EXHIBIT 4.19
ASK JEEVES, INC.
and
_________________, AS WARRANT AGENT
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
DATED AS OF
[____________]
TABLE OF CONTENTS
PAGE
ARTICLE 1 ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES...... 1
1.1 Issuance of Warrants............................................................. 1
1.2 Execution and Delivery of Warrant Certificates................................... 2
1.3 Issuance of Warrant Certificates................................................. 2
ARTICLE 2 WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS............................. 3
2.1 Warrant Price.................................................................... 3
2.2 Duration of Warrants............................................................. 3
2.3 Exercise of Warrants............................................................. 3
ARTICLE 3 OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES....... 4
3.1 No Rights as Holders of Warrant Debt Securities Conferred by Warrants
or Warrant Certificates.......................................................... 4
3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates........................ 5
3.3 Holder of Warrant Certificate May Enforce Rights................................. 5
3.4 Merger, Sale, Conveyance or Lease................................................ 5
3.5 Notice to Warrantholders......................................................... 6
ARTICLE 4 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES................................ 6
4.1 Exchange and Transfer of Warrant Certificates.................................... 6
4.2 Treatment of Holders of Warrant Certificates..................................... 7
4.3 Cancellation of Warrant Certificates............................................. 7
ARTICLE 5 CONCERNING THE WARRANT AGENT................................................. 7
5.1 Warrant Agent.................................................................... 7
5.2 Conditions of Warrant Agent's Obligations........................................ 8
5.3 Resignation, Removal and Appointment of Successors............................... 9
ARTICLE 6 MISCELLANEOUS................................................................ 10
6.1 Amendment........................................................................ 10
6.2 Notices and Demands to the Company and Warrant Agent............................. 11
6.3 Addresses........................................................................ 11
6.4 Governing Law.................................................................... 11
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TABLE OF CONTENTS
(continued)
PAGE
6.5 Delivery of Prospectus........................................................... 11
6.6 Obtaining of Governmental Approvals.............................................. 11
6.7 Persons Having Rights Under Warrant Agreement.................................... 11
6.8 Headings......................................................................... 11
6.9 Counterparts..................................................................... 11
6.10 Inspection of Agreement.......................................................... 12
-ii-
ASK JEEVES, INC.
Form of Debt Securities Warrant Agreement
DEBT SECURITIES WARRANT AGREEMENT, dated as of ______________ between ASK
JEEVES, INC., a Delaware corporation (the "Company") and ____________, a
[corporation] [national banking association] organized and existing under the
laws of _____________and having a corporate trust office in ________, as warrant
agent (the "WARRANT AGENT").
WHEREAS, the Company has entered into an indenture dated as of [
_________(the "SENIOR INDENTURE"), with _______________, as trustee (such
trustee, and any successors to such trustee, herein called the "SENIOR
TRUSTEE"), providing for the issuance from time to time of its unsubordinated
debt securities, to be issued in one or more series as provided in the Senior
Indenture (the "DEBT SECURITIES");] [ __________(the "SUBORDINATED INDENTURE"),
with ___________, as trustee (such trustee, and any successors to such trustee,
herein called the "SUBORDINATED TRUSTEE"), providing for the issuance from time
to time of its subordinated debt securities, to be issued in one or more series
as provided in the Subordinated Indenture (the "DEBT SECURITIES");]
WHEREAS, the Company proposes to sell [If Warrants are sold with other
securities -- title of such other Securities being offered (the "OTHER
SECURITIES") with] warrant certificates evidencing one or more warrants (the
"WARRANTS" or, individually, a "WARRANT") representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the
"WARRANT DEBT SECURITIES"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "WARRANT
CERTIFICATES"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and replacement of the
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged,
exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 ISSUANCE OF WARRANTS. [If Warrants alone -- Upon issuance, each
Warrant Certificate shall evidence one or more Warrants.] [If Other Securities
and Warrants -- Warrant Certificates shall be [initially] issued in connection
with the issuance of the Other Securities [but shall be separately transferable
on and after _______________(the "DETACHABLE DATE")] [and shall not be
separately transferable] and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase one Warrant Debt
Security. [If Other Securities and
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Warrants -- Warrant Certificates shall be initially issued in units with the
Other Securities and each Warrant Certificate included in such a unit shall
evidence _____________Warrants for each [$ ________________ principal amount]
[_______ shares] of Other Securities included in such unit.].
