Exhibit 4.22
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POLAROID CORPORATION
and
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Debt Warrant Agent
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[SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT*
Dated as of
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* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN
SHALL BE DETERMINED IN CONFORMITY WITH APPLICABLE PROSPECTUS
SUPPLEMENT OR SUPPLEMENTS
TABLE OF CONTENTS **
PAGE
PARTIES...........................................................................................................1
RECITALS..........................................................................................................1
ARTICLE I ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES...........................................................................-1-
Section 1.01 Issuance of Debt Warrants................................................................-1-
Section 1.02 Form and Execution of Debt Warrant Certificates..........................................-2-
Section 1.03 Issuance and Delivery of Debt Warrant Certificates.......................................-3-
Section 1.04 Temporary Debt Warrant Certificates......................................................-3-
Section 1.05 Payment of Certain Taxes.................................................................-4-
Section 1.06 "Holder".................................................................................-4-
ARTICLE II DURATION AND EXERCISE OF DEBT WARRANTS..............................................................-4-
Section 2.01 Duration of Debt Warrants................................................................-4-
Section 2.02 Exercise of Debt Warrants................................................................-5-
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS.......................................................................................-6-
Section 3.01 No Rights as Holder of Underlying Debt Securities Conferred by Debt
Warrants or Debt Warrant Certificates.........................................................-6-
Section 3.02 Lost, Stolen, Destroyed or Mutilated Debt Warrant Certificates...........................-6-
Section 3.03 Holder of Debt Warrants May Enforce Rights...............................................-6-
ARTICLE IV EXCHANGE AND TRANSFER OF DEBT WARRANTS..............................................................-7-
[Section 4.01 Debt Warrant Register; Exchange and Transfer of Debt Warrants...........................-7-
Section 4.02 Treatment of Holders of Debt Warrants....................................................-8-
Section 4.03 Cancellation of Debt Warrant Certificates................................................-8-
ARTICLE V CONCERNING THE DEBT WARRANT AGENT....................................................................-8-
Section 5.01 Debt Warrant Agent.......................................................................-8-
Section 5.02 Conditions of Debt Warrant Agent's Obligations...........................................-9-
Section 5.03 Resignation and Removal; Appointment of Successor.......................................-11-
Section 5.04 Compliance With Applicable Laws.........................................................-12-
Section 5.05 Office..................................................................................-13-
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** The Table of Contents is not part of the Debt Warrant Agreement.
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ARTICLE VI MISCELLANEOUS......................................................................................-13-
Section 6.01 Consolidation or Merger of the Company and Conveyance or Transfer
Permitted Subject to Certain Conditions......................................................-13-
Section 6.02 Rights and Duties of Successor Corporation..............................................-13-
Section 6.03 Supplements and Amendments..............................................................-13-
Section 6.04 Notices and Demands to the Company and Debt Warrant Agent...............................-14-
Section 6.05 Addresses...............................................................................-14-
Section 6/06 Applicable Law..........................................................................-14-
Section 6.07 Delivery of Prospectus..................................................................-14-
Section 6.08 Governmental Approvals..................................................................-14-
Section 6.09 Persons Having Rights under Debt Warrant Agreement......................................-15-
Section 6.10 Headings................................................................................-15-
Section 6.11 Counterparts............................................................................-15-
Section 6.12 Inspection of Agreement.................................................................-15-
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THIS [SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT, dated as of
__________, between Polaroid Corporation, a Delaware corporation (the
"Company"), and ____________________, a __________ organized and existing under
the laws of __________, as warrant agent (the "Debt Warrant Agent").
