Exhibit 4-nn
FORM OF DEBT WARRANT AGREEMENT
FOR WARRANTS SOLD ATTACHED
TO DEBT SECURITIES
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
and
_____________________,
as Warrant Agent
__________________________
DEBT WARRANT AGREEMENT
Dated as of ________________
____________________________
Warrants to Purchase ________
____________________
TABLE OF CONTENTS(1)
PAGE
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 1
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(1) The Table of Contents is not a part of the Agreement.
ARTICLE I
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]
AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants . . . . . . . . . 2
SECTION 1.02. Execution and Delivery
of Warrant Certificates . . . . . . 2
SECTION 1.03. Issuance of Warrant Certificates . . . 4
[SECTION 1.04. Temporary Global Security . . . . . . 5]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price . . . . . . . . . . . . . . . 5
SECTION 2.02. Duration of Warrants. . . . . . . . . . . . 6
SECTION 2.03. Exercise of Warrants. . . . . . . . . . . . 6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates . . . . . . . . . . . . 10
SECTION 3.02. Lost, Mutilated, Stolen or
Destroyed Warrant Certificates . . . 11
SECTION 3.03. Enforcement of Rights . . . . . . . . 11
SECTION 3.04. Merger, Consolidation, Conveyance
or Transfer . . . . . . . . . . . . 12
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer . . . . . . . . 13
SECTION 4.02. Treatment of Holders of
Warrant Certificates . . . . . . . . 14
SECTION 4.03. Cancellation of Warrant
Certificates . . . . . . . . . . . . 15
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent . . . . . . . . . . . . 15
SECTION 5.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . 16
SECTION 5.03. Resignation and Appointment
of Successor . . . . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment . . . . . . . . . . . . . . 20
SECTION 6.02. Notices and Demands to the Company
and Warrant Agent . . . . . . . . . 20
SECTION 6.03. Addresses . . . . . . . . . . . . . . 20
SECTION 6.04. Applicable Law. . . . . . . . . . . . 20
SECTION 6.05. Delivery of Prospectus. . . . . . . . 20
SECTION 6.06. Obtaining of Governmental
Approval. . . . . . . . . . . . . . 20
SECTION 6.07. Persons Having Rights Under
Warrant Agreement . . . . . . . . . 20
SECTION 6.08. Headings. . . . . . . . . . . . . . . 20
SECTION 6.09. Counterparts. . . . . . . . . . . . . 20
SECTION 6.10. Inspection of Agreement . . . . . . . 22
SECTION 6.11. Notices to Holders of Warrants. . . . 22
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . 22
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A - Form of Warrant Certificate
[in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to
the Warrant Agent by the Euro-clear Operator or
CEDEL]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to
Purchasers of Warrant Securities in Bearer Form]
DEBT WARRANT AGREEMENT(2)
THIS AGREEMENT dated as of between XXXXXX XXXXXXX, XXXX
XXXXXX, DISCOVER & CO., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and , a [bank]
[trust company] duly incorporated and existing under the laws of ,
as Warrant Agent (the "Warrant Agent"),
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(2) Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities.
Monetary amounts may be in U.S. dollars in a foreign currency or
in a composite currency, including but not limited to the European
Currency Unit.
Bracketed language here and throughout this Agreement
should be inserted as follows:
1. If Warrants are immediately detachable from the
Offered Securities; and
2. If Warrants are detachable from the Offered
Securities only after the Detachable Date.