1.2 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters, numbers, or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or to conform to usage.
The Warrant Certificates shall be signed on behalf of the Company by any of its
present or future chief executive officers, presidents, senior vice presidents,
vice presidents, chief financial officers, chief legal officers, treasurers,
assistant treasurers, controllers, assistant controllers, secretaries or
assistant secretaries under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Other Securities and Warrants are not immediately detachable -- or upon the
registration of the Other Securities prior to the Detachable Date. Prior to the
Detachable Date, the Company will, or will cause the registrar of the Other
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Other Securities as may be necessary to keep the Warrant
Agent's records up to date].
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1.3 ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates evidencing
the right to purchase Warrant Debt Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign such Warrant
Certificates and shall deliver such Warrant Certificates to or upon the order of
the Company.
ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
2.1 WARRANT PRICE. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Warrant Agreement and the applicable
Warrant Certificate, entitle the holder thereof, to purchase the principal
amount of Warrant Debt Securities specified in the applicable Warrant
Certificate at an initial exercise price of ________% of the principal amount
thereof [plus accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [plus accrued interest, if any, from the most
recent date from which interest shall have been paid on the Warrant Debt
Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original issue
discount ($ _______ for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a _______% annual rate, computed on a[n] [semi-] annual
basis [using a 360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this Agreement as the
"WARRANT PRICE."
2.2 DURATION OF WARRANTS. Each Warrant may be exercised in whole or in
part at any time, as specified herein, on or after [the date thereof]
[__________] and at or before [______] p.m., [City] time, on ___________ or such
later date as the Company may designate by notice to the Warrant Agent and the
holders of Warrant Certificates mailed to their addresses as set forth in the
record books of the Warrant Agent (the "Expiration Date"). Each Warrant not
exercised at or before [__________] p.m., [City] time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
2.3 EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.2, the Warrants may be
exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the
Warrant Certificate and by paying in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds] the
Warrant Price for each Warrant Debt Security with respect to which a Warrant is
being exercised to the Warrant Agent at its corporate trust office, provided
that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Debt Securities set forth on the reverse side of
the Warrant Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to
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receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised; provided, however, that if, at the date of
receipt of such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Debt Securities purchasable upon the exercise
of such Warrants shall be closed, no such receipt of such Warrant Certificates
and no such payment of such Warrant Price shall be effective to constitute the
person so designated to be named as the holder of record of such Warrant Debt
Securities on such date, but shall be effective to constitute such person as the
holder of record of such Warrant Debt Securities for all purposes at the opening
of business on the next succeeding day on which the transfer books for the
Warrant Debt Securities purchasable upon the exercise of such Warrants shall be
opened, and the certificates for the Warrant Debt Securities in respect of which
such Warrants are then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened, and until such
date the Company shall be under no duty to deliver any certificate for such
Warrant Debt Securities. The Warrant Agent shall deposit all funds received by
it in payment of the Warrant Price in an account of the Company maintained with
it and shall advise the Company by telephone at the end of each day on which a
payment for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such telephone advice to
the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Debt Securities to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants for the remaining Warrant Debt Securities after such
exercise, and (iv) such other information as the Company or the [Senior]
[Subordinated] Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations, to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Debt Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
were exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Debt Securities remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or deliver
any Warrant Debt Securities until such tax or other charge shall have been paid
or it has been established to the Company's satisfaction that no such tax or
other charge is due.
