EXHIBIT 4.11
FORM OF CURRENCY WARRANT AGREEMENT
-------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ CORPORATION
and
______________________,
As Warrant Agent
_______________
WARRANT AGREEMENT
dated as of _______________, 20__
______________________________
UP TO _____________ CURRENCY [PUT/CALL] WARRANTS
EXPIRING ____________, 20__
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I
ISSUANCE, FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANTS
SECTION 1.01 Issuance of Warrants; Book Entry Procedures; Successor Depository. . .1
SECTION 1.02 Form, Execution and Delivery of Global Warrant Certificate . . . . . .2
SECTION 1.03 Global Warrant Certificate . . . . . . . . . . . . . . . . . . . . . .3
SECTION 1.04 Registration of Transfers and Exchanges . . . . . . . . . . . . . . .4
SECTION 1.05 Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Duration of Warrants; Minimum Exercise Amounts; Notice of
Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02 Exercise and Delivery of Warrants. . . . . . . . . . . . . . . . . . 11
SECTION 2.03 Automatic Exercise of the Warrants . . . . . . . . . . . . . . . . . 13
SECTION 2.04 Covenant of the Company. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.05 Return of Global Warrant Certificate . . . . . . . . . . . . . . . . 14
SECTION 2.06 Return of Money Held Unclaimed for Two Years.. . . . . . . . . . . . 14
SECTION 2.07 Designation of Agent for Receipt of Notice . . . . . . . . . . . . . 14
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01 Holder of Warrant May Enforce Rights . . . . . . . . . . . . . . . . 14
SECTION 3.02 Merger, Consolidation, Sale, Transfer or Conveyance. . . . . . . . . 15
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01 Cancellation of Warrants . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.02 Treatment of Holders . . . . . . . . . . . . . . . . . . . . . . . . 15
PAGE
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.02 Conditions of Warrant Agent`s Obligations. . . . . . . . . . . . . . 16
SECTION 5.03 Resignation, Removal and Appointment of Successor. . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Consolidations and Mergers of the Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions . . . . . . . . 19
SECTION 6.02 Rights and Duties of Successor Corporation . . . . . . . . . . . . . 19
SECTION 6.03 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.04 Notices and Demands to the Company and Warrant Agent . . . . . . . . 20
SECTION 6.05 Addresses for Notices. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.06 Notices to Holders . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.07 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.08 Obtaining of Governmental Approvals. . . . . . . . . . . . . . . . . 21
SECTION 6.09 Persons Having Rights Under Warrant Agreement. . . . . . . . . . . . 21
SECTION 6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.12 Inspection of Agreement. . . . . . . . . . . . . . . . . . . . . . . 21
THIS WARRANT AGREEMENT, dated as of _____________, 20__, between ▇▇▇▇ ▇▇▇
Corporation, a corporation duly organized and existing under the laws of the
State of Maryland (the "COMPANY"), and [name of Warrant Agent], a [corporation]
[national banking association] organized and existing under the laws of
__________, as Warrant Agent (the "WARRANT AGENT"),
W I T N E S S E T H T H A T:
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "WARRANT") representing the right to receive from the Company
the Cash Settlement Value (as defined herein) in U.S. dollars of the right to
[purchase/sell] ____________ at a price of U.S. [$50]; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer and exercise of the Warrants, and desires to set forth, among
other things, the form and provisions of the Warrants and the terms and
conditions on which they may be issued, transferred, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01 ISSUANCE OF WARRANTS; BOOK ENTRY PROCEDURES; SUCCESSOR
DEPOSITORY. (a) The Warrants shall be represented by a single certificate (the
"GLOBAL WARRANT CERTIFICATE"). Each Warrant shall represent the right, subject
to the provisions contained herein and in the Global Warrant Certificate, to
receive the Cash Settlement Value (as defined in paragraph (f) of Section 2.02)
of such Warrant. In no event shall Holders (as defined in Section 2.01) be
entitled to receive any interest on any Cash Settlement Value (unless the
Company shall default in the payment of such Cash Settlement Value). Holders
will not be entitled to receive definitive Warrants evidencing the Warrants;
PROVIDED, HOWEVER, that if the Depository (as defined in Section 1.01(b)) is at
any time unwilling or unable to continue as Depository for the Warrants and a
successor Depository is not appointed by the Company within 90 days, the Company
will issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In addition, the Company may at any time determine not to have the
Warrants represented by a Global Warrant Certificate and, in such event, will
issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In either instance, and in accordance with the provisions of this
Agreement, each Holder will be entitled to have a number of Warrants equivalent
to such Holder's beneficial interest in the Global Warrant
4
Certificate registered in its name and will be entitled to physical delivery
of such Warrants in definitive form by the Depository Participant (as defined
in Section 1.01(c)) through which such Holder's beneficial interest is
reflected. The provisions of Section 1.05 shall apply only if and when
Warrants in definitive form ("WARRANT CERTIFICATES") are issued hereunder.
Unless the context shall otherwise require, all references in this Agreement
to the Global Warrant Certificate shall include the Warrant Certificates in
the event that Warrant Certificates are issued.
(b) The Global Warrant Certificate shall be deposited with the
Depository or its agent (the term "DEPOSITORY," as used herein, initially refers
to The Depository Trust Company and includes any successor depository selected
by the Company as provided in Section 1.01(d)) for credit to the accounts of the
Depository Participants as shown on the records of the Depository from time to
time.
(c) The Global Warrant Certificate will initially be registered
in the name of a nominee of the Depository selected by the Company for the
Warrants. The Warrant holdings of Depository Participants will be recorded on
the books of the Depository. The holdings of customers of Depository
Participants will be reflected on the books and records of such Depository
Participants and will not be known to the Warrant Agent, the Company or to the
Depository. "DEPOSITORY PARTICIPANTS" include securities brokers and dealers,
banks and trust companies, clearing organizations and certain other
organizations which are participants in the DTC system. Access to the
Depository's system is also available to others such as banks, securities
brokers and dealers and trust companies that clear or maintain a custodial
relationship with a Depository Participant, either directly or indirectly. The
Global Warrant Certificate will be held by the Depository or its agent.