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of April
15, 1989 (the "Senior Indenture") between the Company and Chemical Bank, as
Trustee (the "Trustee") and an Indenture dated as of April 15, 1989 (the
"Subordinated Indenture") between the Company and The First National Bank of
Chicago, as Trustee (the "Subordinated Indenture") (collectively, the
"Trustees" or "Trustee" and "Indentures" or "Indenture"), providing for the
issuance from time to time of its unsecured debt securities to be issued in
one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt
securities being offered] (the "Offered Securities") with one or more warrants
(the "Warrants") representing the right to purchase [title of such debt
securities purchasable through exercise of Warrants] (the "Warrant
Securities"), the Warrants to be evidenced by Warrant certificates issued
pursuant to this Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
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 I
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]
AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be
evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase a Warrant Security in the principal amount of and
shall be initially issued in connection with the issuance of the Offered
Securities [1: and shall be separately transferable immediately thereafter]
[2: but shall not be separately transferable until on and after , 19
(the "Detachable Date")]. The Warrants shall be initially issued [in units]
with the Offered Securities, and each Warrant [included in such a unit] shall
evidence the right, subject to the provisions contained herein and in the
Warrant Certificates, to purchase [ ] principal amount of Warrant
Securities [included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant
Security in connection with which the Warrant Certificate is issued],
substantially in the form[s] set forth in Exhibit A [and Exhibit B,
respectively,] hereto, shall be dated and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company
by its chairman or vice chairman of the Board of Directors, the president,
any managing director or the treasurer of the Company, in each case under
its corporate seal, which may but need not be, attested by its Secretary or
one of its Assistant Secretaries [, except that the Global Warrant
Certificate may be executed by any such officer without any necessity that
such signature be under seal as aforesaid]. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The corporate seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the Warrant Agent by manual signature. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence, and the only evidence, that the Warrant
Certificate so countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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 as provided herein, 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", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [2: or, prior to the Detachable Date, any
person in whose name at the time the Offered Security to which such Warrant
Certificate is attached is registered upon the register of the Offered
Securities. Prior to the Detachable Date, the Company will, or will cause the
registrar of the Offered Securities to, make available at all times to the
Warrant Agent such information as to holders of the Offered Securities with
Warrants as may be necessary to keep the Warrant Agent's records up to date.]
[The term "Holder", when used with respect to the Global Warrant
Certificate, shall mean [2:, prior to the Detachable Date, the bearer of the
Temporary Global Security (as defined in Section 1.04) evidencing the Offered
Securities to which the Warrants evidenced by the Global Warrant Certificate
were initially attached and, after the Detachable Date,] the bearer of the
Global Warrant Certificate.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount
not exceeding aggregate principal amount of Warrant Securities (except
as provided in Sections 2.03, 3.02 and 4.01) 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 Warrant Certificates evidencing Warrants representing the
right to purchase up to aggregate principal amount of Warrant
Securities and shall[, in the case of Warrant Certificates in registered
form,] deliver such Warrant Certificates to or upon the order of the Company
[and, in the case of the Global Warrant Certificate, upon the order of the
Company, deposit the Global Warrant Certificate with , as common
depositary (the "Common Depositary") for Xxxxxx Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the accounts of persons appearing from
time to time on the records of the Euro-clear Operator or of CEDEL as being
entitled to any portion thereof. [2: The Temporary Global Security [, as
defined in Section 1.04,] will at the same time be deposited with the Common
Depositary.] [The Global Warrant Certificate shall be held by the Common
Depositary outside the United Kingdom.]] Subsequent to such original issuance
of the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates
or[, with respect to Warrant Certificates in registered form,] in connection
with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03].
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten
or otherwise produced, in each case in form satisfactory to the Warrant
Agent). Such temporary Warrant Certificates shall be issuable substantially
in the form of the definitive Warrant Certificates [in registered form] but
with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by
the Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates [in registered form]. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant
to and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates [in registered form].
