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Exhibit (a)(12)
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WARRANT AGREEMENT
BETWEEN
TOTAL
AND
THE BANK OF NEW YORK
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DATED AS OF JUNE 4, 1999
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TABLE OF CONTENTS
Page
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Section 1. Certain Definitions....................................................................2
Section 2. Appointment of Warrant Agent...........................................................3
Section 3. Form of Warrant Certificates...........................................................3
Section 4. Countersignature and Registration......................................................4
Section 5. Transfer, Split Up, Combination and Exchange of Warrant Certificates;
Mutilated, Destroyed, Lost or Stolen Warrant Certificates..............................4
Section 6. Exercise of Total Warrants; Exercise Price; Expiration Date of Total Warrants..........5
Section 7. Cancellation and Destruction of Warrant Certificates...................................6
Section 8. Reservation and Availability of Total Shares and Total ADSs - Listing..................7
Section 9. Holders of Record of Total ADSs........................................................7
Section 10. Adjustment of Exercise Price, Number of Total ADSs or Number of Total Shares...........8
Section 11. Certification of Adjusted Exercise Price or Number of Total ADSs......................13
Section 12. Reclassification, Consolidation, Merger, Combination, Sale or Conveyance .............13
Section 13. Fractional Total Warrants and Fractional Total ADSs...................................14
Section 14. Right of Action.......................................................................15
Section 15. Agreement of Warrant Certificate Holders..............................................16
Section 16. Warrant Certificate Holder Not Deemed a Stockholder...................................16
Section 17. Concerning the Warrant Agent..........................................................17
Section 18. Merger or Consolidation or Change of Name of Warrant Agent............................17
Section 19. Duties of Warrant Agent...............................................................18
Section 20. Change of Warrant Agent...............................................................20
Section 21. Issuance of New Warrant Certificates..................................................20
Section 22. Purchase of Total Warrants by Total...................................................21
Section 23. Notice of Proposed Actions............................................................21
Section 24. Notices...............................................................................21
Section 25. Supplements and Amendments............................................................22
Section 26. Reports...............................................................................23
Section 27. Successors............................................................................23
Section 28. Benefits of this Warrant Agreement....................................................23
Section 29. Governing Law.........................................................................23
Section 30. Counterparts..........................................................................23
Section 31. Captions..............................................................................23
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WARRANT AGREEMENT
This Warrant Agreement (the "Warrant Agreement") dated as of June 4,
1999, between Total, a societe anonyme organized under the laws of the Republic
of France ("Total"), and The Bank of New York, a New York banking corporation
(the "Warrant Agent").
W I T N E S S E T H
WHEREAS, Total has made an exchange offer (the "Exchange Offer") to
acquire each warrant ("PetroFina Warrant") issued by PetroFina S.A., a societe
anonyme organized under the laws of Belgium ("PetroFina"), pursuant to Warrant
Agreement dated as of August 5, 1998 between PetroFina and Citibank, N.A., a
national bank organized under the laws of the United States.
WHEREAS, in accordance with the Exchange Offer and upon the terms and
subject to the conditions hereinafter set forth, Total will issue, in exchange
for each outstanding PetroFina Warrant properly tendered by the holder thereof a
Total warrant ("Total Warrant") entitling the holder thereof to purchase one
Total American depositary share ("Total ADS"), which represents one-half of one
Total Share. In addition, each Total Share newly issued for the purpose of the
exchange offer will be accompanied by a detached coupon called VVPR-Strip (as
defined below), unless waived.
WHEREAS, upon the terms and subject to the conditions hereinafter set
forth, Total may issue Total Warrants in exchange for PetroFina Warrants
remaining outstanding after the Exchange Offer;
WHEREAS, the Total ADSs will be issued pursuant to a Deposit Agreement
dated as of October 31, 1991, as amended and restated as of July 30, 1993, as
further amended and restated as of May 6, 1999, (the "Deposit Agreement") among
Total, The Bank of New York, in its capacity as Depositary (the "Depositary")
and all holders of Total ADSs issued thereunder; and
WHEREAS, Total wishes the Warrant Agent to act on behalf of Total, and
the Warrant Agent is willing so to act, in connection with the issuance,
transfer, exchange and exercise of Total Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Warrant Agreement, the following terms
have the meanings indicated:
(a) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
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(b) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York City time,
on the next succeeding Business Day.
(c) "Person" shall mean an individual, corporation,
association, partnership, joint venture, trust, limited liability
company, unincorporated organization, government or political
subdivision thereof or governmental agency or other entity.
(d) "Total Share" shall mean each share of common stock of
Total with a nominal value of FF50.
(e) "Trading Day" shall mean, with respect to any security, a
day on which the principal foreign or national securities exchange on
which such securities are listed or admitted to trading is open for the
transaction of business or, if such securities are not listed or
admitted to trading on any foreign or national securities exchange, any
Business Day.
(f) "VVPR-Strip" shall mean a certificate accompanying each
newly issued Total Share issued for the purposes of the Exchange Offer.
A VVPR-Strip entitles its holder who is a tax payer resident of Belgium
or a non-profit organization taxable in Belgium to receive a reduction
from 25% to 15% of the withholding tax rate applicable to future
dividends paid by Total.
SECTION 2. APPOINTMENT OF WARRANT AGENT.
Total hereby appoints the Warrant Agent to act as agent for
Total in accordance with the terms and conditions hereof, and the Warrant Agent
hereby accepts such appointment. Total may, with the prior written consent of
the Warrant Agent (it being understood that the Warrant Agent must act in good
faith whenever it withholds such consent), from time to time appoint such
co-Warrant Agents as it may, in its sole discretion, deem necessary or desirable
upon ten days' prior written notice to the Warrant Agent. The Warrant Agent
shall have no duty to supervise, and shall in no event be liable for, the acts
or omissions of any such co-Warrant Agent.
SECTION 3. FORM OF WARRANT CERTIFICATES.