(d) The Company may from time to time select a new entity to
act as Depository and, if such selection is made, the Company shall promptly
give the Warrant Agent notice to such effect identifying the new Depository and
the Global Warrant Certificate shall be delivered to the Warrant Agent and shall
be transferred to the new Depository as provided in Section 1.04 as promptly as
possible. Appropriate changes may be made in the Global Warrant Certificate, the
notice of exercise and the related notices delivered in connection with an
exercise of Warrants to reflect the selection of the new Depository.
SECTION 1.02 FORM, EXECUTION AND DELIVERY OF GLOBAL WARRANT CERTIFICATE.
The Global Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in EXHIBIT A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. The Global Warrant Certificate may have imprinted
or otherwise reproduced thereon such letters, numbers or other marks of
identification or designation and such legends or endorsements as the officers
of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed or of the
5
Depository, or to conform to usage. The Global Warrant Certificate shall be
signed on behalf of the Company by its Chairman of the Board, President,
Chief Financial Officer or Treasurer under its corporate seal reproduced
thereon and attested by its Secretary or any Assistant Secretary. The
signature of any of these officers on the Global Warrant Certificate may be
manual or facsimile. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the
validity or enforceability of the Global Warrant Certificate that has been
duly countersigned and delivered by the Warrant Agent.
In case any officer of the Company who shall have signed the Global
Warrant Certificate either manually or by facsimile signature shall cease to be
such officer before the Global Warrant Certificate so signed shall have been
countersigned and delivered by the Warrant Agent to the Company or delivered by
the Company, such Global Warrant Certificate nevertheless may be countersigned
and delivered as though the person who signed such Global Warrant Certificate
had not ceased to be such officer of the Company; and the Global Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Global 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.
SECTION 1.03 GLOBAL WARRANT CERTIFICATE. One or more Global Warrant
Certificates relating to no more than __________ Warrants originally issued may
be executed by the Company and delivered to the Warrant Agent on or after the
date of execution of this Agreement, provided that only one Global Warrant
Certificate shall be outstanding at any one time. The Warrant Agent is
authorized, upon receipt of a Global Warrant Certificate from the Company, duly
executed on behalf of the Company, to countersign such Global Warrant
Certificate. The Global Warrant Certificate shall be manually countersigned and
dated the date of countersignature by the Warrant Agent and shall not be valid
for any purpose unless so countersigned. The Warrant Agent shall countersign and
deliver the Global Warrant Certificate to or upon the order of the Company.
The Global Warrant Certificate may be exchanged for a new Global Warrant
Certificate to reflect the issuance by the Company of additional Warrants;
PROVIDED, HOWEVER, that in no event shall the number of Warrants represented by
the Global Warrant Certificate exceed ____________ originally issued. To effect
such an exchange the Company shall deliver to the Warrant Agent a new Global
Warrant Certificate duly executed on behalf of the Company as provided in
Section 1.02. The Warrant Agent shall countersign the new Global Warrant
Certificate as provided in this Section 1.03 and, upon a written order of the
Company, shall deliver the new Global Warrant Certificate to the Depository in
exchange for, and upon receipt of, the Global Warrant Certificate then held by
the Depository. The Warrant Agent shall cancel the Global Warrant Certificate
delivered to it by the Depository and return the canceled Global Warrant
Certificate to the Company.
6
SECTION 1.04 REGISTRATION OF TRANSFERS AND EXCHANGES. Except as
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository or to a nominee of a
successor Depository, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a firm that
is a member of the New York, Chicago or Pacific Stock Exchange or the National
Association of Securities Dealers, Inc. or by a commercial bank or trust company
having an office or correspondent in the United States which is a participant in
an approved Signature Guarantee Medallion Program. Upon any such registration
of transfer, the Company shall execute and the Warrant Agent shall countersign
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of unexercised Warrants
as evidenced by the Global Warrant Certificate at the time of such registration
of transfer.
The Global Warrant Certificate may be transferred as provided above at
the option of the Holder thereof when surrendered to the Warrant Agent at its
office or agency maintained for the purpose of transferring and exercising the
Warrants, which shall be south of ▇▇▇▇▇▇▇▇ Street in the Borough of Manhattan,
The City of New York (the "WARRANT AGENT OFFICE"), and which is, on the date of
this Agreement, ______________, New York, New York ____________ , Attention:
[Corporate Trust Department], or at the office of any successor Warrant Agent as
provided in Section 5.03, for another Global Warrant Certificate of like tenor
and representing a like number of unexercised Warrants.
SECTION 1.05 WARRANT CERTIFICATES. Any Warrant Certificates issued in
accordance with Section 1.01(a) shall be in registered form substantially in the
form set forth in EXHIBIT A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are necessary or desirable for individual
Warrant Certificates, and may represent any integral multiple of Warrants. The
Warrant Certificates may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) and are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be listed
or of the Depository, or to conform to usage. Warrant Certificates shall be
signed on behalf of the Company upon the same conditions, in substantially the
same manner and with the same effect as the Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company, shall
be delivered to the Warrant Agent, which shall manually countersign and deliver
the same to or upon the written order of the Company. Each Warrant Certificate
shall be dated the date of its countersignature.
7
No Warrant 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.
Warrant Certificates delivered in exchange for the Global Warrant
Certificate shall be registered in such names and addresses (including tax
identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in
the City of New York a register (the register maintained in such office and in
any other office or agency maintained by or on behalf of the Company for such
purchase being herein sometimes collectively referred to as the "WARRANT
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Warrant Certificates and of
transfers of Warrant Certificates. The Warrant Agent is hereby appointed
"WARRANT REGISTRAR" for the purpose of registering Warrant Certificates and
transfers of Warrant Certificates as herein provided.
For purposes of this Section 1.05, a "WARRANTHOLDER" of a Warrant
Certificate at any particular time is the person in whose name such Warrant
Certificate is registered in the Warrant Register at such time.
Upon surrender for registration of transfer of any Warrant Certificate at
an office or agency of the Company maintained for such purpose, the Company
shall execute, and the Warrant Agent shall countersign and deliver, in the name
of the designated transferee or transferees, one or more new Warrant
Certificates of any authorized denominations and representing Warrants of a like
aggregate number.