WHEREAS, the Company and _____________________ has entered into an
Indenture dated as of January 9, 1997 (the "Indenture") with State Street Bank
and Trust Company, as trustee (the "Trustee"), providing for the issuance by the
Company from time to time, in one or more series, of debt securities evidencing
its unsecured, ________________ indebtedness (such debt securities, being
referred to as the "Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt Warrants")
representing the right to purchase Debt Securities of one or more series (the
"Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and delivery of
this Debt Warrant Agreement to provide for the issuance of Debt Warrants to be
exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
Section 1.01. ISSUANCE OF DEBT WARRANTS. Debt Warrants may be issued
from time to time, together with or separately from any Securities (the "Offered
Debt Securities"). Prior to the issuance of any Debt Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
a) the title and aggregate number of such Debt Warrants;
b) the offering price of such Debt Warrants, if any;
c) whether such Debt Warrants are to be issued with any
Offered Debt Securities and, if so, the title, aggregate principal amount and
terms of any such Offered Debt Securities; the number of Debt Warrants to be
issued with each $1,000 principal amount of such Offered Debt Securities (or
such other principal amount of such Offered Debt Securities as is provided for
in the Board Resolution); and the date, if any, on and after which such Debt
Warrants and such Offered Debt Securities will be separately transferable (the
"Detachable Date");
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d) the title, aggregate principal amount, ranking and terms
(including the subordination and conversion provisions) of the Underlying Debt
Securities that may be purchased upon exercise of such Debt Warrants;
e) the time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the minimum or maximum amount of
Debt Warrants which may be exercised at any one time and the final date on which
such Debt Warrants may be exercised (the "Expiration Date");
f) the principal amount of Underlying Debt Securities that may
be purchased upon exercise of each Debt Warrant and the price, or the manner of
determining the price (the "Debt Warrant Price"), at which such principal amount
may be purchased upon such exercise;
g) the terms of any right to redeem or call such Debt
Warrants; and
h) any other terms of such Debt Warrants not inconsistent with
the provisions of this Agreement.
Section 1.02 FORM AND EXECUTION OF DEBT WARRANT CERTIFICATES.
a) The Debt Warrants shall be evidenced by warrant
certificates (the "Debt Warrant Certificates"), which may be in registered or
bearer form and otherwise shall be substantially in such form or forms as shall
be established by or pursuant to a Board Resolution. Each Debt Warrant
Certificate, whenever issued, shall be dated the date it is countersigned by the
Debt Warrant Agent and may have such letters, numbers or other identifying marks
and such legends or endorsements printed, lithographed or engraved thereon as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law, rule or regulation or with any rule
or regulation of any securities exchange on which the Debt Warrants may be
listed, or to conform to usage, as the officer of the Company executing the same
may approve (such officer's execution thereof to be conclusive evidence of such
approval). Each Debt Warrant Certificate shall evidence one or more Debt
Warrants.
b) The Debt Warrant Certificates shall be signed in the name
and on behalf of the Company by its Chairman of the Board of Directors, its
President, an Executive Vice President, any Vice President, the Treasurer or any
Assistant Treasurer and by its Secretary or any Assistant Secretary. Such
signatures may be manual or facsimile signatures of the present or any future
holder of any such office and may be imprinted or otherwise reproduced on the
Debt Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Warrant Certificates.
c) No Debt Warrant Certificate shall be valid for any purpose,
and no Debt Warrant evidenced thereby shall be deemed issued or exercisable,
until such Debt Warrant Certificate has been countersigned by the manual or
facsimile signature of the Debt Warrant
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Agent. Such signature by the Debt Warrant Agent upon any Debt Warrant
Certificate executed by the Company shall be conclusive evidence that the Debt
Warrant Certificate so countersigned has been duly issued hereunder.
d) In case any officer of the Company who shall have signed
any Debt Warrant Certificate either manually or by facsimile signature shall
cease to be such officer before the Debt Warrant Certificate so signed shall
have been countersigned and delivered by the Debt Warrant Agent, such Debt
Warrant Certificate nevertheless may be countersigned and delivered as though
the person who signed such Debt Warrant Certificate had not ceased to be such
officer of the Company; and any Debt Warrant Certificate may be signed on behalf
of the Company by such person as, at the actual date of the execution of such
Debt Warrant Certificate, shall be the proper officer of the Company, although
at the date of the execution of this Agreement such person was not such an
officer.
Section 1.03 ISSUANCE AND DELIVERY OF DEBT WARRANT CERTIFICATES. At any
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Debt Warrant Certificates executed by the Company to the
Debt Warrant Agent for countersignature. Except as provided in the following
sentence, the Debt Warrant Agent shall thereupon and deliver such Debt Warrant
Certificates to or upon the written request of the Company. Subsequent to the
original issuance of a Debt Warrant Certificate evidencing Debt Warrants, the
Debt Warrant Agent shall countersign a new Debt Warrant Certificate evidencing
such Debt Warrants only if such Debt Warrant Certificate is issued in exchange
or substitution for one or more previously countersigned Debt Warrant
Certificates evidencing such Debt Warrants or in connection with their transfer,
as hereinafter provided.