[2: SECTION 1.04. Temporary Global Security. Prior to the
Detachable Date, each Offered Security to be issued with Warrants evidenced by
the Global Warrant Certificate shall, whenever issued, be evidenced by a
single temporary global Offered Security in bearer form without interest
coupons (the "Temporary Global Security") to be issued by the Company as
provided in the Indenture.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On , 19 the exercise price
of each Warrant will be . During the period from , 19 through
and including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued
interest] from , 19 . On , 19 the exercise price of each
Warrant will be . During the period from , 19 through and
including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 . [In each case, the original issue discount will be
amortized at a % annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day
months]. Such exercise price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b),
each Warrant may be exercised [in whole but not in part] [in whole or in part]
[at any time, as specified herein, on or after [the date thereof] [ ,
19 ] and at or before [time, location] on , 19 (each day
during such period may hereinafter be referred to as an "Exercise Date")] [on
[list of specific dates] (each, an "Exercise Date")], or such later date as
the Company may designate by notice to the Warrant Agent and the Holders of
Warrant Certificates [in registered form and to the beneficial owners of the
Global Warrant Certificate] (the "Expiration Date"). Each Warrant not
exercised at or before [time, location] on the Expiration Date shall become
void, and all rights of the Holder [and any beneficial owners] of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [During] [With respect to
Warrants evidenced by Warrant Certificates in registered form, during] the
period specified in Section 2.02, any whole number of Warrants may be
exercised by providing certain information as set forth on the reverse side of
the Warrant Certificates evidencing such Warrants and by paying in full [in
lawful money of the United States of America] [in applicable currency] [in
cash] [by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds,] the
Warrant Price for each Warrant exercised (plus accrued interest, if any, on
the Warrant Securities to be issued upon exercise of such Warrant from and
including the Interest Payment Date (as defined in the Indenture), if any, in
respect of such Warrant Securities immediately preceding the Exercise Date to
and including the Exercise Date (unless the Exercise Date is after the Regular
Record Date (as defined in the Indenture), if any, for such Interest Payment
Date, but on or before the immediately succeeding Interest Payment Date for
such Warrant Securities, in which event no such accrued interest shall be
payable in respect of Warrant Securities to be issued in registered form)) to
the Warrant Agent at its corporate trust office at [address] [or at
], provided that such exercise is subject to receipt within five business days
of such [payment] [wire transfer] by the Warrant Agent of the Warrant
Certificate evidencing each Warrant exercised with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant
Certificate, during the period specified in Section 2.02, any whole number of
Warrants may be exercised by the Holder by presentation to the Warrant Agent
at its office at [address located outside the United States [and the United
Kingdom]], at or prior to [time], on any day on which the Warrants are
exercisable, of (i) the Global Warrant Certificate [2: together with, if
prior to the Detachable Date, the Temporary Global Security] (or written
confirmation reasonably satisfactory to the Warrant Agent that the Global
Warrant Certificate [1: is] [2: and, if prior to the Detachable Date, the
Temporary Global Security are] held by the Euro-c1ear Operator and CEDEL and
will be duly endorsed to reflect the exercise of Warrants [2: and, if prior to
the Detachable Date, the surrender to the Warrant Agent of the Offered
Securities to which the Warrants are attached] by the Euro-clear Operator and
CEDEL), (ii) a duly executed certification from the Euro-clear Operator or
CEDEL, as the case may be, substantially in the form set forth in Exhibit C
hereto and (iii) payment in full [in lawful money of the United States of
America] [in applicable currency] [in cash] [by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer]
[in immediately available funds,] of the Warrant Price for each Warrant
exercised (plus accrued interest, if any, on the Warrant Securities to be
issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on
or before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in
respect of Warrant Securities to be issued in registered form)).
Notwithstanding the foregoing, the Holder may exercise Warrants as aforesaid
on the Expiration Date at any time prior to [time] in [city of Warrant Agent's
office]. Any Warrants exercised as set forth in this paragraph shall be
deemed exercised at the [country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to
the instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or
CEDEL of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit
D hereto has or have been delivered to the Euro-clear Operator or CEDEL, as the
case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to
exercise the Warrants shall expire or be earlier cancelled as hereinafter
provided, an agency where the Global Warrant Certificate [2: and, if prior to
the Detachable Date, the Temporary Global Security] may be presented for
exercise of the Warrants represented thereby [2: and, if prior to the
Detachable Date, for surrender for cancellation of the Offered Securities to
which such Warrants are attached] and notices and demands to or upon the
Company in respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any
such accrued interest) is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate [in registered form or, as the case may be,
the Global Warrant Certificate [2: and, if required, the Temporary Global
Security] and the certification of Euro-clear Operator or CEDEL] as aforesaid,
be deemed to be the date on which the Warrant is exercised. The Warrant Agent
shall deposit all funds received by it in payment for the exercise of Warrants
in an account of the Company maintained with it (or in such other account as
may be designated by the Company) and shall advise the Company, by telephone
or by facsimile transmission or other form of electronic communication
available to both parties, 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 advice to the Company in
writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common
Depositary at [both] its London and [location] office[s]] in writing [(which,
in the case of exercised Warrants represented by the Global Warrant
Certificate, shall be tested telex with appropriate answerback received,)] of
(i) the number of Warrants exercised, (ii) the instructions of each Holder of
the Warrant Certificates [in registered form] evidencing such Warrants [or of
the Euro-clear Operator or CEDEL, as the case may be,] with respect to
delivery of the Warrant Securities to be issued upon such exercise, (iii)
delivery of any Warrant Certificates [in registered form] evidencing the
balance, if any, of the Warrants remaining after such exercise, and (iv) such
other information as the Company or the Trustee shall reasonably require. [In
addition, in the case of exercised Warrants evidenced by the Global Warrant
Certificate, the Warrant Agent shall, as promptly as practicable, endorse, or
cause the Common Depositary, [location] office, or one of the Warrant Agent's
agents to endorse, Schedule A annexed to the Global Warrant Certificate to
reflect the exercise of such Warrants [2: and the Temporary Global Security to
reflect the surrender for cancellation of the Offered Securities to which such
Warrants are attached] and, if applicable, return the Global Warrant
Certificate [2: and the Temporary Global Security] to the Common Depositary or
to its order.]