At the option of the Warrantholder, Warrant Certificates may be exchanged
for other Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number, upon surrender of the Warrant Certificates
to be exchanged at such office or agency. Whenever any Warrant Certificates are
so surrendered for exchange, the Company shall execute, and the Warrant Agent
shall countersign and deliver, the Warrant Certificates which the Warrantholder
making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations of the Company, and entitled to the same
benefits under this Warrant Agreement, as the Warrant Certificates surrendered
upon such registration of transfer or exchange.
8
Every Warrant Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Warrant
Agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Warrant Registrar duly executed, by
the Warrantholder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Warrant Certificates, 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 registration of transfer or exchange of Warrant
Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent,
the Company shall execute and the Warrant Agent shall countersign and deliver in
exchange therefor a new Warrant Certificate of like tenor representing Warrants
of a like number and bearing a number not contemporaneously outstanding.
If there shall be delivered by a Warrantholder to the Company and the
Warrant Agent (1) evidence to their satisfaction of the destruction, loss or
theft of any Warrant Certificate and (2) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
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 upon its request the Warrant Agent shall countersign and
deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a
new Warrant Certificate of like tenor representing Warrants of a like number and
bearing a number not contemporaneously outstanding. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) connected therewith.
In case the Warrants evidenced by any such mutilated, destroyed, lost or
stolen Warrant Certificate have been exercised, or have been or are about to be
deemed to be exercised, the Company in its discretion may, instead of issuing a
new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
Every new Warrant Certificate issued pursuant to this Section 1.05 in
lieu of any destroyed, lost or stolen Warrant Certificate shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant Certificates duly
issued hereunder.
9
The provisions of this Section 1.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name such Warrant Certificate is
registered as the owner of such Warrant Certificate for all purposes hereunder
whatsoever, whether or not such Warrant Certificate be exercised or deemed to be
exercised and neither the Company, the Warrant Agent nor any agent of the
Company or the Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for exercise, registration of
transfer or exchange shall, if surrendered to any person other than the Warrant
Agent, be delivered to the Warrant Agent and shall be promptly canceled by it.
The Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant Certificates
so delivered shall be promptly canceled by the Warrant Agent. No Warrant
Certificates shall be countersigned in lieu of or in exchange for any Warrant
Certificates canceled as provided in this Section 1.05, except as expressly
permitted by this Warrant Agreement. All canceled Warrant Certificates held by
the Warrant Agent shall be disposed of as directed by the Company.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 DURATION OF WARRANTS; MINIMUM EXERCISE AMOUNTS; NOTICE OF
EXERCISE. Subject to the limitations described herein, each Warrant evidenced by
the Global Warrant Certificate may be irrevocably exercised in whole but not in
part on any New York Business Day from its date of issuance until 3:00 P.M., New
York City time, five New York Business Days prior to _____________, 20__ (the
"EXPIRATION DATE") or until earlier automatic exercise as provided in Section
2.03. Except in the case of automatic exercise, each Warrant may be exercised by
written notice to the Warrant Agent from a Depository Participant acting on
behalf of the beneficial owner of such Warrant (each a "HOLDER"); PROVIDED,
HOWEVER, that notices of exercise are subject to rejection by the Warrant Agent
as provided herein. Not fewer than [2,000] Warrants may be exercised by or on
behalf of any one Holder at any one time, except that no such minimum exercise
amount shall apply in the case of automatic exercise on the Expiration Date or
earlier automatic exercise as provided in Section 2.03. Irrevocable notice of
exercise to the Warrant Agent shall be in the form set forth in EXHIBIT B hereto
and shall be sent to the Warrant Agent in writing (which shall include facsimile
transmissions) at its address set forth in such form of notice or at such other
address as the Warrant Agent may specify from time to time. As used herein, "NEW
YORK BUSINESS DAY" means any day other than a Saturday or a Sunday or a day on
which commercial banks in the City of New York are
10
required or authorized to be closed. Except as provided in Section 2.02(b),
the Warrant Agent shall be entitled to rely conclusively on any notice of
exercise received by it with no duty of inquiry by the Warrant Agent.
SECTION 2.02 EXERCISE AND DELIVERY OF WARRANTS.
(a) Except in the case of automatic exercise on the
Expiration Date or earlier automatic exercise as provided in Section 2.03 of
this Agreement and subject to Section 2.02(b)(i) of this Agreement, the
exercise date (the "EXERCISE DATE") for a Warrant shall be the New York
Business Day next succeeding the date on which the Warrant Agent has received
written irrevocable notice of exercise in good form at or prior to 3:00 P.M.,
New York City time; and if the Warrant Agent shall receive such notice of
exercise after 3:00 P.M., New York City time, on such date, such notice shall
be deemed to have been received at or prior to 3:00 P.M., New York City time,
on the next succeeding New York Business Day, and in such event the Exercise
Date shall be the second New York Business Day succeeding the date on which
the Warrant Agent actually received such notice of exercise. Any notice of
exercise received after 3:00 P.M., New York City time, on the fifth New York
Business Day preceding the Expiration Date or, if earlier, any Delisting Date
(as defined in Section 2.03(a)) shall be void and of no effect and shall be
deemed not to have been delivered.