Section 1.04 TEMPORARY DEBT WARRANT CERTIFICATES. Pending the
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall countersign and
deliver, temporary Debt Warrant Certificates that are printed, lithographed,
typewritten, mimeographed or otherwise produced, substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine, as
evidenced by such officer's execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company
will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent or
__________, without charge to the Holder, as defined in Section 1.06 hereof.
Upon surrender for cancellation of any one or more temporary Debt Warrant
Certificates, the Company shall execute and the Debt Warrant Agent shall
countersign and deliver in exchange therefor definitive Debt Warrant
Certificates representing the same aggregate number of Debt Warrants. Until so
exchanged, the
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temporary Debt Warrant Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Debt Warrant Certificates.
Section 1.05 PAYMENT OF CERTAIN TAXES. The Company will pay all stamp
and other duties, if any, to which this Agreement or the original issuance of
the Debt Warrants or Debt Warrant Certificates may be subject under the laws of
the United States of America or any state or locality.
Section 1.06 "HOLDER". The term "Holder" or "Holders", as used herein
with reference to a Debt Warrant Certificate, shall mean [if registered Debt
Warrants the person or persons in whose name such Debt Warrant Certificate shall
then be registered as set forth in the Debt Warrant Register to be maintained by
the Debt Warrant Agent pursuant to Section 4.01 for that purpose] [if bearer
Debt Warrants - the bearer of such Debt Warrant Certificate] or, in the case of
Debt Warrants that are issued with Offered Debt Securities and cannot then be
transferred separately therefrom, [if registered Offered Debt Securities and
Debt Warrants that are not then detachable - the person or persons in whose name
the related Offered Debt Securities shall be registered as set forth in the
security register to be maintained by the Trustee for such Offered Debt
Securities pursuant to the Indenture] [if bearer Offered Debt Securities and
Debt Warrants that are not then detachable - the bearer of the related Offered
Debt Security], prior to the Detachable Date. [If registered Offered Debt
Securities and Debt Warrants that are not then detachable - The Company will, or
will cause the security registrar of any such Offered Debt Securities to, make
available to the Debt Warrant Agent at all times (including on and after the
Detachable Date, in the case of Debt Warrants originally issued with Offered
Debt Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Debt Securities with Debt Warrants as may
be necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01 DURATION OF DEBT WARRANTS. Each Debt Warrant may be
exercised at the time or times, or during the period or periods, provided by or
pursuant to the Board Resolution relating thereto and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Each Debt Warrant not
exercised at or before 5:00 P.M., New York City time, on its Expiration Date
shall become void, and all rights of the Holder of such Debt Warrant thereunder
and under this Agreement shall cease, provided that the Company reserves the
right to, and may, in its sole discretion, at any time and from time to time, at
such time or times as the Company so determines, extend the Expiration Date of
the Warrants for such periods of time as it chooses. Whenever the Expiration
Date of the Debt Warrants is so extended, the Company shall at least [20] days
prior to the then Expiration Date cause to be mailed to the Debt Warrant Agent
and the registered Holders of the Debt Warrants in accordance with the
provisions of Section 6.04 hereof a notice stating that the Expiration Date has
been extended and setting forth the new Expiration Date.
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Section 2.02 EXERCISE OF DEBT WARRANTS. a) The Holder of a Debt Warrant
shall have the right, at its option, to exercise such Debt Warrant and, subject
to subsection (f) of this Section 2.02, purchase the principal amount of
Underlying Debt Securities provided for therein at the time or times or during
the period or periods referred to in Section 2.01 and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Except as may be provided in a
Debt Warrant Certificate, a Debt Warrant may be exercised by completing the form
of election to purchase set forth on the reverse side of the Debt Warrant
Certificate, by duly executing and delivering the same, together with payment in
full of the Debt Warrant Price in lawful money of the United States of America,
in cash or by certified or official bank check or by bank wire transfer, to the
Debt Warrant Agent. Except as may be provided in a Debt Warrant Certificate, the
date on which such Debt Warrant Certificate and payment are received by the Debt
Warrant Agent as aforesaid shall be deemed to be the date on which the Debt
Warrant is exercised and the Underlying Debt Securities are issued.