As soon as practicable after the exercise of any Warrant [evidenced
by a Warrant Certificate in registered form], but subject to receipt by the
Warrant Agent of the Warrant Certificate evidencing such Warrant as provided
in this Section, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the Holder of the Warrant
Certificate evidencing each Warrant, the Warrant 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 [in registered form]
evidencing the number of such Warrants remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced
by the Global Warrant Certificate, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names
as may be directed by the Euro-clear Operator or CEDEL, as the case may be,
to or upon order of the Euro-clear Operator or CEDEL, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euro-clear Operator or CEDEL, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however,
that no Warrant Security in bearer form shall be mailed or otherwise delivered
to any location in the United States of America, its territories or
possessions or areas subject to its jurisdiction or the Commonwealth of Puerto
Rico.]
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 issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security 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.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including,
without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Securities or to enforce any of the
covenants in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, 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,
mutilation, theft or destruction of any Warrant Certificate and of such
security or indemnity as may be required by the Company and the Warrant Agent
to hold each of them and any agent of them harmless and, in the case of
mutilation of a Warrant Certificate, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of
the lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants[;
provided, however, that any Global Warrant Certificate shall be so delivered
only to the Common Depositary.] Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu
of any lost, mutilated, stolen or destroyed Warrant Certificate shall
represent an additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of lost, mutilated, stolen or
destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate [in
registered form or the beneficial owner of any Warrant evidenced by the Global
Warrant Certificate], without the consent of [the Common Depositary,] the
Warrant Agent, the Trustee, the holder of any Offered Securities or the Holder
of any other Warrant Certificate, may, in its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect
of, its right to exercise its Warrants in the manner provided in its Warrant
Certificate [or the Global Warrant Certificate, as the case may be,] and in
this Agreement. [Neither the Company nor the Warrant Agent shall be required
to treat any person as a beneficial owner of any Warrant evidenced by the
Global Warrant Certificate unless such person is so certified as such a
beneficial owner by the Euro-clear Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a)
If at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted
for the Company, with the same effect, subject to the Indenture, as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon, except in the case of a transfer by way of lease, be relieved
of any further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
may thereupon cause to be signed, and may issue either in its own name or in
the name of the Company, Warrant Certificates evidencing any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name
pursuant to the Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit under
this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any
such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal
counsel (who shall be acceptable to the Warrant Agent) as conclusive evidence
that any such merger, consolidation, conveyance or transfer complies with the
provisions of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate [in registered form] may be exchanged
or transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Security. Prior
to the Detachable Date, the transfer of the beneficial ownership of any
Warrant evidenced by the Global Warrant Certificate shall effect and shall be
deemed to effect the transfer of the beneficial ownership of any Offered
Securities evidenced by the Temporary Global Security that are attached to
such Warrants. Prior to any Detachable Date, each transfer of the Offered
Security [on the register maintained with respect to the Offered Securities,
in the case of an Offered Security that is in registered form], shall operate
a1so to transfer the related Warrant Certificates. Similarly, prior to the
Detachable Date, the transfer of the beneficial ownership of any Offered
Security evidenced by the Temporary Global Security shall be deemed to be the
transfer of the beneficial ownership of any Warrants evidenced by the Global
Warrant Certificate that are attached to such Offered Securities. The
transfer of the beneficial ownership of Warrants and Warrant Securities
hereunder shall be effected only as provided in Section 4.01. On or after the
Detachable Date, upon] surrender at the corporate trust office of the Warrant
Agent at [address] [or ], Warrant Certificates [in registered form]
evidencing Warrants may be exchanged for Warrant Certificates [in registered
form] in other authorized denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided, however,
that such other Warrant Certificates shall evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant
Certificates [in registered form] upon surrender of such Warrant Certificates
to the Warrant Agent at its corporate trust office at [address] or [ ]
for exchange or registration of transfer, properly endorsed [or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates [in registered form], 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.
