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EXHIBIT 1
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "AGREEMENT") is entered into as
of January 16, 2001, by and between ORBITAL SCIENCES CORPORATION, a Delaware
corporation (the "COMPANY"), and FLEET NATIONAL BANK, a national banking
association, as Warrant Agent (together with any successors and assigns, the
"WARRANT AGENT").
RECITALS
A. WHEREAS, the Company was a defendant in a
class-action lawsuit (the "CASE") filed in the United States District Court for
the Eastern District of Virginia (the "COURT"), entitled In re Orbital Sciences
Corp. Securities Litigation, Civil Action No. 99-197-A;
B. WHEREAS, in connection with the case and as part of
the transactions to be consummated pursuant to the Stipulation of Settlement
(the "SETTLEMENT"), the Company has agreed to issue Warrants for the purchase of
an aggregate (subject to adjustment as herein provided) of 4,631,121 shares of
Common Stock, par value $0.01 per share ("COMMON STOCK"), of the Company (each,
a "WARRANT");
C. WHEREAS, by Order dated December 13, 2000, the Court
approved the Settlement;
D. WHEREAS, the Settlement contemplates that the Company
will enter into certain agreements, including, without limitation, this
Agreement;
E. WHEREAS, the Company desires to issue the Warrants,
each of which entitles the holder thereof to purchase one share of its Common
Stock (each of said shares of Common Stock deliverable upon exercise of the
Warrants, a "WARRANT SHARE"); and
F. WHEREAS, the Company wishes the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing to so act, in
connection with the issuance, division, transfer, exchange and exercise of
Warrants.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises and covenants contained herein and for other good and valuable
consideration, the receipt and adequacy of which hereby are acknowledged, to
implement the terms of the Settlement, and for the purpose of defining the terms
and provisions of the Warrants and the respective rights and obligations
thereunder
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of the Company and the registered owners of the Warrants and any security into
which they may be exchanged (the "HOLDERS"), the parties hereto covenant and
agree as follows:
SECTION 1
DEFINITIONS
In this Agreement, the following terms have the meanings
specified or referred to in this Section 1 and shall be equally applicable to
both the singular and plural forms. Any agreement referred to below shall mean
such agreement as amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by this Agreement.
"AGREEMENT" has the meaning specified in the introductory
paragraph of this Warrant Agreement.
"ASSETS" has the meaning specified in Section 9.1(c) hereof.
"BUSINESS DAY" means a day other than (a) a Saturday or
Sunday, (b) any day on which banking institutions located in the City of New
York, New York are required or authorized by law or by local proclamation to
close or (c) any day on which the New York Stock Exchange is closed.
"CASE" has the meaning specified in Recital A hereof.
"COMMERCIALLY REASONABLE EFFORTS," when used with respect to
any obligation to be performed or term or provision to be observed hereunder,
means such efforts as a prudent Person seeking the benefits of such performance
or action would make, use, apply or exercise to preserve, protect or advance its
(i.e., a Holder's) rights or interests; provided that such efforts do not
require the Person whose performance or observance is required hereunder to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the commencement,
termination or settlement of any action, suit or proceeding involving the Person
whose performance or observance is required
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hereunder to the extent necessary or appropriate to effect the relevant action.
"COMMON STOCK" has the meaning specified in Recital B hereof.
"COURT" has the meaning specified in Recital A of this
Agreement.
"CURRENT MARKET PRICE" has the meaning specified in Section
9.1(d)(i) hereof.
"EFFECTIVE DATE" has the meaning specified in Section 4.1
hereof.
"EXERCISE PERIOD" has the meaning specified in Section 4.1
hereof.
"EXERCISE PRICE" means $4.82 per share of Common Stock, as
adjusted pursuant to Section 9 hereof.
"HOLDERS" has the meaning specified in the preamble to this
Agreement.
"NASD" has the meaning specified in Section 4.2 hereof.
"NUMBER OF SHARES" has the meaning specified in Section
9.1(d)(ii) hereof.
"PERSON" means a natural person, a corporation, a partnership,
a trust, a joint venture, any regulatory authority or any other entity or
organization.
"PRICE PER SHARE" has the meaning specified in Section
9.1(d)(ii) hereof.
"PROCEEDS" has the meaning specified in Section 9.1(d)(ii)
hereof.
"REGISTRATION RIGHTS AGREEMENT" means that certain
Registration Rights Agreement, dated as of the date hereof, which is attached
hereto as Exhibit 1.1.
"RIGHTS" has the meaning specified in Section 9.1(b) hereof.
"TRANSFER AGENT" has the meaning specified in Section 7
hereof.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SETTLEMENT" has the meaning specified in Recital B hereof.
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"SUBSIDIARY" has the meaning specified in Section 9.1(c)
hereof.
"WARRANT" has the meaning specified in Recital B hereof.
"WARRANT CERTIFICATE" has the meaning ascribed to such term in
Section 2.1 hereof.
"WARRANT REGISTER" has the meaning specified in Section 2.2
hereof.
"WARRANT SHARE" has the meaning specified in Recital E hereof.