b) Upon the exercise of a Debt Warrant, the Company shall
issue, pursuant to the Indenture, in authorized denominations to or upon the
order of the Holder of such Debt Warrant, the Underlying Debt Securities to
which such Holder is entitled, in the form required under such Indenture,
registered, in the case of Underlying Debt Securities in registered form, in
such name or names as may be directed by such Holder.
c) If fewer than all of the Debt Warrants evidenced by a Debt
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Debt Warrant Agent shall countersign and deliver, a new Debt
Warrant Certificate evidencing the number of Debt Warrants remaining
unexercised.
d) The Debt Warrant Agent shall deposit all funds received by
it in payment of the Debt Warrant Price in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Debt Warrant Price for
Debt Warrants is received of the amount so deposited in its account. The Debt
Warrant Agent shall promptly confirm such telephone advice in writing to the
Company.
e) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the number of
Debt Warrants of each title exercised as provided herein, (ii) the instructions
of each Holder with respect to delivery of the Underlying Debt Securities to
which such Holder is entitled upon such exercise, (iii) the delivery of Debt
Warrant Certificates evidencing the balance, if any, of the Debt Warrants
remaining unexercised after such exercise, and (iv) such other information as
the Company or the Trustee shall reasonably require. Such notice may be given by
telephone to be promptly confirmed in writing.
f) The Holder, and not the Company, shall be required to pay
any stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the Underlying Debt
Securities; and in the event that any such transfer is
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involved, the Company shall not be required to issue any Underlying Debt
Securities (and the Holder's purchase of the Underlying Debt Securities upon the
exercise of such Holder's Debt Warrant shall not be deemed to have been
consummated) 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 DEBT WARRANTS
Section 3.01 NO RIGHTS AS HOLDER OF UNDERLYING DEBT SECURITIES
CONFERRED BY DEBT WARRANTS OR DEBT WARRANT CERTIFICATES. No Debt Warrant or Debt
Warrant Certificate shall entitle the Holder to any of the rights of a holder of
Underlying Debt Securities, including, without limitation, the right to receive
the payment of principal of (or premium, if any, on) or interest, if any, on
Underlying Debt Securities or to enforce any of the covenants in the Indenture.
Section 3.02 LOST, STOLEN, DESTROYED OR MUTILATED DEBT WARRANT
CERTIFICATES. Upon receipt by the Company and the Debt Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Debt Warrant Certificate and of indemnity
(other than in connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation) reasonably satisfactory
to them, the Company shall execute, and the Debt Warrant Agent shall countersign
and deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the issuance of a new Debt
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 connection therewith and any other expenses (including the
fees and expenses of the Debt Warrant Agent) in connection therewith. Every
substitute Debt Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, stolen or destroyed Debt Warrant Certificate shall
represent a contractual obligation of the Company, whether or not such lost,
stolen or destroyed Debt 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 Debt Warrant Certificates, duly executed
and delivered hereunder, evidencing Debt Warrants of the same title. 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,
stolen, destroyed or mutilated Debt Warrant Certificates.
Section 3.03 HOLDER OF DEBT WARRANTS MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, a Holder, without the
consent of the Debt Warrant Agent, the Trustee, the holder of any Underlying
Debt Securities or the Holder of any other Debt Warrant, may, on its own behalf
and for its own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise in respect of,
its right to
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exercise its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
[Section 4.01 DEBT WARRANT REGISTER; EXCHANGE AND TRANSFER OF DEBT
WARRANTS. If registered Debt Warrants - The Debt Warrant Agent shall maintain,
at its corporate trust office [or at __________], a register (the " Debt Warrant
Register") in which, upon the issuance of Debt Warrants, or on and after the
Detachable Date in the case of Debt Warrants not separately transferable prior
thereto, and, subject to such reasonable regulations as the Debt Warrant Agent
may prescribe, it shall register Debt Warrant Certificates and exchanges and
transfers thereof. The Debt Warrant Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time.]