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ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
3.1 NO RIGHTS AS HOLDERS OF WARRANT DEBT SECURITIES CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Debt Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any, on the Warrant
Debt Securities or to enforce any of the covenants in the Indenture.
3.2 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it and the
Company of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and/or indemnity reasonably satisfactory to the Warrant
Agent and the Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for cancellation, then, in
the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of Warrant Debt
Securities. Upon the issuance of any new Warrant Certificate under this Section
3.2, the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the [Senior] [Subordinated] Trustee,
the holder of any Warrant Debt Securities or the holder of any other Warrant
Certificate, may, in such holder's own behalf and for such holder's own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such holder's right
to exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificates and in this Agreement.
3.4 MERGER, SALE, CONVEYANCE OR LEASE. In case of (a) any share
exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in
which the Company is the acquiring or surviving corporation) or (b) the sale,
exchange, lease, transfer or other disposition of all or substantially all of
the properties and assets of the Company as an entirety (in any such case, a
5
"REORGANIZATION EVENT"), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the same
from the Company's successor shall be delivered to the holders of the Warrants,
so that such successor shall succeed to and be substituted for the Company, and
assume all the Company's obligations under, this Agreement and the Warrants. The
Company shall thereupon be relieved of any further obligation hereunder or under
the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming entity thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of its
obligations to deliver Warrant Debt Securities upon exercise of the Warrants.
All the Warrants so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as may be
appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such Reorganization Event complies with the
provisions of this Section 3.4.
3.5 NOTICE TO WARRANTHOLDERS. In case the Company shall (a) effect any
Reorganization Event or (b) make any distribution on or in respect of the [title
of Warrant Debt Securities] in connection with the dissolution, liquidation or
winding up of the Company, then the Company shall mail to each holder of
Warrants at such holder's address as it shall appear on the books of the Warrant
Agent, at least ten days prior to the applicable date hereinafter specified, a
notice stating the date on which such Reorganization Event, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of [title of Warrant Debt Securities] of
record shall be entitled to exchange their shares of [title of Warrant Debt
Securities] for securities or other property deliverable upon such
Reorganization Event, dissolution, liquidation or winding up. No failure to mail
such notice nor any defect therein or in the mailing thereof shall affect any
such transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [If Other Securities
with Warrants which are immediately detachable -- Upon] [If Other Securities
with Warrants which are not immediately detachable -- Prior to the Detachable
Date, a Warrant Certificate may be exchanged or transferred only together with
the Other Security to which the Warrant Certificate was initially attached, and
only for the purpose of effecting or in conjunction with an exchange or transfer
of such Other Security. Prior to any Detachable Date, each transfer of the Other
Security shall operate also to transfer the related Warrant Certificates. After
the Detachable Date, upon] surrender at the corporate trust office of the
Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged for
Warrant Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided that such other
Warrant Certificates evidence Warrants for the same aggregate principal amount
6
of Warrant Debt Securities as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office, books in which, subject
to such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office for exchange or registration of transfer, properly endorsed or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent. No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the issuance of a
Warrant Certificate evidencing a Warrant for a fraction of a Warrant Debt
Security or a number of Warrants for a whole number of Warrant Debt Securities
and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon
any exchange or registration of transfer of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations and entitled
to the same benefits under this Agreement as the Warrant Certificate surrendered
for such exchange or registration of transfer.
4.2 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [If Other Securities
and Warrants are not immediately detachable -- Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of the
Other Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date and prior to due
presentment of a Warrant Certificate for registration of transfer, the] [The]
Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
4.3 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant Certificate
surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
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ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 WARRANT AGENT. The Company hereby appoints ____________as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and __________
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further power and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such power and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
5.2 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions hereof, including
the following to all of which the Company agrees and to all of which the rights
hereunder of the holders from time to time of the Warrant Certificates shall be
subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
without negligence, bad faith or willful misconduct by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, including the reasonable
costs and expenses of defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel satisfactory to
it, which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent
8
permitted by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to
prevent the Warrant Agent from acting as [Senior] [Subordinated] Trustee under
the [Senior] [Subordinated] Indenture.
