficial
interest therein and which Universal Warrant Agreement is hereby incorporated by
reference in and made a part of this Warrant Certificate. Without limiting the
foregoing, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Universal Warrant Agreement. A copy of the
Universal Warrant Agreement is on file at the Warrant Agent's Office. The
Warrants constitute a separate series of Universal Warrants under the Universal
Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank
pari passu with the Company's other unsecured contractual obligations and with
the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
may be exercised during the dates of exercise set forth on the face hereof by
delivering or causing to be delivered this Warrant Certificate, the Exercise
Notice, duly completed and executed, and the Exercise Property for each such
Warrant to the Warrant Agent's Window, in the Borough of Manhattan, the City of
New York, which is, on the date hereof (unless otherwise specified herein),
[Warrant Agent address], Attention: [Warrant Agent Contact], or at such other
address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the Cash
Settlement Value per Warrant set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
II-8
32
[Designation of Universal Warrants]
Exercise Notice
[Name and Address of Warrant Agent]
[ ]
[ ]
Attention: [Warrant Agent Contact]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's name,
representing a number of Warrants at least equal to the number of Exercised
Warrants[, and the Warrant Property with respect thereto]1.
The Registered Holder hereby directs the Warrant Agent (a) to deliver the
[Cash Settlement Value][Put Price]* per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the number of
Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ____________________________ __________________________________
(Registered Holder)
By:_______________________________
Authorized Signature
Address: ___________________
Telephone:___________________
--------------------------
1 Only if terms of the Warrants contemplate that the holder may deliver Warrant
Property to exercise the Warrants.
II-9
33
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal
Warrant is __________. In accordance with the Universal Warrant Agreement and
the Unit Agreement dated as of [Date of Warrant Agreement] among the Issuer,
[name of Warrant Agent], as Unit Agent, as Warrant Agent, as Collateral Agent,
and as Trustee under the Indenture referred to therein and the Holders from time
to time of the Units described therein, the following (A) exchanges of [the
number of Universal Warrants indicated below for a like number of Universal
Warrants to be represented by a Global Universal Warrant that has been separated
from a Unit (a "Separated Universal Warrant")]1 [the number of Universal
Warrants that had been represented by a Global Universal Warrant that is part of
a Unit (an "Attached Unit Universal Warrant") for a like number of Universal
Warrants represented by this Global Universal Warrant]2 or (B) reductions as a
result of the exercise of the number of Universal Warrants indicated below have
been made:
[Number of
Attached
Unit
Universal
Warrants
Exchanged
for Universal
[Number [Reduced Warrants [Increased
Exchanged Number represented Number Reduced Notation
for Outstanding by this Outstanding Number of Number Made by or
Date of Separated Following Separated Following Universal Outstanding on Behalf of
Exchange or Universal Such Universal Such Warrants Following Warrant
Exercise Warrants](1) Exchange](1) Warrant](2) Exchange](2) Exercised Such Exercise Agent
----------------
1 Applies only if this Global Universal Warrant is part of a Unit.
2 Applies only if this Global Universal Warrant has been separated from a Unit.
II-10