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Debt Warrant Agent [or at __________] Debt Warrant
Certificates may be exchanged for one or more other Debt Warrant Certificates
evidencing the same aggregate number of Debt Warrants of the same title, or may
be transferred in whole or in part. A Debt Warrant Certificate evidencing Debt
Warrants that are not then transferable separately from the Offered Debt
Security with which they were issued may be exchanged or transferred prior to
its Detachable Date only together with such Offered Debt Security and only for
the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Debt Security; and on or prior to the Detachable Date, [if
registered Offered Debt Securities and Debt Warrants - each exchange or transfer
of such Offered Debt Security on the security register of the Offered Debt
Securities shall operate also to exchange or transfer the related Debt Warrant]
[if bearer Offered Debt Securities and Debt Warrants - an exchange or transfer
of possession of the related Offered Debt Security shall operate also to
exchange or transfer the related Debt Warrants]. [If registered Debt Warrants -
A transfer shall be registered upon surrender of a Debt Warrant Certificate to
the Debt Warrant Agent at its corporate trust office [or at __________] for
transfer, properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Debt Warrant Agent duly signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a bank or trust
company, (b) a broker or dealer that is a member of the National Association of
Securities Dealers, Inc. (the "NASD") or (c) a member of a national securities
exchange. Upon any such registration of transfer, a new Debt Warrant Certificate
shall be issued to the transferee.] Whenever a Debt Warrant Certificate is
surrendered for exchange or transfer, the Debt Warrant Agent shall countersign
and deliver to the person or persons entitled thereto one or more Debt Warrant
Certificates duly executed by the Company, as so requested. The Debt Warrant
Agent shall not be required to effect any exchange or transfer which will result
in the issuance of a Debt Warrant Certificate evidencing a fraction of a Debt
Warrant. All Debt Warrant Certificates issued upon any exchange or transfer of a
Debt Warrant Certificate shall be the valid obligations of the Company,
evidencing the same
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obligations, and entitled to the same benefits under this Agreement, as the Debt
Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer
of Debt Warrants, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such exchange or transfer, in accordance with Section 2.02(f) hereof.
Section 4.02 TREATMENT OF HOLDERS OF DEBT WARRANTS. Every Holder of a
Debt Warrant, by accepting the Debt Warrant Certificate evidencing the same,
consents and agrees with the Company, the Debt Warrant Agent and with every
other Holder of Debt Warrants of the same title that the Company and the Debt
Warrant Agent may treat the Holder of a Debt Warrant Certificate (or, if the
Debt Warrant Certificate is not then detachable, the Holder of the related
Offered Debt Security) as the absolute owner of such Debt Warrant for all
purposes and as the person entitled to exercise the rights represented by such
Debt Warrant, any notice to the contrary notwithstanding.
Section 4.03 CANCELLATION OF DEBT WARRANT CERTIFICATES. In the event
that the Company shall purchase, redeem or otherwise acquire any Debt Warrants
after the issuance thereof, the Debt Warrant Certificate or Certificates
evidencing such Debt Warrants shall thereupon be delivered to the Debt Warrant
Agent and be cancelled by it. The Debt Warrant Agent shall also cancel any Debt
Warrant Certificate (including any mutilated Debt Warrant Certificate) delivered
to it for exercise, in whole or in part, or for exchange [or transfer] [if Debt
Warrant Certificates are issued in bearer form - , except that Debt Warrant
Certificates delivered to the Debt Warrant Agent in exchange for Debt Warrant
Certificates of other denominations may be retained by the Debt Warrant Agent
for reissue]. Debt Warrant Certificates so cancelled shall be delivered by the
Debt Warrant Agent to the Company from time to time, or disposed of in
accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.01 DEBT WARRANT AGENT. The Company hereby appoints
___________________ as Debt Warrant Agent of the Company in respect of the Debt
Warrants and the Debt Warrant Certificates upon the terms and subject to the
conditions set forth herein; and _______________ hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Debt Warrant Certificates and hereby and such
further powers and authority acceptable to it 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 any Debt
Warrant Certificate are subject to and governed by the terms and provisions
hereof.
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Section 5.02 CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS. The Debt
Warrant Agent accepts its obligations set forth herein 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 shall be subject:
a) COMPENSATION AND INDEMNIFICATION. The Company agrees to
promptly pay the Debt Warrant Agent the compensation [set forth in
Exhibit A hereto] and to reimburse the Debt Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by
the Debt Warrant Agent in connection with the services rendered
hereunder by the Debt Warrant Agent. The Company also agrees to
indemnify the Debt Warrant Agent for, and to hold it harmless against,
any loss, liability or expense (including the reasonable costs and
expenses of defending against any claim of liability) incurred without
negligence or bad faith on the part of the Debt Warrant Agent arising
out of or in connection with its appointment, status or service as Debt
Warrant Agent hereunder.