The certificates evidencing the Total Warrants (the "Warrant
Certificates") (together with the form of election to purchase Total ADSs and
the form of assignment to be printed on the reverse thereof) shall be in
registered form only and shall be substantially in the form of Exhibit 1 hereto
and may have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as Total may deem appropriate and as
are not inconsistent with the provisions of this Warrant Agreement or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto, or to conform to usage. The Warrant Certificates shall be in a machine
readable format and in a form reasonably satisfactory to the Warrant Agent.
Subject to the provisions of Section 21 hereof, each Warrant Certificate, if
issued pursuant to the Exchange Offer, shall be dated the date the exchange is
effective pursuant to the Exchange Offer, and if subsequently issued, shall be
dated the date of such issuance, show the date of countersignature, and on its
face shall specify the number of Total Warrants
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evidenced by such Warrant Certificate. As specified in such Warrant Certificate,
each Total Warrant shall entitle the holder thereof to purchase one Total ADS at
an initial exercise price of US $46.94 (the "Exercise Price"), but the number of
such Total ADSs (and any other securities or property purchasable together
therewith or in lieu thereof as set forth in Sections 10 or 12 hereof) and the
Exercise Price shall be subject to the adjustments as provided herein.
SECTION 4. COUNTERSIGNATURE AND REGISTRATION.
The Warrant Certificates shall be executed on behalf of Total
by any authorized officer of Total, which shall be an officer acting in one of
the capacities set forth in Exhibit A, (an "Authorized Officer") which need not
be the same authorized signatory for all of the Warrant Certificates, either
manually or by facsimile signature. The Warrant Certificates shall be
countersigned by the Warrant Agent, either manually or by facsimile signature,
which need not be the same signatory for all of the Warrant Certificates and
shall not be valid for any purpose unless so countersigned. In case any
Authorized Officer of Total who shall have signed any of the Warrant
Certificates shall cease to be such Authorized Officer of Total before
countersignature by the Warrant Agent and issuance and delivery by Total, such
Warrant Certificates, nevertheless, may be countersigned by the Warrant Agent,
issued and delivered with the same force and effect as though the person who
signed such Warrant Certificate had not ceased to be such officer of Total; and
any Warrant Certificate may be signed on behalf of Total by any person who, at
the actual date of the execution of such Warrant Certificate, shall be an
Authorized Officer of Total authorized to sign such Warrant Certificate,
although at the date of the execution of this Warrant Agreement any such person
was not such an Authorized Officer.
The Warrant Agent will keep or cause to be kept, at one of its
offices in New York City, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of Total Warrants
evidenced on its face by each of the Warrant Certificates and the date of each
of the Warrant Certificates.
SECTION 5. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
WARRANT CERTIFICATES; MUTILATED, DESTROYED, LOST OR
STOLEN WARRANT CERTIFICATES.
Subject to the provisions of Section 13 hereof, at any time
after the Close of Business on the date hereof, and at or prior to the Close of
Business on the Expiration Date (as defined below), any Warrant Certificate or
Warrant Certificates may be transferred, split up, combined or exchanged for
another Warrant Certificate or Warrant Certificates entitling the registered
holder to purchase a like number of Total ADSs as the Warrant Certificate or
Warrant Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Warrant Certificate shall make such request in writing delivered to the Warrant
Agent, and shall surrender to the Warrant Agent the Warrant Certificate or
Warrant Certificates to be transferred, split up, combined or exchanged and in
the case of transfer, the holder shall provide a signature guarantee. Thereupon,
the Warrant Agent shall countersign and deliver to the person entitled thereto a
Warrant Certificate or Warrant Certificates, as the case may be, as so
requested. Total and the Warrant Agent may require payment, by the holder of
Warrants requesting a transfer, split-up, combination or exchange of a Warrant
Certificate, of a sum sufficient to cover any tax or governmental charge that
may be
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imposed in connection with such transfer, split up, combination or exchange of
Warrant Certificates, together with reimbursement to Total and the Warrant Agent
of all reasonable expenses incidental thereto.
Upon receipt by Total and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity
or security in customary form and amount, and reimbursement to Total and the
Warrant Agent of all reasonable expenses incidental thereto, and upon surrender
to the Warrant Agent and cancellation of the Warrant Certificate if mutilated,
Total will make and deliver, or will cause to be made and delivered, a new
Warrant Certificate of like tenor to the registered holder in lieu of the
Warrant Certificate so lost, stolen, destroyed or mutilated.
SECTION 6. EXERCISE OF TOTAL WARRANTS; EXERCISE PRICE;
EXPIRATION DATE OF TOTAL WARRANTS.
(a) Subject to Section 6(c) below, the registered holder of
any Warrant Certificate may exercise the Total Warrants evidenced
thereby only in units of two warrants or any integral multiple thereof
upon surrender of the Warrant Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Warrant
Agent at the Corporate Trust Office of the Warrant Agent set forth in
Section 24 hereof, along with a signature guarantee in the case of a
transfer, and such other and further documentation as the Warrant Agent
may reasonably request, together with payment of the Exercise Price for
each Total ADS as to which the Total Warrants are exercised, at any
time prior to the Close of Business on August 5, 2003, (the "Expiration
Date"). Total Warrants not exercised prior to the Close of Business on
the Expiration Date shall become void and of no value.
(b) The Exercise Price for each Total ADS pursuant to the
exercise of Total Warrants initially shall be $46.94, subject to
adjustment from time to time as provided in Section 10 hereof. The
Exercise Price shall be payable in lawful money of the United States of
America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase duly executed, accompanied by payment of the
Exercise Price, for the Total ADSs to be purchased, and an amount equal
to any applicable tax or governmental charge referred to in Section 8,
by certified check or bank draft payable in lawful money of the United
States of America to the order of the Warrant Agent for Total's
account, the Warrant Agent shall thereupon promptly notify Total in
writing of such exercise.