(b) Following receipt of a written irrevocable notice of
exercise in good form, the Warrant Agent shall (1) promptly verify that the
entity that executed such notice is listed as a Depository Participant in the
most recent published edition of the Depository's Eligible Corporate
Securities Book (or comparable publication of a successor Depository) and, if
such entity is not listed therein, the Warrant Agent shall make reasonable
efforts to obtain telephonic verification from the Depository's Planning
Department (telephone no. ________) (or comparable department of a successor
Depository) that such entity is a Depository Participant, and if the Warrant
Agent is unable through the above-described procedures to verify that such
entity is a Depository Participant, the Warrant Agent shall reject the notice
of exercise; (2) notify the Company by 5:00 P.M., New York City time, on the
New York Business Day such notice of exercise is received (or deemed to have
been received) of the number of Warrants in respect of which exercise
notices, not rejected pursuant to clause (1) above, were received after 3:00
P.M., New York City time, the preceding New York Business Day and at or prior
to 3:00 P.M., New York City time, on such date; (3) obtain the Spot Rate (as
defined in Section 2.02(f)) and determine the Case Settlement Value of the
exercised Warrants in the manner described in Section 2.02(f); (4) advise the
Company by 5:00 P.M., New York City time, on the Exercise Date of the amount
payable in respect of the exercise of such Warrants, and of the Spot Rate and
Case Settlement Value with respect to such Warrants, and send notice of
confirmation of exercise in the form set forth in EXHIBIT B hereto to such
Depository Participant; and (5) promptly deliver a copy of such notice of
exercise to the Company and advise the Company of such other matters relating
to the exercised Warrants as the Company shall reasonably request. Any notice
to be given to the Company by the Warrant Agent pursuant to this Section 2.02
or Section 2.03 shall be by telephone and shall be promptly confirmed in
writing. Any notice to be given to the Spot Rate Reference Bank (as defined
in
11
Section 2.02(f)) pursuant to this Section 2.02 or Section 2.03 shall be by
facsimile transmission to the address of the Spot Rate Reference Bank set
forth in Section 6.03.
(c) Provided that the Company has made adequate funds available
to the Warrant Agent in a timely manner, which shall, in no event, be later that
3:00 P.M., New York City time on the second New York Business Day (the
"SETTLEMENT DATE") following an Exercise Date of Warrants, the Warrant Agent
will be responsible for making its payment available to the Depository in the
form of a treasurer's check or official bank check, after 3:00 P.M., New York
City time, but prior to the close of business, on such Settlement Date, such
payment to be in the amount of the aggregate Cash Settlement Value in respect of
such exercised Warrants for which delivery has been accepted by the Warrant
Agent.
(d) The Warrant Agent shall cause its records, which may be
kept electronically, to be marked to reduce the number of Warrants evidenced by
the Global Warrant Certificate, by the Warrants delivered to the Warrant
Agent's Depository Participant Account (entitled _________), or such other
account of the Warrant Agent at the Depository as the Warrant Agent shall
designate in writing to the Company (the "WARRANT ACCOUNT"), promptly after such
delivery.
(e) If any Depository Participant fails to transfer Warrants
with respect to which it delivered a notice of exercise (a "FAILED DELIVERY") by
11:30 A.M., New York City time, on the Settlement Date therefor, the Warrant
Agent shall notify the Company (and, if requested by the Company in writing, a
designated agent of the Company) of such Failed Delivery and the number of
Warrants to which it relates by ____ P.M., New York City time, on such
Settlement Date by telephone, promptly confirmed in writing by transmitting to
the Company (by telecopy or other similar rapid communication system) a copy of
the notice of exercise to which such Failed Delivery relates. At such times as
the Warrants are evidenced by a Global Warrant Certificate, a Failed Delivery
shall be deemed to occur as a result of a failure by a Depository Participant to
take any action required to effectuate a transfer of the Warrants on the records
of the Depository.
(f) Except as provided in section 2.03, "CASH SETTLEMENT VALUE"
of an exercised Warrant is an amount stated in U.S. dollars which is the greater
of (1) zero and (2) the amount computed by subtracting [from 50](1) [50 from]
(2) an amount equal to 50 times a fraction, the numerator of which is the Spot
Rate on the Exercise Date and the denominator of which is ______________ (the
"STRIKE PRICE"). The "SPOT RATE" on such Exercise Date shall mean the offered
spot rate of _________ U.S. dollars for ______ as quoted by _________ (the
"SPOT RATE REFERENCE BANK") at 10:00 A.M., New York City time, on such date
or, if such bank is not quoting such rate at such time, the rate quoted by
such other leading bank in the foreign exchange markets as may be selected by
the Company in good faith and notified to the
------------------------------
(1) In the case of Put Warrants
(2) In the case of Call Warrants
12
Warrant Agent. The Spot Rate shall be calculated to ______decimal places.
References in this Agreement to "U.S. dollars," "U.S. $" or "$" are to the
currency of the United States of America. References to _______________ or
____________ are to the currency of __________________
SECTION 2.03 AUTOMATIC EXERCISE OF THE WARRANTS. (a) All Warrants with
respect to which no accepted notice of exercise in good form has been received
by the Warrant Agent by 3:00 P.M., New York City time, on the fifth New York
Business Day preceding the earliest to occur of (1) the Expiration Date, (2) the
close of business on the New York Business Day on which the Warrants are
delisted from the ____________ Stock Exchange, and (3) the close of business on
the New York Business Day that the Warrants are permanently suspended from
trading on the ____________ Stock Exchange (the effective date of any such
delisting or permanent suspension, the "DELISTING DATE") will be automatically
exercised, without any required delivery of notice of exercise from any relevant
Depository Participant to the Warrant Agent. Such Expiration Date or Delisting
Date, as the case may be, shall be the Exercise Date for such Warrants and the
Spot Rate and Cash Settlement Value of such Warrants shall be determined as of
the New York Business Day following such Exercise Date. The Company will advise
the Warrant Agent of the date of any expected delisting or permanent suspension
of trading of the Warrants as soon as is practicable and will immediately inform
the Warrant Agent after the Company has received notice that such delisting or
suspension has occurred, but in no event will notice of such delisting or
suspension be given to the Warrant Agent later than 5:00 P.M., New York City
time, on the New York Business Day preceding the date that such delisting or
suspension occurs.
(b) By 5:00 P.M., New York City time, on the fifth New York
Business Day preceding the Expiration Date or the Delisting Date, as the case
may be, the Warrant Agent shall advise the Company of the number of unexercised
Warrants outstanding after 3:00 P.M., New York City time, on such day. The
Warrant Agent shall, on the New York Business Day following the Expiration Date
or the Delisting Date, as the case may be, (1) obtain the Spot Rate and
determine the Cash Settlement Value (in the manner provided in paragraph (f) of
Section 2.02, except that the Spot Rate shall be the Spot Rate on the New York
Business Day next succeeding the Expiration Date or the Delisting Date, as the
case may be) of the unexercised Warrants, (2) advise the Company of the Spot
Rate and the Cash Settlement Value of the unexercised Warrants evidenced by the
Global Warrant Certificate, and (3) advise the Company of such other matters
relating to the unexercised Warrants as the Company shall reasonably request.