b) AGENT FOR THE COMPANY. In acting under this Agreement and
in connection with any Debt Warrant Certificate, the Debt 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 Holder.
c) COUNSEL. The Debt Warrant Agent may consult with counsel
satisfactory to it, 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 Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken,
suffered or omitted by it in reliance upon any 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) OFFICER'S CERTIFICATE. Whenever in the performance of its
duties hereunder the Debt Warrant Agent shall reasonably deem it
necessary that any fact or matter be proved or established by the
Company prior to taking, suffering or omitting any action hereunder,
the Debt Warrant Agent may (unless other evidence in respect thereof be
herein specifically prescribed), in the absence of bad faith on its
part, rely upon a certificate signed by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the President,
an Executive Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company (an
"Officer's Certificate") delivered by the Company to the Debt Warrant
Agent.
f) ACTIONS THROUGH AGENTS. The Debt Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or perform
any duty hereunder either itself
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or by or through its attorneys or agents, and the Debt Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the Company
resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and
continued employment of such attorneys and agents.
g) CERTAIN TRANSACTIONS. The Debt Warrant Agent, and any
officer, director or employee thereof, may become the owner of, or
acquire any interest in, any Debt Warrant, with the same rights that
he, she or it would have if it were not the Debt Warrant Agent, and, to
the extent permitted by applicable law, he, she or it may engage or be
interested in any financial or other transaction with the Company and
may serve on, or as depository, trustee or agent for, any committee or
body of holders of Underlying Debt Securities or other obligations of
the Company as if it were not the Debt Warrant Agent. Nothing in this
Agreement shall be deemed to prevent the Debt Warrant Agent from acting
as Trustee under the Indenture.
h) NO LIABILITY FOR INTEREST. The Debt Warrant Agent shall not
be liable for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Debt
Warrant Certificates, except as otherwise agreed with the Company.
i) NO LIABILITY FOR INVALIDITY. The Debt Warrant Agent shall
incur no liability with respect to the validity of this Agreement
(except as to the due execution hereof by the Debt Warrant Agent) or
any Debt Warrant Certificate (except as to the countersignature thereof
by the Debt Warrant Agent).
j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Debt
Warrant Agent shall not be responsible for any of the recitals or
representations contained herein (except as to such statements or
recitals as describe the Debt Warrant Agent or action taken or to be
taken by it) or in any Debt Warrant Certificate (except as to the Debt
Warrant Agent's countersignature on such Debt Warrant Certificate), all
of which recitals and representations are made solely by the Company.
k) NO IMPLIED OBLIGATIONS. The Debt Warrant Agent shall be
obligated to perform only such duties as are specifically set forth
herein, and no other duties or obligations shall be implied. The Debt
Warrant Agent shall not be under any obligation to take any action
hereunder that may subject it to any expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion,
assured to it. The Debt Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any Debt
Warrant Certificate countersigned by the Debt 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 issuance or exercise
of Debt Warrants. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company
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in the performance of its covenants or agreements contained herein or
in any Debt Warrant Certificate or in case of the receipt of any
written demand from a Holder 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 6.04 hereof, to make
any demand upon the Company.
Section 5.03 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. a) The
Company agrees, for the benefit of the Holders of the Debt Warrants, that there
shall at all times be a Debt Warrant Agent hereunder until all the Debt Warrants
are no longer exercisable.
b) The Debt Warrant Agent may at any time resign as such by
giving written notice to the Company, specifying the date on which such
resignation shall become effective; provided that such date shall not be less
than [90] days after the date on which such notice is given, unless the Company
agrees to accept a shorter notice. Such resignation is subject to the
appointment and acceptance of a successor Debt Warrant Agent, as hereinafter
provided. The Debt Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become effective.
Notwithstanding the provisions of this Section 5.03(b), such resignation or
removal shall take effect only upon the appointment by the Company, as
hereinafter provided, of a successor Debt Warrant Agent (which shall be a bank
or trust company organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under the laws of such jurisdiction to exercise corporate trust powers and
having at the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of financial
condition) of at least [$50,000,000]) and the acceptance of such appointment by
such successor Debt Warrant Agent. In the event a successor Debt Warrant Agent
has not been appointed and has not accepted its duties within [90] days of the
Debt Warrant Agent's notice of resignation, the Debt Warrant Agent may apply to
any court of competent jurisdiction for the designation of a successor Debt
Warrant Agent. The obligations of the Company under Section 5.02(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Debt Warrant Agent.