(f) NO LIABILITY FOR INTEREST. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
5.3 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSORS.
(a) The Company agrees, for the benefit of the holders from time to time
of the Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
9
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.2(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or state
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) 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 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.
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ARTICLE 6
MISCELLANEOUS
6.1 AMENDMENT. This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the Warrant
Agent may deem necessary or desirable; provided that such action shall not
materially adversely affect the interests of the holders of the Warrant
Certificates.
6.2 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If the Warrant
Agent shall receive any notice or demand addressed to the Company by the holder
of a Warrant Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to the Company.
6.3 ADDRESSES. Any communication from the Company to the Warrant Agent
with respect to this Agreement shall be addressed to _______________, Attention:
__________ _____________ and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Ask Jeeves, Inc.,
0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief
Financial Officer (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
6.4 GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the laws of the
State of [New York].
6.5 DELIVERY OF PROSPECTUS. The Company shall furnish to the Warrant
Agent sufficient copies of a prospectus meeting the requirements of the
Securities Act of 1933, as amended, relating to the Warrant Debt Securities
deliverable upon exercise of the Warrants (the "PROSPECTUS"), and the Warrant
Agent agrees that upon the exercise of any Warrant, the Warrant Agent will
deliver to the holder of the Warrant Certificate evidencing such Warrant, prior
to or concurrently with the delivery of the Warrant Debt Securities issued upon
such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.
6.6 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from time to
time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities act filings under United States Federal and state laws (including
without limitation a registration statement in respect of the Warrants and
Warrant Debt Securities under the Securities Act of 1933, as amended), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Debt Securities issued upon exercise of the Warrants,
the issuance, sale, transfer and delivery of the Warrants or upon the expiration
of the period during which the Warrants are exercisable.
11
6.7 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in this
Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
6.8 HEADINGS. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10 INSPECTION OF AGREEMENT. A copy of this Agreement shall be available
at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent
may require such holder to submit his Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
ASK JEEVES, INC.
By______________________________________
Its_____________________________________
Attest:
________________________________ _____________________________________, as
Warrant Agent
By______________________________________
Its_____________________________________
[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form if Warrants are attached to Other Prior to ________, this Warrant
Securities and are not immediately Certificate cannot be transferred or
detachable. exchanged unless attached to a
[Title of Other Security].]
[Form of Legend if Warrants are not Prior to _________, Warrants
immediately exercisable. evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [__________] P.M., [CITY] TIME, ON ,
ASK JEEVES, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
No. Warrants
This certifies that _____________or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [If Warrants are attached to Other Securities and are not immediately
detachable -- , subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined)] to purchase, at any time [after
[________] p.m., [City] time, on __________ and] on or before [_______] p.m.,
[City] time, on _______, $ ____ principal amount of [Title of Warrant Debt
Securities] (the "WARRANT DEBT SECURITIES"), of Ask Jeeves, Inc. (the
"COMPANY"), issued or to be issued under the Indenture (as hereinafter defined),
on the following basis: during the period from __________, through and including
_______, each Warrant shall entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase the principal amount of Warrant Debt
Securities stated in the Warrant Certificate at the warrant price (the "WARRANT
PRICE") of _______% of the principal amount thereof [plus accrued amortization,
if any, of the original issue discount of the Warrant Debt Securities] [plus
accrued interest, if any, from the most recent date from which interest shall
have been paid on the Warrant Debt Securities or, if no interest shall have been
paid on the Warrant Debt Securities, from the date of their original issuance].