(d) Whenever any Warrant Certificates [in registered form], 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 [in
registered form], duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate [in
registered form], evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant.
(e) All Warrant Certificates [in registered form], 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
Certificates surrendered for such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
respect to the Global Warrant Certificate, the Holder thereof may be treated
by the Company, the Warrant Agent and all other persons dealing with such
Holder 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.] [Each] [With respect to Warrant
Certificates in registered form, each] Holder of a Warrant Certificate, by
accepting the same, consents and agrees with the Company, the Warrant Agent
and every subsequent Holder of such Warrant Certificate that until the
transfer of such Warrant Certificate is registered on the books of such
Warrant Agent [2: or, prior to the Detachable Date, until the transfer of the
Offered Security to which such Warrant Certificate is attached, is registered
in the register of the Offered Securities], the Company and the Warrant Agent
may treat the registered Holder of such 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.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any
Warrant Certificate surrendered for exchange or 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 cancelled
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 1ieu thereof. The Warrant Agent shall cause all
cancelled Warrant Certificates to be destroyed and shall deliver a certificate
of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem
[2: prior to the Detachable Date] [, as a whole but not in part,] [2: the
Offered Securities [or] [and]] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice
to the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of [2: the Offered Securities [or]
[and]] the Warrant Securities pursuant to the Indenture or the terms thereof.
The unexercised Warrants, the Warrant Certificates and the rights evidenced
thereby shall be cancelled and become void on the 15th day prior to such date
fixed for redemption.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. 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 and in the
Warrant Certificates 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 herein and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable attorneys' fees) incurred by the Warrant Agent without
negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it in its reasonable judgment, and the advice of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Warrant Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and
delivery hereof by the Warrant Agent) or with respect to the validity or
execution of any Warrant Certificates (except its countersignature
thereof).
(h) No Liability for Recitals. The recitals contained herein
shall be taken as the statements of the Company and the Warrant Agent
assumes no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation
to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates countersigned 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 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf
of the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant
Agent. Upon its resignation or removal, the Warrant Agent shall be entitled
to the payment by the Company of the compensation and to the reimbursement of
all reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by it of such appointment, the predecessor Warrant Agent shall,
if not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, 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 affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. 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 Xxxxxx Xxxxxxx,
Xxxx Xxxxxx, Discover & Co., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: (or such Other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or adequacy of
such Prospectus.
SECTION 6.O6. Obtaining of Governmental Approval. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including without limitation a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement.
[Except as otherwise provided in Section 3.03, nothing] [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.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 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.
SECTION 6.11. Notices to Holders of Warrants. Any notice to
Holders of Warrants evidenced by Warrant Certificates [in registered form]
which by any provisions of this Warrant Agreement is required or permitted to
be given shall be given by first class mail prepaid at such Holder's address
as it appears on the books of the Warrant Agent. [Any notice to beneficial
owners of Warrants evidenced by the Global Warrant Certificate which by any
provisions of this Warrant Agreement is required or permitted to be given
shall be given in the manner provided with respect to Warrant Securities in
bearer form in Section 1.06 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
By________________________
[SEAL] Name:
Title:
Attest:
_______________________
Name:
Title:
[WARRANT AGENT]
By________________________
[SEAL] Name:
Title:
Attest:
_______________________
Name:
Title:
