AUTOWEB, INC. and ___________, as Warrant Agent Form of Debt Securities Warrant Agreement Dated As Of ___________ AUTOWEB, INC. FORM OF DEBT SECURITIES WARRANT AGREEMENT
Exhibit 4.7
and
___________, as Warrant Agent
Form of Debt Securities
Dated As Of ___________
FORM
OF DEBT SECURITIES WARRANT AGREEMENT
THIS DEBT SECURITIES WARRANT AGREEMENT
(this "Agreement"), dated
as of [●], between AUTOWEB, 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
will be issued in connection with the issuance of the Other
Securities but shall 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 Warrants — Warrant Certificates will be issued
with the Other Securities and each Warrant Certificate will
evidence [●] Warrants for each [$[●] principal amount]
[[●] shares] of Other Securities issued.]
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.
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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 such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The
term "holder" or
"holder of a Warrant
Certificate" as used herein shall mean any person in whose
name at the time any Warrant Certificate shall be registered upon
the books to be maintained by the Warrant Agent for that
purpose.
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 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.
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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 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.
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 are
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.
(c) 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.
(d) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the
exercise of the Warrants.
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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.
Holder Of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent,
the [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.
3.3 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 "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.
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3.4 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
Exchange And Transfer Of Warrant Certificates. 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 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.
4.1 Treatment
Of Holders Of Warrant Certificates. 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.
4.2 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 powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
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:
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.
(a) 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.
(b) 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.
(c) 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.
(d) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Debt 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.
(e) 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.
(f) 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).
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(g) 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.
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
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.
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(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.
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.
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
AutoWeb, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000, Attention: [●] (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.
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-8-
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.
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-9-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above
written.
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AUTOWEB, INC., as
Company
_______________________________
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By:
___________________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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COUNTERSIGNED
[●], as
Warrant Agent
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By:
_______________________________
Name: _______________________________
Title:
________________________________
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ATTEST: _______________________________
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_______________________________
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[SIGNATURE
PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
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-10-
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●] Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT
AS
PROVIDED HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
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-11-
WARRANT
CERTIFICATE REPRESENTING
WARRANTS
TO PURCHASE
[TITLE
OF WARRANT DEBT SECURITIES]
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No.
[●]
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[●]
Warrants
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This
certifies that [●] or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after [●]
p.m., [City] time, [on [●] and] on or before [●] p.m.,
[City] time, on, $[●] principal amount of [Title of Warrant
Debt Securities] (the "Warrant Debt
Securities") of AutoWeb, Inc. (the "Company") issued or
to be issued under the Indenture (as hereinafter defined), on the
following basis: during the period from [●], through and
including [●], each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase the
principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the warrant price (the "Warrant Price") of
[●]% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant
Debt Securities] [plus accrued interest, if any, from the most
recent date from which interest shall have been paid on the Warrant
Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from the date of their original issuance].
[The original issue discount ($[●] 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 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 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 [Senior][Subordinated] Trustee.
Transfer of this
Warrant Certificate may be 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.
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.
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-12-
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:
___________________________
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AUTOWEB, INC., as
Company
_______________________________
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By:
___________________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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COUNTERSIGNED
[●], as
Warrant Agent
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By:
_______________________________
Name: _______________________________
Title:
________________________________
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ATTEST: _______________________________
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_______________________________
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-13-
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
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 [●] [address of Warrant Agent],
Attention: [●], 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 AutoWeb, 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 AutoWeb,
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.
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Dated:
____________________________
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Name:
____________________________
Please
Print
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Address:
________________________________
(Insert
Social Security or Other Identifying Number of Holder)
Signature
Guaranteed: ____________________________
Signature
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
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-14-
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.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
FOR VALUE RECEIVED, [●] hereby
sells, assigns and transfers unto:
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_______________________________
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_______________________________
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(Please print name
and address including zip code)
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(Please print
Social Security or other identifying number)
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the
right represented by the within Warrant to purchase $[●]
aggregate principal amount of shares [Title of Warrant Debt
Securities] of AutoWeb, 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.
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Dated:
____________________________
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_____________________________
Signature
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(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant)
Signature
Guaranteed
________________________________
Signature
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-15-