SECTION 2
FORM OF WARRANT; EXECUTION; REGISTRATION
2.1 FORM OF WARRANT; EXECUTION OF WARRANTS. The
certificates evidencing the Warrants (the "WARRANT CERTIFICATES") shall be in
registered form only and shall be in a form satisfying the requirements of the
New York Stock Exchange. The Warrant Certificates shall be signed on behalf of
the Company by its Chairman of the Board, President or one of its Vice
Presidents. The signature of any such officer on the Warrant Certificates may be
manual or by facsimile. Any 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. Each Warrant Certificate shall be dated the date it is
countersigned by the Warrant Agent pursuant to Section 2.3 hereof.
2.2 REGISTRATION. The Warrant Certificates shall be
numbered and shall be registered on the books of the Company maintained at the
principal office of the Warrant Agent initially in Canton, Massachusetts (or
such other place in the continental United States as the Warrant Agent shall
from time to time notify the Company and the Holders in writing) (the "WARRANT
REGISTER") as they are issued. The Company and the Warrant Agent shall be
entitled to treat the registered owner of any Warrant as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person.
2.3 COUNTERSIGNATURE OF WARRANTS. The Warrant
Certificates shall be countersigned by the Warrant Agent and shall not be valid
for any purpose unless so countersigned. Warrant Certificates may be
countersigned, however, by the Warrant Agent and may be delivered by the Warrant
Agent notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to be such
officers at the time of such countersignature, issuance or delivery. The Warrant
Agent shall, upon written instructions of the Chairman of the Board, the
President, any Vice President, the
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Treasurer or the Secretary of the Company, countersign, issue and deliver
Warrant Certificates entitling the Holders thereof to purchase not more than an
aggregate of 4,631,121 Warrant Shares (subject to adjustment pursuant to Section
9 hereof) and shall countersign, issue and deliver Warrant Certificates as
otherwise provided in this Agreement.
SECTION 3
TRANSFER AND EXCHANGE OF WARRANTS
Subject to the terms hereof, the Warrant Agent shall initially
countersign, register in the Warrant Register and deliver Warrants hereunder in
accordance with the written instructions of the Company. Subject to the terms
hereof and the receipt of such documentation as the Warrant Agent may reasonably
require, the Warrant Agent shall thereafter from time to time register the
transfer of any outstanding Warrants upon the Warrant Register upon surrender of
the Warrant Certificate or Certificates evidencing such Warrants duly endorsed
or accompanied (if so required by it) by a written instrument or instruments of
transfer in form reasonably satisfactory to the Warrant Agent, duly executed by
the registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Subject to the terms of
this Agreement, each Warrant Certificate may be exchanged for another Warrant
Certificate or Certificates entitling the Holder thereof to purchase a like
aggregate number of Warrant Shares as the Warrant Certificate or Certificates
surrendered then entitles such Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Certificates shall make such request in
writing delivered to the Warrant Agent, and shall surrender, duly endorsed or
accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form reasonably satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged. Upon registration of
transfer, the Company shall issue and the Warrant Agent shall countersign and
deliver by certified mail a new Warrant Certificate or Certificates to the
persons entitled thereto.
No service charge shall be made for any exchange or
registration of transfer of a Warrant Certificate or of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp tax
or other tax or other governmental charge that is imposed in connection with any
such exchange or registration of transfer pursuant to Section 5 hereof.
By accepting the initial delivery, transfer or exchange of
Warrants, each Holder shall be deemed to agree to the terms of this Agreement as
it may be in effect from time to time, including any amendments or supplements
duly adopted in accordance with Section 16.3 hereof. A copy of this Agreement
may be obtained by a Holder upon written request to the Company or the Warrant
Agent.
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SECTION 4
TERM OF WARRANTS; EXERCISE OF WARRANTS;
REGISTRATION OF WARRANT SHARES
4.1 TERM OF WARRANTS. Subject to the terms of this
Agreement, each Holder shall have the right, which may be exercised, on any
Business Day, from and after the later of the date the Warrants are issued to
the initial Holders and the Effective Date (as defined below) and until 5:00
p.m., New York City time, on the third anniversary of such later date (the
"EXERCISE PERIOD"), to receive from the Company the number of Warrant Shares
which the Holder may at the time be entitled to receive upon exercise of such
Warrants and payment of the Exercise Price then in effect for such Warrant
Shares, and the Warrant Shares issued to a Holder upon exercise of its Warrants
shall be duly authorized, validly issued, fully paid, nonassessable and shall
not have been issued in violation of or subject to any preemptive rights. Each
Warrant not exercised prior to the expiration of the Exercise Period shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease as of the expiration of the Exercise Period. As used
herein, the term "EFFECTIVE DATE" means the first date on which the Company's
Registration Statement (as defined in Section 4.3 below) is declared effective
by the SEC.
4.2 EXERCISE OF WARRANTS. During the Exercise Period,
except as such may be suspended from time to time as set forth in Section 4.3
hereof, each Holder may, subject to this Agreement, exercise from time to time
some or all of the Warrants evidenced by its Warrant Certificate(s) by (i)
surrendering to the Company at the principal office of the Warrant Agent such
Warrant Certificate(s) with the form of election to purchase on the reverse
thereof duly filled in and signed, which signature shall be guaranteed by a bank
or trust company having an office or correspondent in the United States or a
broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc. (the "NASD"), and (ii) paying
to the Warrant Agent for the account of the Company the aggregate Exercise Price
for the number of Warrant Shares in respect of which such Warrants are
exercised. Warrants shall be deemed exercised on the date such Warrant
Certificate(s) are surrendered to the Warrant Agent and tender of payment of the
aggregate Exercise Price is made. Payment of the aggregate Exercise Price shall
be made in cash by wire transfer of immediately available funds to the Warrant
Agent for the account of the Company or by certified or official bank check or
checks to the order of the Company or by any combination thereof or by such
other form or method of payment acceptable to the Warrant Agent.
