EXHIBIT 4.9
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XXXX XXXXXXXX CORPORATION
AND
___________________, AS WARRANT AGENT
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PREFERRED STOCK
WARRANT AGREEMENT
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DATED AS OF ________, ____
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TABLE OF CONTENTS
Page
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Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE OF WARRANTS 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 . . . . . . . . 3
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. . . . . . . . . . . . . . . . . . 3
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . 4
SECTION 2.03. Exercise of Warrants . . . . . . . . . . . . . . 4
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. . . . . . . 5
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . 5
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. . . . . . . . . . . . . . . 6
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ARTICLE IV
EXCHANGE AND TRANSFER OF
WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. . 7
SECTION 4.02. Treatment of Holders of Warrant Certificates . . 8
SECTION 4.03. Cancellation of Warrant Certificates . . . . . . 8
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. . . . . . . . . . . . . . . . . . 9
SECTION 5.02. Conditions of Warrant Agent's Obligations. . . . 9
SECTION 5.03. Resignation and Appointment of Successor . . . . 11
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Notices and Demands to the Company and
Warrant Agent. . . . . . . . . . . . . . . . . . 13
SECTION 6.03. Addresses. . . . . . . . . . . . . . . . . . . . 13
SECTION 6.04. Governing Law. . . . . . . . . . . . . . . . . . 13
SECTION 6.05. Delivery of Prospectus . . . . . . . . . . . . . 13
SECTION 6.06. Obtaining of Governmental Approvals. . . . . . . 13
SECTION 6.07. Persons Having Rights Under Warrant Agreement. . 13
SECTION 6.08. Headings . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.09. Counterparts . . . . . . . . . . . . . . . . . . 14
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SECTION 6.10. Inspection of Agreement. . . . . . . . . . . . . 14
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . 14
Signatures . . . . . . . . . . . . . . . . . . . . . . . . 14
EXHIBIT A: Form of Warrant Certificate. . . . . . . . . . . A-1
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XXXX XXXXXXXX CORPORATION
Form of Preferred Stock Warrant Agreement
PREFERRED STOCK WARRANT AGREEMENT, dated as of ___________ between
Xxxx Xxxxxxxx Corporation, a Delaware corporation (hereinafter called the
"Company") and __________________________________________ as Warrant Agent
(herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF WARRANTS ARE SOLD WITH OTHER
SECURITIES - [title of such other securities being offered] (the "Other
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Preferred Stock purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
_______________________________
* Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Other Securities.
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF WARRANTS. [IF WARRANTS ALONE - Upon issuance,
each Warrant Certificate shall evidence one or more Warrants.] [IF OTHER
SECURITIES AND WARRANTS - Warrants shall be [initially] issued in connection
with the issuance of the Other Securities [but shall be separately transferable
on and after (the "Detachable Date")] [and shall not be separately transferable]
and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase one Warrant Security. [IF OTHER SECURITIES AND
WARRANTS - Warrant Certificates shall be initially issued in units with the
Other Securities and each Warrant Certificate included in such a unit shall
evidence _________________________________ Warrants for each
_______________________ principal amount] [________________________ shares] of
Other Securities included in such unit.]
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ____________________
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 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 the Chairman of the Board, the President or a Vice President of the
Company and by the Treasurer or one of the Assistant Treasurers or the Secretary
or one of the Assistant Secretaries of the Company under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
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In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein shall
mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[IF OTHER SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE - or upon the
register of the Other Securities prior to the Detachable Date. Prior to the
Detachable Date, the Company will, or will cause the Registrar of the Other
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Other Securities with Warrants as may be necessary to keep
the Warrant Agent's records up to date].
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate not exceeding __________________
Warrant Securities (except as provided in Sections 2.03(c), 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 ______________________ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
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 in connection with their transfer, as hereinafter
provided.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. WARRANT PRICE. During the period from _______, through and
including _______________________________________________, the exercise price of
each Warrant will be _______. During the period from ________________________,
through and including _________________________________________________, the
exercise price of each Warrant will
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be _______. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". No adjustment shall be made for any dividends
on any Warrant Securities issuable upon exercise of any Warrant.
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[__________________________] and at or before [_______] P.M., [City] time, on
___________________________________ or such later date as the Company may
designate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the "Expiration Date"). Each Warrant not exercised at or before
[_______] P.M., [City] time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) 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 Certificate and by
paying in full, in [lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds] the Warrant Price for
each Warrant exercised to the Warrant Agent at its corporate trust office [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 with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of the Company maintained with it and
shall advise the Company by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which
such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iv) such other information as the Company shall
reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
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Certificate evidencing such 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 evidencing the number of
such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant 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.
(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient
to provide for the exercise of the Warrant Certificates.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED BY WARRANTS OR
WARRANT CERTIFICATES. No Warrant Certificates or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to exercise any
voting rights.
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and or indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender
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, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment
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of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such holder's right to exercise the Warrants
evidenced by such holder's Warrant Certificate in the manner provided in such
holder's Warrant Certificate and in this Agreement.
SECTION 3.04. RECLASSIFICATION, CONSOLIDATION, MERGER, SALE, CONVEYANCE OR
LEASE. In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding shares of
Warrant Securities; or (b) any consolidation or merger to which the Company is
party (other than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change in, the outstanding shares of Warrant Securities issuable upon exercise
of the Warrants); or (c) any sale, conveyance or lease to another corporation
of the property of the Company as an entirety or substantially as an entirety;
then the Company, or such successor or purchasing corporation, as the case may
be, shall make appropriate provision by amendment of this Agreement or otherwise
so that the holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or
assuming
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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 Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name, 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
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance, transfer or lease complies with the provisions of this
Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF OTHER
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE - Upon] [IF OTHER
SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Other Securities]
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date upon] surrender at the corporate trust office of the Warrant
Agent [or ____________________________ ], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at ______________
_____________________], books in which, subject to such reasonable regulations
as it may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [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
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form satisfactory to the Company and the Warrant Agent. No service charge shall
be made for any exchange or registration of transfer of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant or a number of full Warrants and a fraction of a Warrant.