Provided that the Company has made adequate funds available to the Warrant Agent
in a timely manner which shall, in no event, be later than 3:00 P.M., New York
City time, on the third New York Business Day following the Expiration Date or
the Delisting Date, as the case may be, the Warrant Agent will make its
treasurer's check or an official bank check available to the Depository against
receipt by the Warrant Agent from the Depository of the Global Warrant
Certificate on the third New York Business Day following the Expiration Date,
such check to be in the amount of the aggregate Cash Settlement Value in respect
of the number of unexercised Warrants evidenced by the Global Warrant
Certificate at the close of business on the Expiration Date. The Warrant Agent
shall
13
promptly cancel the Global Warrant Certificate following its receipt thereof
from the Depository.
(c) The Company will notify the Holders, or will cause the
Holders to be notified, as promptly as is practicable of any expected delisting
or suspension of trading of the Warrants.
SECTION 2.04 COVENANT OF THE COMPANY. The Company covenants, for the
benefit of the Holders, that it will not seek the delisting of the Warrants, or
suspension of their trading on, the ___________ Stock Exchange.
SECTION 2.05 RETURN OF GLOBAL WARRANT CERTIFICATE. At such time as the
Warrants have been exercised, deemed automatically exercised or otherwise
canceled, the Warrant Agent shall return the canceled Global Warrant Certificate
to the Company.
SECTION 2.06 RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS. Any money
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Value of any Warrants and not applied but remaining unclaimed for two
years after the date upon which such Cash Settlement Value shall have become due
and payable, shall be repaid by the Warrant Agent to the Company and the Holder
of such Warrants shall thereafter look only to the Company for any payment which
such Holder may be entitled to collect and all liability of the Warrant Agent
with respect to such money shall thereupon cease; PROVIDED, HOWEVER, that the
Warrant Agent before making such repayment, may at the expense of the Company
notify the Holders concerned that said money has not been so applied and remains
unclaimed and that after a date named therein any unclaimed balance of said
money then remaining will be returned to the Company.
SECTION 2.07 DESIGNATION OF AGENT FOR RECEIPT OF NOTICE. The Company may
from time to time designate in writing to the Warrant Agent a designee for
receipt of all notices required to be given by the Warrant Agent pursuant to
this Article II and all such notices thereafter shall be given in the manner
herein provided by the Warrant Agent to such designee.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01 HOLDER OF WARRANT MAY ENFORCE RIGHTS. Notwithstanding any
of the provisions of this Agreement, any Holder, without the consent of the
Warrant Agent, may, in and for his own behalf, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise, and to receive payment for,
his Warrants as provided in the Global Warrant Certificate and in this
Agreement.
14
SECTION 3.02 MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE. If at
any time there shall be a merger, consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of the Company, then in any
such event the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrants as the Company; the Company shall thereupon be relieved of
any further obligation hereunder or under the Warrants, and, in the event of any
such sale, transfer, conveyance (other than by way of lease) or other
disposition, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue, either in its own
name or in the name of the Company, a new Global Warrant Certificate
representing the Warrants not theretofore exercised, in exchange and
substitution for the Global Warrant Certificate theretofore issued. Such Global
Warrant Certificate shall in all respects have the same legal rank and benefit
under this Agreement as the Global Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Global Warrant
Certificate had been issued at the date of the execution hereof. In any case of
any such consolidation, merger, sale, transfer, conveyance or other disposition
of substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Global Warrant
Certificate as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, transfer,
conveyance or other disposition of substantially all of the assets of the
Company complies with the provisions of this Section 3.02 and that the
assumption of this Agreement by the successor or assuming corporation is
effective.
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01 CANCELLATION OF WARRANTS. In the event the Company shall
purchase or otherwise acquire Warrants, such Warrants may, at the option of the
Company and upon notification to the Warrant Agent, be surrendered free through
a Depository Participant for credit to the Warrant Account and if so credited
the Warrant Agent shall promptly note the cancellation of such Warrants by
notation on the records of the Warrant Agent.
SECTION 4.02 TREATMENT OF HOLDERS. The Company, the Warrant Agent and
any agent of the Company or the Warrant Agent may deem and treat the person in
whose name the Global Warrant Certificate shall be registered in the records of
the Warrant Agent as the absolute owner of such Global Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Company nor the Warrant
15
Agent, nor any agent of the Company or the Warrant Agent shall be affected by
any notice to the contrary, except that the Warrant Agent and the Company
shall be entitled to rely on and act pursuant to instructions of Depository
Participants as contemplated by Article II of this Agreement. This Section
4.02 shall be without prejudice to the rights of Holders as described
elsewhere herein.
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 Global Warrant Certificate upon the terms and subject to the conditions
set forth herein and in the Global Warrant Certificate; and
_________________________________________________ hereby accepts such
appointment. The Warrant Agent shall have the power and authority granted to
and conferred upon it in the Global Warrant Certificate and hereby and such
further power 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 power and authority contained in the Global
Warrant Certificate 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 and of the Global Warrant Certificate, 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 Warrants 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 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 such Warrant Agent hereunder or with respect
to the Global Warrant Certificate, including the reasonable costs and expenses
of defending against any claim or liability in connection with the exercise or
performance at any time of its power or duties hereunder. The obligations of
the Company under this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) AGENT OF THE COMPANY. In acting under this Warrant
Agreement and in connection with the Global Warrant Certificate, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for
16
or with any of the owners or Holders of the Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Global 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, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrants, with the same rights that it would have if it were
not the Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it 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 Warrants
or other obligations of the Company as freely as if it were not the Warrant
Agent, officer, director, employee or other agent.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Global Warrant
Certificate.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or the Global
Warrant Certificate.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Global Warrant Certificate (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 Global Warrant
Certificate specifically set forth and no implied duties or obligations shall be
read into this Agreement or the Global Warrant Certificate against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment of which
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
the Global Warrant Certificate countersigned by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of any proceeds of the Global Warrant Certificate or any exercise of the
Warrants evidenced thereby. The Warrant
17
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or
in the Global Warrant Certificate or in the case of the receipt of any
written demand from a Holder of a Warrant with respect to such default,
except as provided in Section 6.02 hereof, 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, REMOVAL AND APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders from time to
time of the Warrants, that there shall at all times be a Warrant Agent
hereunder until all the Warrants are no longer outstanding.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which it desires its resignation to become effective; provided that,
without the consent of the Company, such date shall not be less than three
months after the date on which such notice is given. 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 date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company of a successor Warrant Agent (which
shall be a banking institution organized under the laws of the United States of
America, or any state thereof and having an office or an agent's office south of
▇▇▇▇▇▇▇▇ Street in the Borough of Manhattan, the City of New York) by an
instrument in writing filed with such successor Warrant Agent and the acceptance
of such appointment by such successor Warrant Agent pursuant to Section 5.03(d).