Upon the exercise of any Warrants in accordance with this
Agreement, the Company shall cause the Warrant Agent, on the Company's behalf,
to issue and deliver with all reasonable dispatch, to or upon the written order
of the Holder and in such name or names as the Holder may designate, a
certificate or certificates for
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the number of full Warrant Shares issuable upon the exercise of such Warrants
and shall take such other actions or cause the Warrant Agent to take such other
actions at the Company's sole expense as are necessary to complete the exercise
of the Warrants (including, without limitation, payment of any cash with respect
to fractional interests required under Section 10.1 hereof). The certificate or
certificates representing such Warrant Shares shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such Warrant Shares as of the date the Warrants are
exercised hereunder. Each Warrant Share, when issued upon exercise of the
Warrants, shall be duly authorized, validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject to any
preemptive rights.
In the event that less than all of the Warrants evidenced by a
Warrant Certificate are exercised, the Holder thereof shall be entitled to
receive a new Warrant Certificate or Certificates as specified by such Holder
evidencing the remaining Warrant or Warrants, and the Warrant Agent is hereby
irrevocably authorized by the Company to countersign, issue and deliver the
required new Warrant Certificate or Certificates evidencing such remaining
Warrant or Warrants pursuant to the provisions of this Section 4.2 hereof and of
Section 3 hereof. The Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates duly executed on behalf to
the Company for such purpose.
Upon delivery of the Warrant Shares issuable upon exercise in
accordance herewith and of any required new Warrant Certificates, the Company
shall direct the Warrant Agent by written order to cancel the Warrant
Certificates surrendered upon exercise. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner permitted by applicable
laws and satisfactory to the Company in accordance with its written instructions
to the Warrant Agent. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
amounts received by the Warrant Agent upon exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at its office. The Company shall at its sole
expense supply the Warrant Agent from time to time with such numbers of copies
of this Agreement as the Warrant Agent may reasonably request.
4.3 REGISTRATION OF WARRANT SHARES; SUSPENSION OF
EXERCISE PERIOD. The Company covenants that, to the extent required by the
Registration Rights Agreement, it will use its Commercially Reasonable Efforts
to keep a registration statement relating to the issuance of the Warrant Shares
(a "REGISTRATION STATEMENT") effective under the Securities Act, and will make a
prospectus that satisfies all legal requirements (a "QUALIFYING PROSPECTUS")
available to Holders; provided, however, that no shares of Common Stock shall be
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issued, and the exercise of all Warrants shall be suspended, for all periods
during which there is not an effective Registration Statement and/or there is
not a Qualifying Prospectus available to Holders. The Company shall promptly
notify the Warrant Agent of any such suspension, and the Warrant Agent shall
have no duty, responsibility or liability in respect of any shares of Common
Stock issued or delivered prior to its receipt of such notice. The Company shall
promptly notify the Warrant Agent of the termination of any such suspension. The
Company represents and warrants that the issuance of the Warrants is exempt from
registration pursuant to Section 3(a)(10) of the Securities Act and,
accordingly, the Warrants are transferable without registration under the
Securities Act.
SECTION 5
PAYMENT OF TAXES
The Company will pay all documentary stamp and other like
taxes, if any, attributable to the initial issuance and delivery of the Warrants
and the initial issuance and delivery of the Warrant Shares upon the exercise of
Warrants; provided that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer of the Warrants or
involved in the issuance or delivery of any Warrant Shares in a name other than
that of the Holder of the Warrants being exercised, and the Warrant Agent shall
not register any such transfer or issue or deliver any Warrant Certificate(s) or
Warrant Shares unless or until the persons requesting the registration or
issuance shall have paid to the Warrant Agent for the account of the Company the
amount of such tax, if any, or shall have established to the reasonable
satisfaction of the Company that such tax, if any, has been paid.
SECTION 6
MUTILATED OR MISSING WARRANT CERTIFICATES
In the event that any Warrant Certificate shall be mutilated,
lost, stolen or destroyed, the Company shall issue, and at the direction of the
Company by written order the Warrant Agent shall countersign and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and an indemnity or bond, if requested
by the Company or the Warrant Agent, also reasonably satisfactory to them. An
applicant for such a substitute Warrant Certificate shall also comply with such
other reasonable procedures as the Company or the Warrant Agent may reasonably
require.