c) In case at any time the Debt Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy law or similar law, or make an
assignment for the benefit of its creditors, or consent to the appointment of a
receiver or custodian for all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian for it or for all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable federal or state
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Debt Warrant
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Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Debt Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Debt Warrant Agent. Upon the appointment as aforesaid of a
successor Debt Warrant Agent and acceptance by the successor Debt Warrant Agent
of such appointment, the Debt Warrant Agent so superseded shall cease to be Debt
Warrant Agent hereunder.
d) Any successor Debt Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Debt Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as Debt
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Debt Warrant Agent shall be entitled to
receive, [the Debt Warrant Register and] all monies, securities and other
property on deposit with or held by such predecessor (together with any books
and records relating thereto), as Debt Warrant Agent hereunder.
e) The Company shall cause notice of the appointment of any
successor Debt Warrant Agent to be [if registered Debt Warrants - mailed by
first-class mail, postage prepaid, to each Holder at its address appearing on
the Debt Warrant Register or, in the case of Debt Warrants that are issued with
Offered Debt Securities and cannot then be transferred separately therefrom, on
the security register for the Offered Debt Securities] [if bearer Debt Warrants
published in an Authorized Newspaper (as defined in Section 101 of the
Indenture) in The City of New York and in such other city or cities as may be
specified by the Company at least twice, [the first such publication to be not
earlier than the earliest date and not later than the latest date prescribed for
the giving such notice]. Such notice shall set forth the name and address of the
successor Debt Warrant Agent. Failure to give any notice provided for in this
Section 5.03(e), or any defect therein, shall not, however, affect the legality
or validity of the appointment of the successor Debt Warrant Agent.
f) Any corporation into which the Debt Warrant Agent hereunder
may be merged or converted, or any corporation with which the Debt Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a party, or any
corporation to which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, provided that such Corporation
shall be qualified as aforesaid, shall be the successor Debt Warrant Agent under
this Agreement without the execution or filing of any paper, the giving of any
notice to Holders or any further act on the part of the parties hereto.
Section 5.04 COMPLIANCE WITH APPLICABLE LAWS. The Debt Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Debt Warrant
Agreement and in connection with the Debt Warrants, including (but not limited
to) the provisions of United States federal income tax laws regarding
information reporting and backup withholding. The Debt Warrant Agent expressly
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assumes all liability for its failure to comply with any such laws imposing
obligations on it, including (but not limited to) any liability for failure to
comply with any applicable provisions of United States federal income tax laws
regarding information reporting and backup withholding.
Section 5.05 OFFICE. The Company will maintain an office or agency
where Debt Warrant Certificates may be presented for exchange, transfer or
exercise. The office initially designated for this purpose shall be the
corporate trust office of the Debt Warrant Agent at
_____________.
ARTICLE VI
MISCELLANEOUS
Section 6.01 CONSOLIDATION OR MERGER OF THE COMPANY AND CONVEYANCE OR
TRANSFER PERMITTED SUBJECT TO CERTAIN CONDITIONS. To the extent permitted in the
Indenture, the Company may consolidate with or merge into another corporation or
other entity, or convey or transfer all or substantially all of its properties
and assets to any other corporation or other entity.
Section 6.02 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, conveyance or transfer and upon any assumption of
the duties and obligations of the Company by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
relieved of any further obligation under this Agreement and the Debt Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Underlying Debt Securities issuable pursuant to the terms hereof. All the
Underlying Debt Securities so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Underlying Debt Securities
theretofore or thereafter issued in accordance with the terms of this Agreement
and the Indenture.
In case of any such consolidation, merger, conveyance or
transfer, such changes in phraseology and form (but not in substance) may be
made in the Underlying Debt Securities thereafter to be issued as may be
appropriate.
Section 6.03 SUPPLEMENTS AND AMENDMENTS. a) The Company and the Debt
Warrant Agent may from time to time supplement or amend this Agreement without
the approval or consent of any Holder in order to cure any ambiguity, to correct
or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein, or to make any other provision in
regard to matters or questions arising hereunder that the Company and the Debt
Warrant Agent may deem necessary or desirable and that shall not adversely
affect the interests of the Holders. Every Holder of Debt Warrants, whether
issued before or after any such supplement or amendment, shall be bound thereby.
Promptly after the effectiveness of any supplement or amendment that affects the
interests of the Holders, the Company shall give notice
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thereof, as provided in Section 5.03(d) hereof, to the Holders affected thereby,
setting forth in general terms the substance of such supplement or amendment.
b) The Company and the Debt Warrant Agent may modify or amend
this Agreement and the Debt Warrant Certificates with the consent of the Holders
of not fewer than a majority in principal amount of the underlying Debt
Securities represented by the Debt Warrants affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that shortens the period of time during which the Debt Warrants may be
exercised, or otherwise materially and adversely affects the exercise rights of
the Holders or reduces the percentage of Holders of outstanding Debt Warrants
the consent of which is required for modification or amendment of this Agreement
or the Debt Warrants, may be made without the consent of each Holder affected
thereby.
Section 6.04 NOTICES AND DEMANDS TO THE COMPANY AND DEBT WARRANT AGENT.
If the Debt Warrant Agent shall receive any notice or demand addressed to the
Company by a Holder pursuant to the provisions of this Agreement or a Debt
Warrant Certificate (other than notices relating to the exchange[, transfer] or
exercise of Debt Warrants), the Debt Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 6.05 ADDRESSES. Any communications from the Company to the Debt
Warrant Agent with respect to this Agreement shall be directed to
____________________, Attention: ____________________, and any communications
from the Debt Warrant Agent to the Company with respect to this Agreement shall
be directed to Polaroid Corporation, 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Treasurer, with a copy to the Secretary (or such
other address as shall be specified in writing by the Debt Warrant Agent or by
the Company, as the case may be).
Section 6.06 APPLICABLE LAW. This Agreement and the Debt Warrants shall
be governed by and construed in accordance with the laws of the [State of
Delaware] applicable to contracts made and to be performed entirely within such
State.
Section 6.07 DELIVERY OF PROSPECTUS. The Company will furnish to the
Debt Warrant Agent sufficient copies of a prospectus or prospectuses relating to
the Underlying Debt Securities deliverable upon exercise of any outstanding Debt
Warrants (each a "Prospectus"), and the Debt Warrant Agent agrees to deliver to
the Holder of a Debt Warrant, prior to or concurrently with the delivery of the
Underlying Debt Securities issued upon the exercise thereof, a copy of the
Prospectus relating to such Underlying Debt Securities.
Section 6.08 GOVERNMENTAL APPROVALS. The Company will take such action
as may be necessary to obtain and keep effective any and all permits, consents
and approvals of governmental agencies and authorities, and will make all
filings under federal and state securities laws (including, without limitation,
the maintenance of the effectiveness of a registration statement in respect of
the Underlying Debt Securities under the Securities Act of 1933), as may
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be or become requisite in connection with the issuance, sale, transfer and
delivery of Debt Warrants and Debt Warrant Certificates, the exercise of Debt
Warrants and the issuance, sale and delivery of Underlying Debt Securities
issued upon exercise of Debt Warrants.
Section 6.09 PERSONS HAVING RIGHTS UNDER DEBT WARRANT AGREEMENT.
Nothing in this Agreement, expressed or implied, and nothing that may be
inferred from any of the provisions hereof is intended or shall be construed to
confer upon or give to any person or corporation other than the Company, the
Debt Warrant Agent and the Holders any right, remedy or claim under or by reason
of this Agreement or any covenant, condition, stipulation, promise or agreement
herein; and all covenants, conditions, stipulations, promises and agreements
herein shall be for the sole and exclusive benefit of the Company, the Debt
Warrant Agent and their respective successors and the Holders.
Section 6.10 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 6.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which when so executed and delivered shall be deemed
to be an original; but all such counterparts taken together shall constitute one
and the same agreement.
Section 6.12 INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available during business hours at the office of the Debt Warrant Agent for
inspection by any Holder. The Debt Warrant Agent may require such Holder to
submit its Debt Warrant Certificate for inspection prior to making such copy
available.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
POLAROID CORPORATION
[Seal]
By
----------------------------------
Attest: Name and Title:
---------------------------------
Name and Title:
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-----------------------------------------
[Seal]
Attest:
By
----------------------------------
Name and Title:
---------------------------------
Name and Title:
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Exhibit A
to
[Senior] [Subordinated] Debt Warrant Agreement
dated as of __________, 19__
[Compensation of Debt Warrant Agent]
-17-