In the event a successor Warrant Agent has not been appointed and accepted its
duties within three months of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. 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 and shall survive the
termination of this Agreement.
(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
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy, or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of 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 of it or all or any substantial part of its property shall
be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, 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
18
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded 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
succeeding to all or substantially all of the corporate trust 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 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, the Company shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States of America or a State thereof, and such successor corporation
shall expressly assume the obligations of the Company hereunder.
SECTION 6.02 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption 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 predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants.
19
SECTION 6.03 AMENDMENT. (a) This Agreement and the Global Warrant
Certificate may be amended by the parties hereto, without the consent of the
Holder of the Global Warrant Certificate or the Holders, for the purpose of
curing any ambiguity, or curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, for the purpose of
appointing a successor Depository in accordance with paragraph (d) of Section
1.01, for the purpose of issuing Warrants in definitive form in accordance
with paragraph (a) of Section 1.01, or in any other manner which the Company
may deem to be necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Warrants.
Notwithstanding anything in this Section 6.03 to the contrary, this Agreement
may not be amended to provide for the countersigning by the Warrant Agent of
one or more Global Warrant Certificates evidencing in excess of
____________________ warrants originally issued.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Global Warrant Certificate, with the consent of the Holders
holding not fewer than a majority in number of the then outstanding unexercised
Warrants affected by such modification or amendment, for any purpose; PROVIDED,
HOWEVER, that no such modification or amendment that increases the Strike Price
in the case of a Call Warrant, or decreases the Strike Price in the case of a
Put Warrant, shortens the period of time during which the Warrants may be
exercised, or otherwise materially and adversely affects the exercise rights of
the Holders or reduces the percentage of the number of outstanding Warrants the
consent of the Holders of which is required for modification or amendment of
this Agreement or the Global Warrant Certificate may be made without the consent
of each Holder affected thereby.
SECTION 6.04 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Holder pursuant to the provisions of the Global Warrant Certificate, the
Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.05 ADDRESSES FOR NOTICES. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[name of Warrant Agent], [address], New York (facsimile: _____________)
(telephone: _____________), Attention: Corporate Trust Department; any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to ▇▇▇▇ ▇▇▇ Corporation,
_____________________________ (facsimile: _____________) (telephone:
_____________), Attention: _____________, with a copy to the _____________;
and any communications from the Warrant Agent to the Spot Rate Reference Bank
with respect to this Agreement shall be addressed to _____________ [address],
Attention: Corporate Foreign Exchange (facsimile: _____________) (telephone:
_____________), Attention: _____________ (or such other address as shall be
specified in writing by the Warrant Agent, the Company or the Spot Rate
Reference Bank, respectively).
20
SECTION 6.06 NOTICES TO HOLDERS. The Company or the Warrant Agent may
cause to have notice given to the Holders of Warrants by providing the
Depository with a form of notice to be distributed by the Depository to
Depository Participants in accordance with the custom and practices of the
Depository.
SECTION 6.07 GOVERNING LAW. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION 6.08 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 the ____________ Stock Exchange and securities acts filings
under United States Federal and state laws (including, without limitation, the
maintenance of the effectiveness of a registration statement in respect of the
Warrants under the Securities Act of 1933), which may be or become required in
connection with the exercise of the Warrants and the original issuance and
delivery of the Warrants.
SECTION 6.09 PERSONS HAVING RIGHTS UNDER 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 Warrant Agent,
the registered Holder of the Global Warrant Certificate and the Holders any
right, remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Warrant Agent
and their successors and of the registered Holder of the Global Warrant
Certificate and the Holders.
SECTION 6.10 HEADINGS. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 6.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
SECTION 6.12 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 [and at ____________], for inspection by the registered holder of
the Global Warrant Certificate, Depository Participants and Holders.
21
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
▇▇▇▇ ▇▇▇ CORPORATION
By:_______________________________
[Title]
[SEAL]
Attest:
______________________________
[Assistant] Secretary
[name of Warrant Agent]
By:_______________________________
[Title]
[SEAL]
Attest:
______________________________
[Assistant] Secretary
22
EXHIBIT A
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
NO. CUSIP NO._____
GLOBAL WARRANT CERTIFICATE
REPRESENTING
UP TO ____________ CURRENCY [PUT/CALL] WARRANTS
EXPIRING __________, 20__
▇▇▇▇ ▇▇▇ CORPORATION
This certifies that [CEDE & Co.] or registered assigns is the registered
Holder of ___________Currency [Call/Put] Warrants (the "WARRANTS") or such
lesser amount as is indicated in the records of [name of Warrant Agent], as
Warrant Agent. Each Warrant entitles the beneficial owner thereof (a "HOLDER"),
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to receive from ▇▇▇▇ ▇▇▇ Corporation (the "COMPANY") the cash
settlement value (the "CASH SETTLEMENT VALUE") of the right to [sell/purchase]
_______ at a price of U.S. [$50], as further described below. Holders will not
be entitled to any interest on any Cash Settlement Value to which they are
otherwise entitled (unless the Company shall default in the payment of such Cash
Settlement Value). The Warrants may be exercised at or prior to 3:00 P.M., New
York City time, on any New York Business Day from their date of issuance until
3:00 P.M., New York City time, on the fifth New York Business Day preceding (i)
their expiration on _________, 20__ (the "EXPIRATION DATE") or (ii) the date of
earlier automatic exercise as further described below and as provided in the
Warrant Agreement. Except in the case of automatic exercise, not fewer than
[2,000] Warrants may be exercised by or on behalf of any one Holder on any one
day. Reference herein to "U.S. dollars" or "U.S. $" are to the currency of the
United States of America. References to____________ or ____________ are to the
currency of ____________. The term "NEW YORK BUSINESS DAY," as used herein,
means any day other than a Saturday or Sunday or a day on which commercial banks
in New York City are required or authorized to be closed.
This Global Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of ____________, 20__ (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 all beneficial owners of the Warrants evidenced by this Global
Warrant Certificate and the Holder of this Global Warrant Certificate consent by
acceptance hereof by the Depository (as defined below). Copies of the Warrant
Agreement are on file at the principal corporate trust office of the Warrant
Agent in New York City. Except as provided in the Warrant Agreement, Holders
will not be entitled to receive
A-1
definitive Warrants evidencing their Warrants. Warrant holdings will be held
through a depository selected by the Company which initially is The
Depository Trust Company (the "DEPOSITORY," which term, as used herein,
includes any successor depository selected by the Company) as further
provided in the Warrant Agreement.
Capitalized terms including herein but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
The Cash Settlement Value of an exercised Warrant will be an amount
stated in U.S. dollars which is the greater of (i) zero and (ii) the amount
computed by subtracting [from 50](1) [50 from](2) an amount equal to 50 times a
fraction, the numerator of which is the Spot Rate on the Exercise Date and the
denominator of which is ___________________ (except in the case of automatic
exercises as described below). The "SPOT RATE" on any date will be the offered
spot rate of ____________ U.S. dollars for _______________________ as quoted by
____________ at 10:00 A.M., New York City time, on such date or, if such bank is
not quoting such rate at such time, the rate quoted by such other leading bank
in the foreign exchange markets as may be selected by the Company in good faith
and notified to the Warrant Agent.
Subject to the provisions hereof and of the Warrant Agreement, each
Warrant shall be deemed to be exercised on the next New York Business Day after
the New York Business Day on which the notice of exercise in good form is
received by the Warrant Agent at or prior to 3:00 P.M., New York City time, on
such date (the "EXERCISE DATE"). If the Warrant Agent receives such notice of
exercise after 3:00 P.M., New York City time, on such date, such notice shall be
deemed to have been received at or prior to 3:00 P.M., New York City time, on
the next New York Business Day, and in such event the Exercise Date shall be the
second New York Business Day succeeding the date on which the Warrant Agent
actually received such notice. If the notice of exercise is not rejected as
provided in the Warrant Agreement, the Warrant Agent will obtain the Spot Rate
and determine the Cash Settlement Value of the exercised Warrants in the manner
described in the Warrant Agreement. Any notice of exercise received after 3:00
P.M., New York City time, on the fifth New York Business Day preceding the
Expiration Date or the date of earlier automatic exercise as further described
below and as provided in the Warrant Agreement shall be void and of no effect
and shall be deemed not to have been delivered. Provided that the Company has
made adequate funds available to the Warrant Agent in a timely manner, the
Warrant Agent will be responsible for making its payment available by
treasurer's check or official bank check to the Depository on the second New
York Business Day following an Exercise Date (the "SETTLEMENT DATE"), all as
provided in the Warrant Agreement, such payment to be in the amount of the
aggregate Cash Settlement Value in respect of such exercised Warrants for which
delivery has been accepted by the Warrant Agent. If any Depository Participant
fails to transfer by 11:30 A.M., New York City time, on the Settlement Date the
Warrants with respect to which it
---------------------------------------
(1) In the case of Put Warrants.
(2) In the case of Call Warrants.
A-2
delivered a notice of exercise, such Depository Participant will be liable to
the Company as provided in the notice of exercise and be subject to all of
the provisions set forth therein and in the Warrant Agreement.
The Warrant Agent will promptly cause its records to be marked to reduce
the number of unexercised Warrants evidenced by this Global Warrant Certificate
by the number of Warrants transferred to the Warrant Agent's Depository
Participant Account (No. ___ ) from time to time.
All Warrants with respect to which no notice of exercise in good form has
been received by the Warrant Agent by 3:00 P.M., New York City time, on the
fifth New York Business Day preceding the earliest to occur of (1) the
Expiration Date, (2) the close of business on the New York Business Day on which
the Warrants are delisted from the ____________ Stock Exchange, and (3) the
close of business on the New York Business Day that the Warrants are permanently
suspended from trading on the ____________ Stock Exchange will be automatically
exercised, without any required delivery of notice of exercise from the
Depository Participant to the Warrant Agent, in the case of clause (1), as of
the Expiration Date, in the case of clause (2), as of the date of such
delisting, and, in the case of clause (3), as of the date of such suspension.
The Cash Settlement Value of such Warrants will be determined as provided above,
except that, in the case of clause (1), the Spot Rate shall be the Spot Rate on
the New York Business Day next succeeding the Expiration Date and, in the case
of clauses (2) and (3), the Spot Rate shall be the Spot Rate on the New York
Business Day following the date of such delisting or suspension, as the case may
be. The Settlement Date with respect to any such automatically exercised
Warrants shall be the third New York Business Day following the Expiration Date
or the date of such delisting or permanent suspension.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced hereby, and neither
the Company nor the Warrant Agent nor any agent of the Company or the Warrant
Agent shall be affected by any notice to the contrary, subject to certain
provisions of the Warrant Agreement, except that the Company and the Warrant
Agent shall be entitled to rely on and act pursuant to instructions of
Depository Participants as contemplated herein and in the Warrant Agreement.
Subject to the terms of the Warrant Agreement, upon due presentment for
registration of transfer of this Global Warrant Certificate at the principal
corporate trust office of the Warrant Agent in New York City, the Company shall
execute and the Warrant Agent shall countersign and deliver in the name of the
designated transferee a new Global Warrant Certificate of like tenor and
evidencing a like number of unexercised Warrants as evidenced by this Global
Warrant Certificate at the time of such registration of transfer and shall be
issued to
A-3
the designated transferee in exchange for this Global Warrant Certificate,
subject to the limitations provided in the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Global Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of _____________, 20__
▇▇▇▇ ▇▇▇ CORPORATION
By__________________________________
[title]
[SEAL]
Attest_______________________________
[title]
Countersigned on the date above written:
[name of Warrant Agent],
as Warrant Agent
By_______________
[title]
A-5
FORM OF TRANSFER OF GLOBAL WARRANT CERTIFICATE
________________________________, as Warrant Agent
Corporate Trust Department
[address]
(Telex: ___________)
(Facsimile: ____________)
____________________________________, the registered Holder of the Global
Warrant Certificate representing all unexercised ▇▇▇▇ ▇▇▇ Corporation Currency
[Put/Call] Warrants Expiring _____________, 20__, hereby requests the transfer
of such Global Warrant Certificate to _________________________.
Date: ______________________ [NAME OF REGISTERED HOLDER]
By______________________________
A-6
EXHIBIT B
FORM OF IRREVOCABLE NOTICE OF EXERCISE
__________________________________,
as Warrant Agent
[address]
Attention: [Corporate Trust Department]
(Telex: ____________________)
(Facsimile: ____________________)
Re: Exercise of ▇▇▇▇ ▇▇▇ Corporation Currency [Put/Call] Warrants
Expiring _________________________ , 20_____ ("WARRANTS")
1. We refer to the Warrant Agreement dated as of __________________,
20__ (the "WARRANT AGREEMENT") between ▇▇▇▇ ▇▇▇ Corporation (the "COMPANY") and
[name of Warrant Agent] (the "WARRANT AGENT"). On behalf of certain clients,
each of whom is exercising no fewer than [2,000] Warrants and whose Warrants are
held in our name, we hereby irrevocably exercise ________ Warrants (the
"EXERCISED WARRANTS"). We hereby certify that, at the time this notice is
delivered to you, we hold in our name on behalf of each such client a settled
position of Warrants in an amount at least equal to the number of Warrants that
we are hereby exercising on behalf of such client. We hereby acknowledge that
this Irrevocable Notice of Exercise must be received by you by 3:00 P.M., New
York City time, on the date hereof in order for the Exercise Date of the
Exercised Warrants to be the next succeeding New York Business Day and that if
this Irrevocable Notice of Exercise is received by you after 3:00 P.M., New York
City time, the Exercise Date of the Exercised Warrants shall be the second
succeeding New York Business Day.
2. We hereby certify that we are a participant of [The Depository
Trust Company] (the "DEPOSITORY") with the present right to use and receive its
services.
3. We hereby agree to transfer such Warrants by 11:30 A.M., New York
City time, on the second New York Business Day following the Exercise Date of
the Exercised Warrants (____________, 20__) (the "SETTLEMENT DATE") to the
Warrant Agent's Participant Account No. _____ (the "WARRANT ACCOUNT"). We hereby
acknowledge that once we have delivered this Irrevocable Notice of Exercise to
you in good form we must transfer the Exercised Warrants by 11:30 A.M., New York
City time, on the Settlement Date and, from and after the time this notice is
delivered to you, we will not effect any transactions with respect to the
Exercised Warrants except for the transfer to the Warrant Account of the
Exercised Warrants on the Settlement Date.
B-1
4. We understand and agree that if we fail to transfer any of the
Exercised Warrants by 11:30 A.M., New York City time, on the Settlement Date:
(i) we shall be held liable for any and all damages which may accrue to the
Company in accordance with (a) the rules and procedures of the _______________
Stock Exchange governing the Warrants, and (b) market custom and usage; (ii) we
shall be held liable to our client for, and agree to hold the Company and the
Warrant Agent harmless against any liability resulting from, any and all damages
which may accrue to such client with respect to such failure; (iii) we will
promptly pay to the Company any funds credited to our account in excess of the
aggregate Cash Settlement Value of the Exercised Warrants that we fail to
transfer to the Warrant Account on the Settlement Date; and (iv) we agree that,
at such time as transfer of the Warrants to which this Irrevocable Notice of
Exercise relates is made, the Cash Settlement Value for such Warrants will be
determined in accordance with the Warrant Agreement as if such Warrants had been
timely transferred as required in paragraph 3 above.
Capitalized terms used herein and not defined have the meanings assigned thereto
in the Warrant Agreement.
Dated:___________, 20__
[NAME OF DEPOSITORY PARTICIPANT]
By_________________________________
Authorized Signature
[Address]
Telephone:__________________________
Facsimile:___________________________
Participant Number:___________________
B-2
CONFIRMATION OF EXERCISE
We hereby confirm that the total number of Warrants mentioned above (the
"EXERCISED WARRANTS") have been exercised at a Spot Rate of ______________ per
U.S.$1.00 and that the aggregate Cash Settlement Value of U.S. $ ____________
(U.S. $ ____ per warrant) will be made available to [The Depository Trust
Company] in the form of a treasurer's check or an official bank check for
payment against transfer of Warrants, in New York Clearing House funds, two New
York Business Days after the date hereof.
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement, dated as of _____________,
20__, between ▇▇▇▇ ▇▇▇ Corporation and [name of Warrant Agent], as Warrant
Agent.
Dated: _______________, 20__
[name of Warrant Agent],
as Warrant Agent
By_____________________________
Authorized Officer
NOTICE OF REJECTION
You are hereby notified that we were not able to verify that you
are a participant of [The Depository Trust Company] in the manner, and pursuant
to the procedures, set forth in the Warrant Agreement, dated as of _________,
20__ between ▇▇▇▇ ▇▇▇ Corporation and [name of Warrant Agent], as Warrant Agent.
Accordingly, we have rejected your Irrevocable Notice of Exercise as being
unsatisfactory as to form.
Dated: _______________, 20__
[name of Warrant Agent],
as Warrant Agent
By______________________________
Authorized Officer
B-3