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SECTION 7
RESERVATION OF WARRANT SHARES
There have been reserved, and the Company shall at all times
keep reserved, out of its authorized Common Stock, free of all preemptive
rights, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding Warrants. The
transfer agent for the Common Stock and every subsequent or other transfer agent
for any shares of the Company's capital stock issuable upon the exercise of the
Warrants (each, a "TRANSFER AGENT") will be and are hereby irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with each Transfer Agent. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from the Company or a
Transfer Agent, as the case may be, the certificate for Warrant Shares required
to honor outstanding Warrants upon exercise thereof in accordance with the terms
of this Agreement. The Company will supply its Transfer Agents with duly
executed stock certificates for such purposes and will itself provide or
otherwise make available any cash which may be payable as provided in Section 10
hereof. The Company will furnish to its Transfer Agents a copy of all notices of
adjustments and certificates related thereto, transmitted to each Holder
pursuant to Section 9.3 hereof. The Company will give the Warrant Agent prompt
notice of any change in any Transfer Agent or any change of address of any
Transfer Agent.
Before taking any action which would cause an adjustment
pursuant to Section 9 reducing the Exercise Price, the Company will take any and
all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
SECTION 8
STOCK EXCHANGE LISTINGS
The Company shall use its Commercially Reasonable Efforts
(including requests for waivers) to have the Warrants listed on the New York
Stock Exchange and failing that included for quotation in The Nasdaq National
Market or listed on the American Stock Exchange, and shall use its Commercially
Reasonable Efforts to maintain such listing or inclusion. In the event the
Warrants do not qualify for such listing or inclusion, the Company will use its
Commercially Reasonable Efforts (including, requests for waivers) to effect such
inclusion or listing whenever the Warrants qualify therefor. Any such listing
and inclusion shall be at the Company's sole expense. In connection with any
such listing or inclusion, the Company shall (i) cause a CUSIP number to be
provided for the Warrants, (ii) file
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with the SEC a registration statement under the Exchange Act with respect to all
such Warrants and (iii) cause such registration statement to be declared
effective and such effectiveness to be maintained for the term of the Warrants.
Assuming that there will be at least 400 holders of the Warrants, the Company
believes that, on the date of their original issuance, the Warrants will meet
the objective criteria for listing on the New York Stock Exchange.
SECTION 9
ADJUSTMENT OF EXERCISE PRICE; NUMBER
OF WARRANT SHARES AND SHARES OF CAPITAL STOCK
INTO WHICH WARRANTS ARE EXERCISABLE
The number and kind of securities purchasable upon the
exercise of each Warrant, and the Exercise Price, shall be subject to adjustment
from time to time upon the happening of certain events, as hereinafter
described.
9.1 MECHANICAL ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Exercise Price shall be
subject to adjustment as follows:
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. Subject to
paragraphs (e) and (g) below, in case the Company shall (i) pay a dividend on
its outstanding shares of Common Stock in shares of Common Stock or make a
distribution of shares of Common Stock on its outstanding shares of Common
Stock, (ii) make a distribution on its outstanding shares of Common Stock in
shares of its capital stock other than Common Stock, (iii) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (iv) combine its outstanding shares of Common Stock into a smaller number
of shares of Common Stock, or (v) issue, by reclassification of its shares of
Common Stock, other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which the
Company is the surviving entity), then the number of Warrant Shares purchasable
upon exercise of each Warrant immediately prior thereto shall be adjusted so
that the Holder of each Warrant shall be entitled to receive the kind and number
of Warrant Shares or other securities of the Company which such Holder would
have owned or have been entitled to receive upon the happening of any of the
events described above had such Warrant been exercised in full immediately prior
to the happening of such event or any record date with respect thereto. If a
Holder is entitled to receive shares of two or more classes of capital stock of
the Company pursuant to the foregoing upon exercise of Warrants, the allocation
of the adjusted Exercise Price between such classes of capital stock shall be
determined reasonably and in good faith by the Board of Directors of the
Company. After such allocation, the exercise privilege and the Exercise Price
with respect to each class of capital stock shall thereafter be subject
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to adjustment on terms substantially identical to those applicable to Common
Stock in this Section 9. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the record date for such event or, if none,
immediately after the effective date of such event. Such adjustment shall be
made successively whenever such an event occurs.
(b) ADJUSTMENT FOR RIGHTS ISSUE. Subject to paragraphs
(e) and (g) below, in case the Company shall issue rights, options or warrants
(collectively, "RIGHTS") to all holders of its outstanding Common Stock
entitling them to subscribe for or purchase shares of Common Stock at a Price
Per Share (as defined in paragraph (d) below) which is lower at the record date
mentioned below than the then Current Market Price (as defined in paragraph (d)
below) per share of Common Stock, the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Warrant Shares theretofore purchasable upon exercise of each
Warrant by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such Rights plus the
additional Number of Shares (as defined in paragraph (d) below) of Common Stock
offered for subscription or purchase in connection with such Rights and the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such Rights plus the number of shares which the
aggregate Proceeds (as defined in paragraph (d) below) received or receivable by
the Company upon exercise of such Rights would purchase at the Current Market
Price per share of Common Stock at such record date. Such adjustment shall be
made whenever Rights are issued, and shall become effective immediately after
the record date for the determination of stockholders entitled to receive
Rights.