(d) Upon exercise of any Total Warrants in accordance with the
foregoing provisions, (a) Total shall (i) issue (or cause to be issued)
the requisite number of Total Shares issuable upon such exercise of
such Total Warrants (subject to clause (g) below), (ii) cause such
Total Shares to be deposited with the Custodian (as defined in the
Deposit Agreement) in accordance with the terms of the Deposit
Agreement, (iii) subject to the following paragraph, deliver the
VVPR-Strip to the Warrant Agent with instructions for the Warrant Agent
to deliver any such VVPR-Strips to the record holders exercising Total
Warrants, and (iv) deliver, if applicable, as calculated by the Warrant
Agent in accordance with Section 13(b), the amount of cash to be
delivered in lieu of fractional
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Total ADSs to the holder exercising Total Warrants; and (b) the Warrant
Agent shall (i) request from the Depositary certificates for the number
of whole Total ADSs to be purchased and (ii) after receipt of such
certificates, cause the same to be delivered to or upon the order of
the registered holder of such Warrant Certificate, registered in such
name or names as may be designated by such holder, and, when
appropriate, after receipt promptly deliver such cash to or upon the
order of the registered holder of such Warrant Certificate.
(e) Total shall not deliver the VVPR-Strips to the Warrant
Agent for delivery of same to a record holder exercising Total Warrants
unless such holder requests, in writing, that the Warrant Agent deliver
such VVPR-Strips to or upon his order at a specified address, which is
capable of receiving physical property. If the Warrant Agent does not
receive such written request with the form of election specified in
Section 6(a), the record holder is deemed to waive any rights to such
VVPR- Strips and Total shall cancel the same.
(f) The Warrant Agent is authorized and directed to accept
instructions to exercise Total Warrants and to take delivery of such
Total Warrants through any book-entry system in which the Total
Warrants may be held.
(g) All payments received upon exercise of Total Warrants
shall be promptly delivered to Total by the Warrant Agent as reasonably
instructed in writing by Total. In case the registered holder of any
Warrant Certificate shall exercise less than all Total Warrants
evidenced thereby, a new Warrant Certificate evidencing Total Warrants
equivalent to the Total Warrants remaining unexercised shall be issued
by the Warrant Agent to the registered holder of such Warrant
Certificate or to his duly authorized assigns, subject to the
provisions of Section 13 hereof.
(h) If a Total Warrant is exercised in any year prior to the
payment by Total of its dividend for the immediately preceding fiscal
year, the Total Shares issuable by Total upon such exercise shall be
entitled to the payment of such dividend; provided that the holder of
ADSs is a holder of record on the record date fixed pursuant to Section
4.06 of the Deposit Agreement dated as of October 30, 1991, as amended
and restated as of September 30, 1993, as further amended and restated
as of May 6, 1999 between Total and The Bank of New York, as
Depositary.
SECTION 7. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATES.
All Warrant Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if surrendered to
Total or to any of its agents, be delivered to the Warrant Agent for
cancellation or in canceled form, or, if surrendered to the Warrant Agent, shall
be canceled by it, and no Warrant Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Warrant
Agreement. Total shall deliver to the Warrant Agent for cancellation and
retirement, and the Warrant Agent shall so cancel and retire, any other Warrant
Certificate purchased or acquired by Total otherwise than upon the exercise
thereof. Upon Total's written request, the Warrant Agent shall deliver all
canceled Warrant Certificates to Total.
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SECTION 8. RESERVATION AND AVAILABILITY OF TOTAL SHARES AND
TOTAL ADSs - LISTING.
Total covenants and agrees that it will issue Total Shares
promptly following exercise of the Total Warrants and, when applicable, keep
sufficient cash available for payment in lieu of fractional Total ADSs. Total
further covenants that such Total Shares have been registered under the
Securities Act of 1933.
The Warrant Agent may assume that any Warrant exercised is
permitted to be exercised under applicable law and shall have no liability for
acting in reliance upon such assumption.
Total covenants and agrees that it will use its best efforts
to cause the Total ADSs issuable upon the exercise of the Total Warrants to
continue to be listed on the NYSE (as defined below). To the extent that such
Total ADSs cannot continue to be listed on the NYSE, Total shall use its best
efforts to cause the Total ADSs to be quoted on NASDAQ (as defined below) and to
maintain such listing.
Total covenants and agrees that it will take all such actions
as may be necessary to insure that all Total ADSs delivered upon exercise of
Total Warrants and all of the Total Shares represented thereby shall, at the
time of delivery of the certificates for such Total ADSs, be duly authorized,
validly issued, fully paid and nonassessable.
Total further covenants and agrees that it will pay when due
and payable any and all recording, transfer and similar taxes and charges which
may be payable in respect of the original issuance or delivery of the Warrant
Certificates or certificates evidencing Total ADSs upon exercise of the Warrant
Certificate or other securities or other property issuable hereunder. Total
shall not, however, be required (i) to pay any tax or governmental charge which
may be payable in respect of any transfer involved in (a) the transfer or
delivery of Warrant Certificates or (b) the issuance or delivery of certificates
for Total ADSs in a name other than that of the registered holder of a Warrant
Certificate surrendered for exercise or (ii) to issue or deliver any certificate
for Total ADSs upon the exercise of any Total Warrants until any such tax or
governmental charge shall have been paid (any such tax or governmental charge
being payable by the holder of such Warrant Certificate at the time of
surrender) or until it has been established to Total's satisfaction that no such
tax or governmental charge is due. The Warrant Agent shall not be liable for any
recording, transfer and similar taxes and charges.
SECTION 9. HOLDERS OF RECORD OF TOTAL ADSs.
Upon issuance of ADSs by the Depositary, the holder of a
Warrant Certificate shall be deemed to be the holder of record of the Total ADSs
issuable upon such exercise, notwithstanding that the Total ADS transfer books
shall then be closed or that certificates representing such Total ADSs shall not
then be actually delivered to the holder of such Warrant Certificate.