All Warrant Certificates issued upon any exchange or registration of transfer of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations and entitled to the same benefits under this Agreement as
the Warrant Certificate surrendered for such exchange or registration of
transfer.
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF OTHER
SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE - Prior to the Detachable
Date, the Company, the Warrant Agent and all other persons may treat the owner
of the Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date and prior to
due presentment of a Warrant Certificate for registration of transfer, ] [T]he
Company and the Warrant Agent may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner satisfactory to
the Company.
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. The Company hereby appoints _________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
_____________________________________ hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon
it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
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 counsel fees)
incurred without gross negligence by the Warrant Agent in connection with
the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against,
any loss, liability or expense incurred without negligence 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 costs and expenses of
defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations
or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
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(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 any of the Indentures.
(f) NO LIABILITY FOR INTEREST. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(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 he Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty
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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 hereof, 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 agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Warrant Agent (which shall
be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the
Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or State bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order
for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, or a
decree or order by a court having jurisdiction in the premises
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shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs
for the purpose of rehabilitation, conservation, winding up or liquidation,
a successor Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all
or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; PROVIDED that such action
shall not affect adversely the interests of the holders of the Warrant
Certificates.
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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 Xxxx Xxxxxxxx Corporation, Xxxx Xxxxxxxx Plaza,
00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Secretary
(or such other address as shall be specified in writing by the Warrant Agent or
by the Company).
SECTION 6.04. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of [_________].
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant 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 APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities act filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant 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 Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
XXXX XXXXXXXX CORPORATION
By______________________
Its_____________________
Attest:
__________________________
________________________
Warrant Agent
By______________________
Its_____________________
Attest:
_________________________
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Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[IF WARRANTS ARE ATTACHED TO OTHER Prior to _______________ this Warrant
SECURITIES AND ARE NOT IMMEDIATELY Certificate cannot be transferred or
DETACHABLE. exchanged unless attached to a [Title
of Other Securities].]
[FORM OF LEGEND IF WARRANTS ARE Prior to _______________, Warrants
NOT IMMEDIATELY EXERCISABLE. evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [_________] P.M., [CITY] TIME, ON ____________, 19__
XXXX XXXXXXXX CORPORATION
Warrants to Purchase
Warrant Certificate Representing
[Title of Warrant Securities]
No. __________ ___________ Warrants
This certifies that ____________________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT
IMMEDIATELY DETACHABLE - , subject to the registered owner qualifying as a
"Holder" of this Warrant Certificate, as hereinafter defined) to purchase, at
any time [after [______] P.M., [City] time, on _______________ and] on or before
[_______] P.M., [City] time, on ____________________, ____________ shares of
[Title of Warrant Securities] (the "Warrant Securities"), of Xxxx Xxxxxxxx
Corporation (the "Company") on the following basis: during the period
from _______________, through and including ______________, the exercise price
of each Warrant will be ___________; during the period from ________, through
and including ________, the exercise price of each warrant will be ________
(the "Warrant
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Price"). No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant. The Holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the back
hereof and by paying in full [in lawful money of the United States of America]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] in immediately available funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent"), [or _________
________________________], which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "Holder" as used herein shall mean [IF WARRANTS ARE ATTACHED TO
OTHER SECURITIES AND ARE NOT IMMEDIATELY DETACHABLE - prior to ___________, __
(the "Detachable Date"), the registered owner of the Company's [title of Other
Securities] to which this Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of____________, __ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _____________________________].
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT IMMEDIATELY
DETACHABLE - Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"Other Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Additionally, on or prior to the Detachable
Date, each transfer of such Other Security or the register of the Other
Securities shall operate also to transfer this Warrant Certificate. After such
date, transfer of this] [IF WARRANTS ARE ATTACHED
A-2
TO OTHER SECURITIES AND ARE NOT IMMEDIATELY DETACHABLE - Transfer of this]
Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or __________
_______________] by the registered owner of such owner's assigns, in person or
by an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
[IF OTHER SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -
Except as provided in the immediately preceding paragraph, after] [IF OTHER
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANT ALONE -
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or ____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: ____________________, _______________
XXXX XXXXXXXX CORPORATION
By____________________________
Its_________________________
ATTEST:
_____________________________________________
Countersigned:
_____________________________________________
As Warrant Agent
By
_____________________________________________
Authorized Signature
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[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the Holder must pay [in United
States dollars] [in cash or 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 in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: __________________, which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below and present
this Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth below.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the payment.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase ______ shares of the [Title
of Warrant Securities] (the "Warrant Securities") of Xxxx Xxxxxxxx Corporation
and represents that he has tendered payment for such Warrant Securities [in
Dollars] [in cash or by certified check or official bank check or by bank wire
transfer, in each case] [by bank wire transfer in immediately available funds]
to the order of Xxxx Xxxxxxxx Corporation, c/o [insert name and address of
Warrant Agent], in the amount of ________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ___________________________ Name ________________________________
(Please Print)
___________________________________ Address______________________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________________
A-4
Signature Guaranteed
__________________________________ Signature____________________________
[FOR REGISTERED WARRANTS -- Signature
must conform in all respects to name of
holder as specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York, Midwest or Pacific Stock Exchange)
This Warrant may be exercised at the following addresses:
By hand at__________________________________________________
__________________________________________________
__________________________________________________
By mail at__________________________________________________
__________________________________________________
__________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
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