(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS. Subject to
paragraphs (e) and (g) below, in case the Company shall distribute to all
holders of its shares of Common Stock (x) evidences of indebtedness or assets
(excluding cash dividends or distributions payable out of the consolidated
earnings or surplus legally available for such dividends or distributions and
dividends or distributions referred to in paragraphs (a) or (b) above) of the
Company or any corporation or other legal entity a majority of the voting equity
or equity interests of which are owned, directly or indirectly, by the Company
(a "SUBSIDIARY"), or (y) shares of capital stock of a Subsidiary (such evidences
of indebtedness, assets and securities as set forth in clauses (x) and (y)
above, collectively, "ASSETS"), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon the
exercise of each Warrant by a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock on the date of such distribution
and the denominator of which shall be such Current Market Price per share of
Common Stock less the fair value as of such record date as determined reasonably
and in good faith by the Board of Directors of the
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Company of the portion of the Assets applicable to one share of Common Stock.
Such adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to the record date for
the determination of stockholders entitled to receive such distribution.
(d) CURRENT MARKET PRICE; PRICE PER SHARE. For the
purpose of any computation hereunder:
(i) the "CURRENT MARKET PRICE" per share of Common Stock at
any date shall be the average of the daily closing prices for the 20 consecutive
trading days preceding the date of such computation. The closing price for each
day shall be (x) if the Common Stock shall be then listed or admitted to trading
on the New York Stock Exchange, the closing price on the NYSE -Consolidated Tape
(or any successor composite tape reporting transactions on the New York Stock
Exchange) or, if such a composite tape shall not be in use or shall not report
transactions in the Common Stock, or if the Common Stock shall be listed on a
stock exchange other than the New York Stock Exchange, the last reported sales
price regular way or, in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such day, in each
case on the principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading (which shall be the national securities
exchange on which the greatest number of shares of the Common Stock have been
traded during such 20 consecutive trading days) or (y) if the Common Stock is
not listed or admitted to trading on a national securities exchange, the average
of the closing bid and asked prices of the Common Stock in the over-the-counter
market as reported by The Nasdaq National Market or any comparable system or, if
the Common Stock is not included for quotation in The Nasdaq National Market or
a comparable system, the average of the closing bid and asked prices as
furnished by two members of the NASD selected reasonably and in good faith from
time to time by the Board of Directors for that purpose. In the absence of one
or more such quotations, the Current Market Price per share of the Common Stock
shall be determined reasonably and in good faith by the Board of Directors of
the Company.
(ii) "PRICE PER SHARE" shall be defined and determined
according to the following formula:
P = R/N
where
P = Price Per Share;
R = the "PROCEEDS" received or receivable by the
Company which (x) in the case of shares of
Common Stock, is the total amount received
or receivable by the Company in
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consideration for the issuance and sale of
such shares; and (y) in the case of Rights
with respect to shares of Common Stock, is
the total amount received or receivable by
the Company in consideration for the
issuance and sale of Rights, plus the
minimum aggregate amount of additional
consideration payable to the Company upon
exercise, conversion or exchange thereof;
provided that in each case the proceeds
received or receivable by the Company shall
be the net cash proceeds after deducting
therefrom any compensation or expenses paid
or discount allowed in the sale,
underwriting or purchase thereof by
underwriters or dealers or others performing
similar services; and
N = the "NUMBER OF SHARES," which (x) in the
case of Common Stock is the number of shares
issued; and (y) in the case of Rights with
respect to shares of Common Stock, is the
maximum number of shares of Common Stock
initially issuable upon exercise, conversion
or exchange thereof.
(e) MINIMUM ADJUSTMENT. No adjustment in the number of
Warrant Shares purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the number
of Warrant Shares purchasable upon the exercise of each Warrant; provided that
any adjustments which by reason of this paragraph (e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-thousandth of a
Warrant Share and the nearest cent.
(f) ADJUSTMENT IN EXERCISE PRICE. Whenever the number of
Warrant Shares purchasable upon the exercise of each Warrant is adjusted as
herein provided, the Exercise Price payable upon exercise of each Warrant
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which shall be the number of
Warrant Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment and the denominator of which shall be the number of Warrant
Shares purchasable immediately thereafter.
(g) WHEN NO ADJUSTMENT REQUIRED. No adjustment in the
number of Warrant Shares purchasable upon the exercise of each Warrant need be
made under this Section 9.1 in connection with: (i) shares of Common Stock,
options, rights, warrants or other securities issued pursuant to any plan
adopted by the Company or its subsidiaries for the benefit of employees or
directors; (ii) shares of Common Stock, options, rights, warrants or other
securities issued pursuant to
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14
any rights issued pursuant to that certain Rights Agreement, dated as of October
22, 1998, between the Company and BankBoston, N.A., as the same may be amended
or supplemented from time to time or pursuant to any successor share purchase
rights plan adopted by the Company; or (iii) sales of Common Stock pursuant to a
plan adopted by the Company for reinvestment of dividends or interest.