[The original issue discount ($ ________ for each $1,000 principal amount of
Warrant Debt Securities) will be amortized at a _______% annual rate, computed
on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day
months]. The Holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full, in
lawful money of the United States of America, [in cash or by certified check or
A-1
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price for each Warrant Debt Security
with respect to which this Warrant is exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "WARRANT
AGENT"), which is, on the date hereof, at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "HOLDER" as used herein shall mean [If Warrants are attached to
Other Securities and are not immediately detachable -- , prior to _________,
____(the "DETACHABLE DATE"), the registered owner of the Company's [title of
Other Securities] to which this Warrant Certificate was initially attached, and
after such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000 or any
integral multiple thereof in registered form. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the Holder hereof a new Warrant Certificate evidencing Warrants for the
aggregate principal amount of Warrant Debt Securities remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________, ____ (the "WARRANT AGREEMENT"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent.
The Warrant Debt Securities to be issued and delivered upon the exercise
of Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, [dated as of _________, ____ (the "SENIOR
INDENTURE"), between the Company and ________ , as trustee (such trustee, and
any successors to such trustee, the "SENIOR TRUSTEE")] [dated as of _________,
____, (the "SUBORDINATED INDENTURE"), between the Company and __________, as
trustee (such trustee, and any successors to such trustee, the "SUBORDINATED
Trustee")] and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the [Senior]
[Subordinated] Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee.
[If Warrants are attached to Other Securities and are not immediately
detachable -- Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"OTHER SECURITIES") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting or in conjunction with, an exchange or
transfer of such Other Security. Additionally, on or prior to the Detachable
Date, each transfer of such Other Security on the register of the Other
Securities shall operate also to transfer this Warrant Certificate. After such
date, transfer of this] [If Warrants are attached to Other Securities and are
immediately detachable -- Transfer of this] Warrant Certificate may be
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registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent by the registered owner or such owner's assigns, in
the manner and subject to the limitations provided in the Warrant Agreement.
[If Other Securities with Warrants which are not immediately
detachable-Except as provided in the immediately preceding paragraph, after][If
Other Securities with Warrants which are immediately detachable or Warrants
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing Warrants for the same aggregate principal amount of
Warrant Debt Securities.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: __________________ ASK JEEVES, INC.
By__________________________________
Its_________________________________
Attest:
________________________________
Countersigned:
________________________________
As Warrant Agent
By: ____________________________
Authorized Signature
A-3
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby for Warrant Debt Securities (as
hereinafter defined), the Holder must pay, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [Warrant Agent] [address of
Warrant Agent], Attn: ___________, which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the
Holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise ___________
Warrants, represented by this Warrant Certificate, to purchase $ ________
principal amount of the [Title of Warrant Debt Securities] (the "WARRANT DEBT
SECURITIES") of Ask Jeeves, Inc. and represents that he has tendered payment for
such Warrant Debt Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House
funds] [by bank wire transfer in immediately available funds], to the order of
Ask Jeeves, Inc., c/o [insert name and address of Warrant Agent], in the amount
of $ ___________ in accordance with the terms hereof. The undersigned requests
that said principal amount of Warrant Debt Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all
as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the aggregate principal amount of Warrant Debt
Securities remaining unexercised be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
Dated:__________________________ Name ___________________________________
(Please Print)
Address ________________________________
________________________________________
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
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Signature Guaranteed ________________________________________
Signature
_________________________________ (Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Midwest or Pacific Stock
Exchange)
This Warrant may be exercised at the following addresses:
By hand at _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
By mail at _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
[Instructions as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised -- complete as appropriate.]
A-2
ASSIGNMENT
[Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto:
_______________________________
_______________________________
_______________________________ __________________________________________
(Please print name and address Please insert Social Security or other
including zip code) identifying number
the right represented by the within Warrant to purchase $ ___________
aggregate principal amount of [Title of Warrant Debt Securities] of Ask Jeeves,
Inc. to which the within Warrant relates and appoints ___________ attorney to
transfer such right on the books of the Warrant Agent with full power of
substitution in the premises.
Dated__________________________ __________________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
Signature Guaranteed
________________________________
