Exhibit 4-cc
FORM OF DEBT WARRANT AGREEMENT
FOR WARRANTS SOLD ATTACHED
TO DEBT SECURITIES
XXXXXX XXXXXXX XXXX XXXXXX & CO.
and
---------------------,
as Warrant Agent
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DEBT WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
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 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price............................................... 5
SECTION 2.02. Duration of Warrants........................................ 5
SECTION 2.03. Exercise of Warrants........................................ 6
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.......................... 9
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.. 10
SECTION 3.03. Enforcement of Rights....................................... 10
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer............... 11
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer....................................... 11
SECTION 4.02. Treatment of Holders of Warrant Certificates................ 13
SECTION 4.03. Cancellation of Warrant Certificates........................ 13
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1 The Table of Contents is not a part of the Agreement.
PAGE
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent............................................... 14
SECTION 5.02. Conditions of Warrant Agent's Obligations................... 14
SECTION 5.03. Resignation and Appointment of Successor.................... 16
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment................................................... 18
SECTION 6.02. Notices and Demands to the Company and Warrant Agent........ 19
SECTION 6.03. Addresses................................................... 19
SECTION 6.04. Applicable Law.............................................. 19
SECTION 6.05. Delivery of Prospectus...................................... 19
SECTION 6.06. Obtaining of Governmental Approval.......................... 19
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..................................... 20
SECTION 6.11. Notices to Holders of Warrants.............................. 20
TESTIMONIUM................................................................ 21
SIGNATURES................................................................. 21
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
Euroclear Operator or Cedelbank]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers of Warrant
Securities in Bearer Form]
ii
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of between XXXXXX XXXXXXX XXXX XXXXXX & 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"),
W I T N E S S E T H :
WHEREAS, the Company has entered into an Amended and Restated Senior
Indenture dated as of May 1, 1999 (the "Senior Indenture") between the Company
and The Chase Manhattan Bank, as Trustee (the "Trustee") and an Amended and
Restated Subordinated Indenture dated as of May 1, 1999 (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;
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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.
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 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
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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
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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 Euroclear
System (the "Euroclear Operator"), and for Cedelbank ("Cedelbank") for credit
to the accounts of persons appearing from time to time on the records of the
Euroclear Operator or of Cedelbank 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
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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 2
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,
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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 Cedelbank 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
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Euroclear Operator and Cedelbank), (ii) a duly executed certification
from the Euroclear Operator or Cedelbank, 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 Euroclear Operator or Cedelbank 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 Euroclear Operator or
Cedelbank 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 Euroclear Operator or Cedelbank, 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
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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 Euroclear Operator or Cedelbank] 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 Euroclear
Operator or Cedelbank, 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
8
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 Euroclear Operator or Cedelbank, as the case may be, to
or upon order of the Euroclear Operator or Cedelbank, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Cedelbank, 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 3
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
9
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
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Warrant evidenced by the Global Warrant Certificate unless such person
is so certified as such a beneficial owner by the Euroclear Operator or
Cedelbank.]
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 4
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
11
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
12
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,
13
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 5
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
14
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
15
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
16
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.
17
(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 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) 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.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the
then outstanding Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Warrants of any series,
reduces the amount receivable upon exercise, cancellation or expiration of the
Warrants other than in accordance with the antidilution provisions or other
similar adjustment provisions included in the terms of the Warrants, shortens
the period of time during which the Warrants of such series may be exercised,
or otherwise materially and adversely affects the exercise rights of the
affected Warrantholders or reduces the percentage of the number of outstanding
Warrants of such series, the consent of whose holders is required for
modification or amendment of this Agreement, may be made without the consent
of each Warrantholder affected thereby. In the case of Warrants evidenced by
one or more Global Warrant Certificates, the Company and the Warrant Agent
shall be entitled to rely upon certification in form satisfactory to each of
them that any requisite consent has been obtained from holders of beneficial
ownership interests in the relevant
18
Global Warrant Certificate. Such certification may be provided by
participants of the Depositary acting on behalf of such beneficial owners of
Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
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 & Co., 0000 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 6.06. 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
19
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].
20
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 & CO.
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
[WARRANT AGENT]
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
21