Additionally, no adjustment need be made if the Company issues or distributes to
each Holder of Warrants the shares, rights, options, warrants, evidences of
indebtedness, assets or other securities referred to in those paragraphs which
each Holder of Warrants would have been entitled to receive had the Warrants
been exercised for the number of Warrant Shares for which Warrants are then
exercisable prior to the happening of such event or the record date with respect
thereto. No adjustment in the number of Warrant Shares will be made for a change
in the par value of the shares of Common Stock. If any action or transaction
would require an adjustment of the Exercise Price and the number of Warrant
Shares purchasable upon the exercise of each Warrant pursuant to more than one
paragraph of this Section 9, only one adjustment shall be made and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(h) SHARES OF COMMON STOCK. For all purposes of this
Agreement, the term "SHARES OF COMMON STOCK" shall mean (i) the class of stock
designated as the Common Stock of the Company at the date of this Agreement or
(ii) any other class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes in par value, or
from par value to no par value, or from no par value to par value. In the event
that at any time, as a result of an adjustment made pursuant to this Section
9.1, the Holders shall become entitled to purchase any securities of the Company
other than shares of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Exercise Price of such shares
shall be subject to adjustment from time to time in a manner and on terms
substantially identical to the provisions with respect to the Warrant Shares
contained in paragraphs (a) through (g) above, and the provisions of this
Agreement with respect to the Warrant Shares shall apply on like terms to any
such other securities.
(i) EXPIRATION OF RIGHTS, ETC. Upon the expiration of any
Rights or conversion or exchange or exercise rights, if any thereof shall not
have been exercised, the Exercise Price and the number of Warrant Shares
purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been
originally adjusted (or had the original adjustment not been required, as the
case may be) as if (A) the only shares of Common Stock so issued were the shares
of Common Stock, if any, actually issued or sold upon the exercise of such
Rights or conversion or exchange or exercise rights and (B) such shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance,
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15
sale or grant of all of such Rights or conversion or exchange or exercise rights
whether or not exercised; provided that no such readjustment shall have the
effect of increasing the Exercise Price or decreasing the number of Warrant
Shares purchasable upon the exercise of each Warrant by an amount in excess of
the amount of the adjustment initially made in respect of the issuance, sale or
grant of such Rights or conversion or exchange or exercise rights.
9.2 VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may,
at its option and at any time during the term of the Warrants, reduce the then
current Exercise Price to any amount deemed appropriate by the Board of
Directors of the Company.
9.3 NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant or the Exercise Price of
Warrant Shares is adjusted as herein provided, the Company shall cause the
Warrant Agent promptly to mail to each Holder, at the sole expense of the
Company by first class mail, postage prepaid, notice of such adjustment or
adjustments and shall deliver to the Warrant Agent a certificate of a firm of
independent public accountants (who may be the regular accountants employed by
the Company) setting forth the number of Warrant Shares purchasable upon the
exercise of each Warrant and the Exercise Price of Warrant Shares after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth in reasonable detail the computations by which such
adjustment was made. The Warrant Agent shall be entitled to rely on such
certificate and shall be under no duty or responsibility with respect to any
such certificate, except to exhibit the same, from time to time, to any Holder
requesting an inspection thereof during reasonable business hours. The Warrant
Agent shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of the
Exercise Price or the number of Warrant Shares or other stock or property
purchasable on exercise of Warrants, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed in making
such adjustment.
9.4 PRESERVATION OF PURCHASE RIGHTS UPON MERGER OR
CONSOLIDATION. In case of any consolidation of the Company with or merger of the
Company into another entity, the Company or such successor entity shall execute
and deliver to the Warrant Agent an agreement, which shall be binding on the
Holders, that each Holder shall have the right thereafter upon payment of the
Exercise Price in effect immediately prior to such action (after giving effect
to any applicable adjustments under Section 9.1 hereof) to purchase upon
exercise of each Warrant the kind and amount of shares and other securities and
property (including cash) which such Holder would have owned or have been
entitled to receive after the happening of such consolidation or merger had such
Warrant been exercised immediately prior to such action. The Company shall at
its sole expense
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16
mail by first class mail, postage prepaid, to each Holder notice of the
execution of any such agreement. Such agreement shall provide for adjustments,
which shall be substantially identical to the adjustments provided for in this
Section 9. In addition, the Company shall not merge or consolidate with or into
any other entity, unless the successor entity (if not the Company) shall
expressly assume, by supplemental agreement reasonably satisfactory in form and
substance to the Warrant Agent in its sole judgment and executed and delivered
to the Warrant Agent, the due and punctual performance and observance of each
and every covenant and condition of this Agreement to be performed and observed
by the Company. The provisions of this Section 9.4 shall similarly apply to
successive consolidations or mergers.
9.5 STATEMENT ON WARRANTS. Irrespective of any
adjustments in the Exercise Price or the number or kind of shares purchasable
upon the exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same Exercise Price and number and kind of Warrant
Shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
9.6 NO IMPAIRMENT. The Company shall not, for the purpose
of avoiding or seeking to avoid the observance or performance of any of the
terms and provisions of this Agreement, amend its Certificate of Incorporation
or engage in any reclassification, reorganization, consolidation, merger,
dissolution, liquidation, issue, sale or exchange of securities or any other
voluntary action, but will at all times in good faith assist in the
implementation of all such terms and provisions and in the taking of all such
actions as may be necessary or appropriate in order to enable the Holders to
realize the benefits of this Agreement, the Warrant Certificate and the
Registration Rights Agreement.
SECTION 10
FRACTIONAL INTERESTS
Neither the Company nor the Warrant Agent shall be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be exercised at the same time by the same Holder, the number of
full Warrant Shares which shall be issuable upon such exercise shall be computed
on the basis of the aggregate number of Warrants so exercised. If any fraction
of a Warrant Share would, except for the provisions of this Section 10, be
issuable on the exercise of any Warrant, the Company shall pay an amount in cash
equal to the closing price for one share of Common Stock on the date the Warrant
Certificate is presented for exercise (determined in accordance with the second
sentence of Section 9.1(d)(i) hereof), multiplied by such fraction.
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SECTION 11
NO RIGHTS AS STOCKHOLDERS, NOTICES TO HOLDERS
Nothing contained in this Agreement or in any of the Warrants
shall be construed as conferring upon the Holders or their transferees the right
to vote or to receive dividends or to consent or to receive notice as
stockholders in respect of any meeting of stockholders for the election of
directors of the Company or any other matter, or any rights whatsoever as
stockholders of the Company.
In case
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for
or purchase shares of Common Stock or of any other subscription rights
or warrants; or
(b) the Company shall authorize the distribution to all
holders of shares of Common Stock of securities or assets (other than
cash dividends); or
(c) of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of a substantial portion of
the assets of the Company for which approval of any stockholders of the
Company is required, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a change in
par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or a tender
offer or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each Holder at its address appearing on the Warrant Register, at
least twenty (20) days prior to the applicable record date hereinafter
specified, or promptly in the case of events for which there is no record date,
by first class mail, postage prepaid, a written notice stating (i) the date as
of which the holders of record of shares of Common Stock entitled to receive any
such rights, options, warrants or distribution are to be determined, (ii) the
initial expiration date set forth in any tender offer or exchange offer for
shares of Common Stock, or (iii) the date on which any such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, as well as the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation, or winding up. The failure to give the
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notice required by this Section 11 or any defect therein shall not affect the
legality or validity of any distribution, right, option, warrant,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation, winding up or action, or the vote upon any of the foregoing.
SECTION 12
PAYMENTS IN U.S. CURRENCY
All payments required to be made hereunder shall be made in
lawful money of the United States of America.
SECTION 13
MERGER OR CONSOLIDATION OR
CHANGE OF NAME OF WARRANT AGENT
Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporation trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 15 hereof. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall be fully valid and effective as provided therein and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such
cases such Warrant Certificates shall be fully valid and effective as provided
therein and in this Agreement.
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SECTION 14
APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent to act as agent
for the Company hereunder and in accordance with the terms and conditions
hereof, and the Warrant Agent hereby accepts such appointment.
The Warrant Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the Holders, by their acceptance of the Warrant
Certificates, shall be bound:
14.1 CORRECTNESS OF STATEMENTS. The statements contained
herein and in the Warrant Certificates shall be taken as statements of the
Company, and the Warrant Agent assumes no responsibility for the correctness of
any of the same except such as described the Warrant Agent or action taken by
it. The Warrant Agent assumes no responsibility with respect to the distribution
of the Warrant Certificates or Warrants except as herein otherwise provided.
14.2 BREACH OF COVENANTS. The Warrant Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
contained in this Agreement or in the Warrants to be complied with by the
Company.
14.3 PERFORMANCE OF DUTIES. The Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents and shall not
be responsible for the misconduct or negligence of any attorney or agent (which
shall not include an employee of the Warrant Agent) appointed with due care.
14.4 RELIANCE ON COUNSEL. The Warrant Agent may consult at
any time with legal counsel satisfactory to it (who may be counsel for the
Company), and the Warrant Agent shall incur no liability or responsibility to
the Company or to any Holder in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or the advice
of such counsel.
14.5 PROOF OF ACTION TAKEN. Whenever in the performance of
its duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
conclusively to be proved and established by a certificate signed by the
Chairman of the Board, the President, a Vice President, the Treasurer or the
Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
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14.6 COMPENSATION. The Company agrees to pay the Warrant
Agent reasonable compensation for all services rendered by the Warrant Agent in
the performance of its duties under this Agreement, to reimburse the Warrant
Agent for all reasonable expenses, taxes and governmental charges and other
charges of any kind and nature incurred by the Warrant Agent in the performance
of its duties under this Agreement (including but not limited to legal fees and
expenses), and to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and counsel fees, for anything
done or omitted by the Warrant Agent or any of its agents in the performance of
its duties under this Agreement, except as a result of the Warrant Agent's gross
negligence or willful misconduct as determined in a final judgment of a court of
competent jurisdiction and authority. The Company's obligations under this
Section 14.6 and any claim arising hereunder shall survive the resignation or
removal of the Warrant Agent and the termination or discharge of the Company's
obligations under this Agreement.
14.7 LEGAL PROCEEDINGS. The Warrant Agent shall be under
no obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or any one or more
Holders shall furnish the Warrant Agent with reasonable security and indemnity
for any costs and expenses which may be incurred or any liabilities which may
arise, but this provision shall not affect the power of the Warrant Agent to
take such action as the Warrant Agent may consider proper, whether with or
without any such security or indemnity. All rights of action of any Holder under
this Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the Holders, as their respective rights or interests may appear.
14.8 OTHER TRANSACTIONS IN SECURITIES OF THE COMPANY. The
Warrant Agent and any stockholder, director, officer or employee of the Warrant
Agent may buy, sell or deal in any of the Warrants or any other securities of
the Company or become pecuniarily interested in any transaction in which the
Company may be interested or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other Person.
14.9 LIABILITY OF WARRANT AGENT. The Warrant Agent shall
act hereunder solely as agent, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
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14.10 RELIANCE ON DOCUMENTS. The Warrant Agent will not
incur any liability or responsibility to the Company or to any Holder for any
action taken in reliance on any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument reasonably believed by it to
be genuine and to have been signed, sent or presented by the proper party or
parties.
14.11 VALIDITY OF AGREEMENT. The Warrant Agent shall not be
under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Warrant
Agent) or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof) or any Warrant; nor shall the Warrant
Agent by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any Warrant Shares (or other securities)
to be issued pursuant to this Agreement or any Warrant, or as to whether any
Warrant Shares (or other securities) will, when issued, be validly issued, fully
paid and nonassessable, or as to the Exercise Price or the number or amount of
Warrant Shares or other securities or any Assets or other property issuable upon
exercise of any Warrant.
14.12 INSTRUCTIONS FROM COMPANY. The Warrant Agent is
hereby authorized and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of the Board, the
President, a Vice President, the Treasurer or the Secretary of the Company, and
to apply to such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be taken by
it in accordance with instructions of any such officer or officers.
SECTION 15
CHANGE OF WARRANT AGENT
The Warrant Agent may resign and be discharged from its duties
under this Agreement by giving to the Company thirty (30) days' notice in
writing. The Warrant Agent may be removed by like notice to the Warrant Agent
and the Holders from the Company, such notice to specify the date when removal
shall become effective. If the Warrant Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after such removal or notification in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
any Holder (who shall with such notice submit his Warrant Certificate or
Certificates for inspection by the Company), then any Holder may apply to any
court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
such a court, shall be a bank or trust Company, in good standing, incorporated
under the laws of
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the United States of America or any state thereof and having at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
$100,000,000. After appointment and acceptance of such appointment in writing,
the successor Warrant Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
shall execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to file any notice provided for in this
Section 15, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be. In the event of such
resignation or removal, the successor Warrant Agent shall mail, by first class
mail, postage prepaid, to each Holder, written notice of such removal or
resignation and the name and address of such successor Warrant Agent.
SECTION 16
MISCELLANEOUS
16.1 NOTICES. Any notice pursuant to this Agreement by the
Company or by any Holder to the Warrant Agent, or by the Warrant Agent or by any
Holder to the Company, shall be in writing and shall be delivered in person or
by facsimile transmission, or mailed first class, postage prepaid, (a) to the
Company, at its offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: General Counsel, Facsimile No.: (000) 000-0000, or (b) to the Warrant
Agent, at its offices c/o EquiServe at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 Attention: Orbital Account Manager, Facsimile No.: (000) 000-0000. Each
party hereto may from time to time change the address to which notices to it are
to be delivered or mailed hereunder by notice to the other party.
Any notice mailed pursuant to this Agreement by the Company or
the Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses in the Warrant Register. The initial address of each Holder
shall be as provided by the Company to the Warrant Agent. Any Holder may change
its address by notice to the Company and the Warrant Agent given in accordance
with this Section 16.1.
16.2 CANCELLATION OF WARRANTS. In the event the Company
shall purchase or otherwise acquire Warrants, the same shall thereupon be
delivered to the Warrant Agent and be cancelled by it and retired. The Warrant
Agent shall cancel any Warrant Certificate surrendered for exchange,
substitution, transfer or exercise in whole or in part.
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16.3 SUPPLEMENTS AND AMENDMENTS. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement, the
Warrants and the Warrant Certificates without approval of any Holder, in order
to cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
comply with the requirements of any national securities exchange or The Nasdaq
National Market (including but not limited to the deletion of Section 9.2), or
to make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not be inconsistent with the provisions of the Warrants and this
Agreement. Any other supplement or amendment to this Agreement may be made with
the approval of the Holders of a majority of the then outstanding Warrants;
provided, however, that any such amendment or supplement that (i) increases the
Exercise Price; (ii) decreases the number of shares of Common Stock issuable
upon exercise of a Warrant; or (iii) shortens the period during which the
Warrants may be exercised shall require the consent of each Holder of a Warrant
affected thereby.
16.4 SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of the Company or the Warrant Agent and their
respective successors hereunder.
16.5 APPLICABLE LAW. This Agreement, the Warrants, the
rights and obligations of the parties hereto and any claims or disputes relating
thereto shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts (excluding the choice of law rules thereof).
16.6 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give any person or corporation other than the Company, the
Warrant Agent and the Holders any legal or equitable right, remedy or claim
under this Agreement; and this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent, their respective assigns and the
Holders.
16.7 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in multiple counterparts, which, when taken together, shall constitute
an original.
16.8 CAPTIONS. The captions of the sections and
subsections of this Agreement have been inserted for convenience only and shall
have no substantive effect.
* * * * *
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SIGNATURES
IN WITNESS WHEREOF, each of the undersigned have duly caused
this Agreement to be executed on their behalf as of the day and year first above
written.
ORBITAL SCIENCES CORPORATION
By: /s/ Xxxxxxx X. Sunshine
-------------------
Name: Xxxxxxx X. Sunshine
-------------------
Title: Senior Vice President and Treasurer
-----------------------------------
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
------------
Title: Managing Director
-----------------