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SECTION 10. ADJUSTMENT OF EXERCISE PRICE, NUMBER OF TOTAL ADSS
OR NUMBER OF TOTAL SHARES.
The Exercise Price and the number of Total ADSs issuable upon
exercise of each Total Warrant are subject to adjustment from time to time as
provided in this Section 10.
(a) Stock Dividend; Stock Splits; Reverse Stock Splits;
Reclassifications. In the event Total shall at any time after the date
of this Warrant Agreement (i) pay a dividend or make any other
distribution with respect to the Total Shares in shares of any class of
capital stock of Total, (ii) subdivide the outstanding Total Shares
into a greater number of Total Shares, (iii) combine the outstanding
Total Shares into a smaller number of Total Shares, (iv) change the
number of Total Shares represented by each Total ADS, or (v) issue any
shares of capital stock in a reclassification of Total Shares (other
than a reclassification in connection with a consolidation, merger or
other business combination which will be governed by Section 12), the
number and kind of shares of capital stock issuable upon exercise of
each Total Warrant on such date shall be proportionately adjusted so
that the holder of any Total Warrant exercised after such time shall be
entitled to receive ADSs representing the aggregate number and kind of
shares of capital stock which, if such Total Warrant had been exercised
immediately prior to such date and at a time when the Total ADS
transfer books were open, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination, change or reclassification. Whenever the
number of Total ADSs purchasable upon exercise of each Total Warrant is
adjusted pursuant to this Section 10(a), the Exercise Price of such
Total Warrant shall be adjusted so that it shall equal the price
determined by multiplying such Exercise Price immediately prior to such
adjustment by a fraction the numerator of which shall be the number of
Total ADSs purchasable upon the exercise of each Total Warrant
immediately prior to such adjustment and denominator of which shall be
the number of Total ADSs so purchasable immediately thereafter.
(b) Rights; Options; Warrants. In the event Total shall at any
time after the date of this Warrant Agreement issue rights, options,
warrants or convertible or exchangeable securities (other than a
convertible or exchangeable security subject to Section 10(a)) to all
holders of Total Shares (such rights, options, warrants or convertible
or exchangeable securities not being available to holders of Total
Warrants) entitling them to subscribe for or purchase Total Shares at a
price per Total Share (or having a conversion, exercise or exchange
price per share, in the case of a security convertible into or
exercisable or exchangeable for Total Shares) less than the Current
Market Price (as defined in Section 10(e)) per Total Share on the date
of such issuance, the Exercise Price to be in effect after the record
date therefor shall be determined by multiplying (i) the Exercise Price
in effect immediately prior to such record date by (ii) a fraction of
which the numerator shall be the number of Total Shares outstanding on
such record date plus the number of Total Shares which the aggregate
offering price of the total number of Total Shares so to be offered (or
the aggregate initial conversion, exercise or exchange price of the
convertible, exercisable or exchangeable securities so to be offered)
would purchase at such Current Market Price and of which the
denominator shall be the Total Shares outstanding on such record date
plus the number of additional Total Shares to be offered for
subscription or purchase (or into which the convertible, exercisable or
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exchangeable securities so to be offered are initially convertible,
exercisable or exchangeable). In case such subscription price may be
paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of Total, whose determination
shall be described in a statement filed with the Warrant Agent. Upon
each adjustment of the Exercise Price as a result of the calculations
made in this Section 10(b), each Total Warrant outstanding immediately
prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of Total
ADSs (calculated to the nearest one-thousandth) obtained by (i)
multiplying (x) the number of Total ADSs covered by a Total Warrant
immediately prior to such adjustment by (y) the Exercise Price in
effect immediately prior to such adjustment of the Exercise Price and
(ii) dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment of the Exercise Price.
(c) Distributions of Debt, Assets, Subscription Rights or
Convertible Securities. In the event Total shall at any time after the
date of this Warrant Agreement pay a dividend or make a distribution
(other than cash dividends payable in the ordinary course of business
in accordance with French Company Law pursuant to a decision of Total
ordinary general meeting of shareholders and dividends or distributions
referred to in Section 10(a) above) of evidences of indebtedness or
assets or subscription rights or warrants (excluding those referred to
in Section 10(b) above), the Exercise Price to be in effect after the
record date therefor shall be determined by multiplying (i) the
Exercise Price in effect immediately prior to such record date by (ii)
a fraction of which the numerator shall be the Current Market Price (as
defined in Section 10(e)) per share of Total on such record date, less
the fair market value (as determined in good faith by the Board of
Directors of Total, whose determination shall be described in a
statement filed with the Warrant Agent) of such distribution applicable
to one Total Share, and of which the denominator shall be such Current
Market Price per share of Total. Upon each adjustment of the Exercise
Price as a result of the calculations made in this Section 10(c), each
Total Warrant outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Exercise Price, that number of Total ADSs (calculated to the
nearest one-thousandth) obtained by (i) multiplying (x) the number of
Total ADSs covered by a Total Warrant immediately prior to such
adjustment by (y) the Exercise Price in effect immediately prior to
such adjustment of the Exercise Price and (ii) dividing the product so
obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(d) Issuance of Common Stock at Lower Values. In the event
Total shall at any time after the date of this Warrant Agreement, in a
transaction in which Sections 10 (a), (b) and (c) are not applicable,
issue or sell Total Shares, or rights, options, warrants or convertible
or exchangeable securities containing the right to subscribe for or
purchase Total Shares, at a price per Total Share (determined in the
case of such rights, options, warrants or convertible or exchangeable
securities, by dividing (A) the total amount receivable by Total in
consideration of the issuance and sale of such rights, options,
warrants or convertible or exchangeable securities, plus the total
consideration, if any, payable to Total upon exercise, conversion or
exchange thereof, by (B) the total number of Total Shares covered by
such rights, options, warrants or convertible or exchangeable
securities) that is lower than the Current Market Price (as defined in
Section 10 (e)) per
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Total Share in effect immediately prior to such sale or issuance, then
the number of Total ADSs thereafter purchasable upon the exercise of
each Total Warrant shall be determined by multiplying the number of
Total ADSs theretofore purchasable upon exercise of such Total Warrant
by a fraction, the numerator of which shall be the number of Total
Shares outstanding immediately after such sale or issuance and the
denominator of which shall be the number of Total Shares outstanding
immediately prior to such sale or issuance plus the number of Total
Shares which the aggregate consideration received (determined as
provided below) for such sale or issuance would purchase at such
Current Market Price per Total Share. Such adjustment shall be made
successively whenever any such sale or issuance is made. For purposes
of this Section, the Total Shares which the holder of any such rights,
options, warrants or convertible or exchangeable securities shall be
entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance and the
consideration received by Total therefor shall be deemed to be the
consideration received by Total for such rights, options, warrants or
convertible or exchangeable securities, plus the consideration or
premium stated in such rights, options, warrants or convertible or
exchangeable securities to be paid for the Total Shares covered
thereby. Whenever the number of Total ADSs purchasable upon exercise of
each Total Warrant is adjusted pursuant to this Section 10(d), the
Exercise Price of such Total Warrant shall be adjusted so that it shall
equal the price determined by multiplying such Exercise Price
immediately prior to such adjustment by a fraction the numerator of
which shall be the number of Total ADSs purchasable upon the exercise
of each Total Warrant immediately prior to such adjustment and the
denominator of which shall be the number of Total ADSs so purchasable
immediately thereafter.
In case Total shall issue and sell Total Shares or
rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase Total Shares for a
consideration consisting, in whole or in part, of property other than
cash or its equivalent, then in determining the "price per Total Share"
and the "consideration" receivable by or payable to Total for purposes
of the first sentence of this Section 10(d), the Board of Directors of
Total shall determine, in good faith, the fair value of such property,
which determination shall be evidenced by a resolution of the Board of
Directors of Total. In case Total shall issue and sell rights, options,
warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase Total Shares, together with one or more
other securities as part of a unit at a price per unit, then in
determining the "price per Total Share" and the "consideration"
receivable by or payable to for purposes of the first sentence of this
Section 10 (d), the Board of Directors of Total shall determine, in
good faith, the fair value of the rights, options, warrants or
convertible or exchangeable securities then being sold as part of such
unit which determination shall be evidenced by a resolution of the
Board of Directors of Total.
(e) For the purpose of any computation hereunder, the "Current
Market Price" per Total Share on any date shall be deemed to be the
average of the daily Closing Prices per Total Share for the 10
consecutive Trading Days immediately prior to such date. The "Closing
Price" per Total Share for each day shall be the last sale price on the
Paris Stock Exchange. If on any such Trading Day or Days such
securities are not quoted by the Paris Stock Exchange, such Trading Day
or Days shall be replaced for purposes of the foregoing calculation by
the requisite Trading Day or Days preceding the commencement
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of such 10 Trading Day period on which such securities are so quoted.
If the Total Shares are not so listed or traded, the "Current Market
Price" per Total Share shall be deemed to be the fair value per Total
Share as determined in good faith by the Board of Directors of Total,
whose determination shall be described in a statement filed with the
Warrant Agent, based on (a) the most recently completed arm's-length
transaction between Total and a Person other than an affiliate of
Total, the closing of which occurred on such date or within the
three-month period preceding such date, or (b) if no such transaction
shall have occurred on such date or within such three-month period, the
value of the security as determined by an independent financial expert
selected by such Board and reasonably acceptable to the Warrant Agent.
(f) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this Section 10(f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 10 shall be made to the nearest
cent, the nearest two- thousandth of a Total Share or the nearest
one-thousandth of a Total ADS, as the case may be. Notwithstanding the
first sentence of this Section 10(f), any adjustment required by this
Section 10 shall be made no later than the earlier of (i) three years
from the date of the transaction which mandates such adjustment or (ii)
the Expiration Date.
(g) In the event that at any time, as a result of an
adjustment made pursuant to Section 10(a), the holder of any Total
Warrant thereafter exercised shall become entitled to receive any
shares of capital stock of Total other than Total ADSs, the number of
such other shares so receivable upon exercise of any Total Warrant
shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the shares contained in Section 10(a) through (f) inclusive,
and the provisions of Sections 6, 8, 9 and 12 with respect to the Total
ADSs shall apply on like terms to any such other shares.
(h) Expiration of Rights, Options and Conversion Privileges.
Upon the expiration of any rights, options, warrants or conversion or
exchange privileges that have previously resulted in an adjustment
hereunder, if any thereof shall not have been exercised, the Exercise
Price and the number of Total ADSs or Total Shares issuable upon the
exercise of each Total Warrant shall, upon such expiration, be
readjusted and shall thereafter, upon any future exercise, be such as
they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (i)
the only Total Shares so issued were the Total Shares, if any, actually
issued or sold upon the exercise of such rights, options, warrants or
conversion or exchange rights and (ii) such Total Shares, if any, were
issued or sold for the consideration actually received by Total upon
such exercise plus the consideration, if any, actually received by
Total for issuance, sale or grant of all such rights, options, warrants
or conversion or exchange rights whether or not exercised; provided,
however, that no such readjustment shall have the effect of increasing
the Exercise Price by an amount, or decreasing the number of Total ADSs
or Total Shares issuable upon exercise of each Total Warrant by a
number, in excess of the amount or number of the adjustment initially
made in respect to the issuance, sale or grant of such rights, options,
warrants or conversion or exchange rights.
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(i) All Total Warrants originally issued by Total subsequent
to any adjustment made to the Exercise Price hereunder shall evidence
the right to purchase, at the adjusted Exercise Price, the number of
Total ADSs purchasable from time to time hereunder upon exercise of the
Total Warrants, all subject to further adjustment as provided herein.
(j) Irrespective of any adjustment or change in the Exercise
Price or the number of Total ADSs issuable upon the exercise of the
Total Warrants, the Warrant Certificates theretofore and thereafter
issued may continue to express the Exercise Price per Total ADS and the
number of Total ADSs which were expressed upon the initial Warrant
Certificates issued hereunder.
(k) Total agrees that it will not, by amendment of its status
or through reorganization, consolidation, merger, dissolution or sale
of assets, or by any other voluntary act, avoid or seek to avoid the
observance or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by Total.
(l) In any case in which this Section 10 shall require that an
adjustment in the Exercise Price be made effective as of a record date
for a specified event, Total may elect to defer until the occurrence of
such event the issuance to the holder of any Total Warrant exercised
after such record date the Total ADSs or other capital stock of Total
issuable upon such exercise over and above the amount of Total ADSs or
other capital stock of Total, if any, issuable upon such exercise on
the basis of the Exercise Price in effect prior to such adjustment;
provided, however, that Total shall deliver to such holder a due ▇▇▇▇
or other appropriate instrument evidencing such holder's right to
receive such additional Total ADSs or other capital stock of Total upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 10 to the contrary
notwithstanding, Total shall be entitled to make such reductions in the
Exercise Price, in addition to those adjustments expressly required by
this Section 10, as and to the extent that it in its sole discretion
shall determine to be advisable in order that any event treated for
United States federal income tax purposes as a distribution of stock or
stock rights shall not be taxable to the recipients.
(n) If any event occurs as to which the foregoing provisions
of this Section 10 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board of
Directors of Total, fairly and adequately protect the purchase rights
of the Total Warrants in accordance with the essential intent and
principles of such provisions, then such Board shall make such
adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary,
in the good faith opinion of such board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the
effect of increasing the Exercise Price or decreasing the number of
Total ADSs issuable upon exercise of any Total Warrant.
(o) Notwithstanding anything in this Agreement to the
contrary, (i) the issuance of Total Shares, Total ADSs and Total
Warrants in connection with the exchange offers made in the United
States of America and in Belgium pursuant to Total prospectuses dated
May 6, 1999 for such securities, including without limitation,
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issuances as a result of the portion of the offer scheduled to expire
June 4, 1999, or any reopening or extension of such offer, and
issuances of Total securities pursuant to any of the Total Warrants and
(ii) the issuance of Total Shares upon the exercise of options
presently held by Total's employees described in item 12 "Options to
Purchase Securities from Registrant or Subsidiaries" in Total's
Amendment No.1 to Form 20-F for the year ended December 31, 1998, as
filed with the Securities and Exchange Commission on April 30, 1999,
shall not be deemed to require any adjustment pursuant to the terms of
this Section 10 or any notice pursuant to Section 23 of this Agreement.
SECTION 11. CERTIFICATION OF ADJUSTED EXERCISE PRICE OR NUMBER
OF TOTAL ADSs.
Whenever the Exercise Price or the number of Total ADSs
issuable upon the exercise of each Total Warrant is adjusted as provided in
Sections 10 or 12, Total shall (a) promptly prepare a certificate setting forth
the Exercise Price as so adjusted and/or the number of Total ADSs issuable upon
exercise of each Total Warrant as so adjusted, and a brief statement of the
facts accounting for such adjustment, (b) promptly file with the Warrant Agent
and with each transfer agent for the Total ADSs a copy of such certificate and
(c) mail, or cause to be mailed, a brief summary thereof to each holder of a
Warrant Certificate in accordance with Section 24.
The Warrant Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained and shall not be deemed
to have knowledge of such adjustment unless and until it shall have received
such certificate.
SECTION 12. RECLASSIFICATION, CONSOLIDATION, MERGER, COMBINATION,
SALE OR CONVEYANCE.
In case any of the following shall occur while any Total
Warrants are outstanding: (i) any consolidation, merger or combination of Total
with or into another corporation as a result of which holders of Total Shares
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Total Shares, or (ii)
any sale or conveyance of all or substantially all of the property or assets of
Total to any other entity as a result of which holders of Total Shares shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Total Shares, then Total, or such
successor corporation or transferee, as the case may be, shall make appropriate
provision by amendment of this Warrant Agreement or by the successor corporation
or transferee executing with the Warrant Agent an agreement so that the holders
of the Total Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such Total Warrants, to receive the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, combination, sale or conveyance as would be received by a holder of the
number of Total Shares represented by the Total ADSs issuable upon exercise of
such Total Warrant immediately prior to such consolidation, combination, merger,
sale or conveyance.
If the holders of the Total Shares may elect from choices the
kind or amount of securities, cash and other property receivable upon such
consolidation, merger, combination, sale or conveyance, then for the purpose of
this Section 12 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, combination, sale or conveyance
shall be deemed to be the choice specified by the holder of the Total Warrant,
which specification shall be made by the holder of the Total Warrant by the
later of (i) 10 Trading Days
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after the holder of the Total Warrant is provided with a final version of all
information required by law or regulation to be furnished to holders of the
Total Shares concerning such choice, or if no such information is required, 10
Trading Days after Total notified the holder of the Total Warrant of all
material facts concerning such specification and (ii) the last time at which
holders of Total Shares are permitted to make their specification known to
Total. If the holder of the Total Warrant fails to make any specification, the
holder's choice shall be deemed to be whatever choice is made by a plurality of
holders of Total Shares not affiliated with Total or any other party to the
consolidation, merger, combination, sale or conveyance. Such new Total Warrants
shall provide for adjustments which, for events subsequent to the effective date
of such new Total Warrants, shall be as nearly equivalent as may be practicable
to the adjustments provided for in Section 10 and this Section 12.
Total shall mail, or cause to be mailed, by first-class mail,
postage prepaid, to each registered holder of a Total Warrant, written notice of
the execution of any such amendment or agreement. Any new agreement entered into
by the successor corporation or transferee shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in Section 10. The Warrant Agent shall be under no responsibility to
determine the correctness of any provisions contained in such agreement relating
either to the kind or amount of securities or other property receivable upon
exercise of Total Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
The above provisions of this Section 12 shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
SECTION 13. FRACTIONAL TOTAL WARRANTS AND FRACTIONAL TOTAL ADSs.
(a) Neither Total nor the Warrant Agent shall be required to
issue fractions of Total Warrants or to distribute Warrant Certificates
which evidence fractional Total Warrants. In lieu of such fractional
Total Warrants, there shall be paid to the persons to whom Warrant
Certificates representing such fractional Total Warrants would
otherwise be issuable an amount in cash (without interest) equal to the
product of such fraction of a Total Warrant multiplied by the Current
Market Price per whole Total Warrant. For the purpose of any
computation under this Section 13(a), "Current Market Price" per Total
Warrant on any date shall be deemed to be the average of the daily
Closing Prices per Total Warrant for the 10 consecutive Trading Days
immediately prior to such date. The Closing Price per Total Warrant for
each day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, Inc. ("NYSE") or,
if such Total Warrants are not listed or admitted to trading on the
NYSE, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which such securities are listed or admitted to
trading or, if such securities are not listed or admitted to trading on
any national securities exchange, the average of the high bid and low
asked prices in the over the counter market, as reported by National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ"). If on any such Trading Day or Days such securities are not
quoted by any such organization, such Trading Day or Days
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shall be replaced for purposes of the foregoing calculation by the
requisite Trading Day or Days preceding the commencement of such 10
Trading Day period on which such securities are so quoted. If the Total
Warrants are not so listed or traded, the "Current Market Price" per
Total Warrant shall be deemed to be the fair value per Total Warrant as
determined in good faith by the Board of Directors of Total, whose
determination shall be described in a statement filed with the Warrant
Agent.
(b) Neither Total nor the Depositary shall be required to
issue fractions of Total ADSs upon exercise of Total Warrants or to
distribute Total ADS certificates which evidence fractional Total ADSs.
In lieu of fractional Total ADSs, there shall be paid to the registered
holders of Warrant Certificates at the time such Warrant Certificates
are exercised as herein provided an amount in cash (without interest)
equal to the product of such fractional part of a Total ADS multiplied
by the Current Market Price per Total ADS. For the purpose of any
computation under this Section 13(b), "Current Market Price" per Total
ADS on any date shall be deemed to be the average of the daily Closing
Prices per Total ADS for the 10 consecutive Trading Days immediately
prior to such date. The Closing Price per Total ADS for each day shall
be the last sale price, regular way, or, in case no such sale takes
place on such day, the average closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if such Total ADSs are not listed
on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which such securities are listed or
admitted to trading or, if such securities are not listed or admitted
to trading on any national securities exchange, the average of the high
bid and low asked prices in the over the counter market, as reported by
NASDAQ. If on any such Trading Day or Days such securities are not
quoted by any such organization, such Trading Day or Days shall be
replaced for purposes of the foregoing calculation by the requisite
Trading Day or Days preceding the commencement of such 10 Trading Day
period on which such securities are so quoted. If the Total ADSs are
not so listed or traded, the "Current Market Price" per Total ADS shall
be deemed to be the fair value per Total ADS as determined in good
faith by the Board of Directors of Total, whose determination shall be
described in a statement filed with the Warrant Agent, based on (a) the
most recently completed arm's-length transaction between Total and a
Person other than an affiliate of Total, the closing of which occurred
on such date or within the three-month period preceding such date, or
(b) if no such transaction shall have occurred on such date or within
such three-month period, the value of the security as determined by an
independent financial expert selected by such Board and reasonably
acceptable to the Warrant Agent.
(c) The holder of a Total Warrant by the acceptance of the
Total Warrant expressly waives his right to receive any fractional
Total Warrant or any fractional Total ADS upon exercise of a Total
Warrant (but not to the cash payment required to be made by Total in
lieu thereof in accordance with this Section 13).
SECTION 14. RIGHT OF ACTION.
All rights of action in respect of this Warrant Agreement are
vested in the respective registered holders of the Warrant Certificates, and any
registered holder of any
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Warrant Certificate, without the consent of the Warrant Agent or of the holder
of any other Warrant Certificate, may, on such holder's own behalf and for such
holder's own benefit, enforce, and may institute and maintain any suit, action
or proceeding against Total to enforce, or otherwise act in respect of, such
holder's right to exercise the Total Warrants evidenced by such Warrant
Certificate in the manner provided in such Warrant Certificate and in this
Warrant Agreement.
SECTION 15. AGREEMENT OF WARRANT CERTIFICATE HOLDERS.
Every holder of a Warrant Certificate by accepting the same
consents and agrees with Total and the Warrant Agent and with every other holder
of a Warrant Certificate that:
(a) the Warrant Certificates are transferable only on the
registry books of the Warrant Agent if surrendered at the designated
office of the Warrant Agent, duly endorsed or accompanied by a proper
instrument of transfer, along with a signature guarantee and such other
and further documentation as the Warrant Agent may reasonably request;
and
(b) Total and the Warrant Agent may deem and treat the person
in whose name the Warrant Certificate is registered as the absolute
owner thereof and of the Total Warrants evidenced thereby
(notwithstanding any notations of ownership or writing on the Warrant
Certificates made by anyone other than Total or the Warrant Agent) for
all purposes whatsoever, and neither Total nor the Warrant Agent shall
be affected by any notice to the contrary.
(c) notwithstanding anything in this Warrant Agreement to the
contrary, neither Total nor the Warrant Agent shall have any liability
to any holder of a Warrant or other person as a result of its inability
to perform any of its obligations under this Warrant Agreement by
reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by
any governmental authority prohibiting or otherwise restraining
performance of such obligation; provided that Total must use its best
efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
SECTION 16. WARRANT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Warrant Certificate shall be
entitled to vote, receive dividends or distributions on, or be deemed for any
purpose the holder of, Total ADSs or Total Shares or any other securities of
Total which may at any time be issuable on the exercise or conversion of the
Total Warrants represented thereby, nor shall anything contained herein or in
any Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate, as such, any of the rights of a stockholder of Total or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 23), or to receive dividends or
distributions or subscription rights, or otherwise, until the Total Warrant or
Total Warrants evidenced by such Warrant Certificate shall have been exercised
in accordance with the provisions hereof.
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SECTION 17. CONCERNING THE WARRANT AGENT.
(a) Total agrees to pay to the Warrant Agent such compensation
as shall be agreed in writing between Total and the Warrant Agent for
all services rendered by it hereunder and, from time to time, on demand
of the Warrant Agent, its reasonable out-of-pocket expenses and counsel
fees and other reasonable disbursements incurred in the administration
and execution of this Warrant Agreement and the exercise and
performance of its duties hereunder. Total also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability
or reasonably incurred expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Warrant Agent, for
anything done or omitted by the Warrant Agent in connection with the
acceptance and administration of this Warrant Agreement, including
without limitation, the reasonable costs and expenses of defending
against any claim of liability in the premises, including reasonable
attorney fees and expenses. The provisions of this Section 17 shall
survive termination of this Warrant Agreement or the discharge of the
Warrant Agent under the terms hereof.
(b) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in connection with its administration of this Warrant Agreement in
reliance upon any Warrant Certificate, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
instruction, direction, consent, certificate, statement, or other paper
or document, reasonably believed by it to be genuine and to be signed
and executed by the proper person or persons.
SECTION 18. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT.
Any corporation into which the Warrant Agent or any successor
Warrant Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Warrant
Agent or any successor Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Warrant Agent or any successor Warrant Agent, shall be the successor to the
Warrant Agent under this Warrant Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a successor Warrant
Agent under the provisions of Section 20. In case at the time such successor
Warrant Agent shall succeed to the agency created by this Warrant Agreement any
of the Warrant Certificates shall have been countersigned but not delivered, any
such successor Warrant Agent may adopt the countersignature of the predecessor
Warrant Agent and deliver such Warrant Certificates so countersigned; and in
case at that time any of the Warrant Certificates shall not have been
countersigned, any successor Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Warrant Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been
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countersigned, the Warrant Agent may countersign such Warrant Certificates
either in its prior name or in its changed name; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Warrant Agreement.
SECTION 19. DUTIES OF WARRANT AGENT.
The Warrant Agent undertakes the duties and obligations
expressly imposed by this Warrant Agreement upon the following terms and
conditions, and no implied duties or obligations shall be read into this Warrant
Agreement against the Warrant Agent, all of which Total and the holders of
Warrant Certificates, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for Total), and the opinion of such counsel shall be
full and complete authorization and protection to the Warrant Agent as
to any action taken or omitted by it in good faith and in accordance
with such opinion. If practicable, the Warrant Agent agrees, to use all
reasonable efforts to consult with any Authorized Officer of Total as
to any action to be taken or omitted under this Section 19(a).
(b) Whenever in the performance of its duties under this
Warrant Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by Total
prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by any Authorized Officer of Total and delivered
to the Warrant Agent; and such certificate shall be full authentication
to the Warrant Agent for any action taken or suffered in good faith by
it under the provisions of this Warrant Agreement in reliance upon such
certificate.
(c) The Warrant Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Warrant
Agreement or in the Warrant Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by Total only.
(e) The Warrant Agent shall not be under any responsibility or
liability in respect of the validity of this Warrant Agreement or the
execution and delivery hereof (except the due execution hereof by the
Warrant Agent) or in respect of the validity or execution of any
Warrant Certificate (except its countersignature thereof); nor shall it
be responsible or liable for any breach by Total of any covenant or
condition contained in this Warrant Agreement or in any Warrant
Certificate; nor shall it be responsible or liable for the adjustment
of the Exercise Price or the making of any change in the number of
Total ADSs or Total Shares required under the provisions of Sections 10
or 12 or responsible for the manner, method or amount of any such
change or the ascertaining of the existence of facts that would require
any such adjustment or change (except with respect to the exercise of
Total Warrants evidenced by Warrant Certificates after actual notice of
any adjustment of the Exercise Price); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of
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any Total ADSs to be issued pursuant to this Warrant Agreement or any
Warrant Certificate or as to whether any Total ADSs or Total Shares
will, when issued, be duly authorized, validly issued, fully paid and
nonassessable; nor shall the Warrant Agent be responsible for the
legality of the terms hereof in its capacity as an administrative
agent.
(f) Total agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Warrant Agent for the carrying out
or performing by the Warrant Agent of the provisions of this Warrant
Agreement.
(g) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any Authorized Officer of Total, and to apply to such
officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such officer or
for any delay in acting while waiting for those instructions. Any
application by the Warrant Agent for written instructions from Total
may, at the option of the Warrant Agent, set forth in writing any
action proposed to be taken or omitted by the Warrant Agent under this
Agreement and the date on/or after which such action shall be taken or
such omission shall be effective. The Warrant Agent shall not be liable
for any action taken by, or omission of, the Warrant Agent in
accordance with a proposal included in such application on or after the
date specified in such application (which date shall not be less than
three Business Days after the date any Authorized Officer of Total
actually receives such application, unless any such Authorized Officer
shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an
omission), the Warrant Agent shall have received written instructions
in response to such application specifying the action to be taken or
omitted.
(h) The Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the
Total Warrants or other securities of Total or become pecuniarily
interested in any transaction in which Total may be interested, or
contract with or lend money to Total or otherwise act as fully and
freely as though it were not Warrant Agent under this Warrant
Agreement. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for Total or for any other legal entity.
(i) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorney or agents, and the Warrant
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss
to Total resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Warrant Agreement shall require the
Warrant Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of its rights if there shall be
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reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) Total agrees to give the Warrant Agent prompt written
notice of any event or ownership which would prohibit the exercise or
transfer of the Warrant Certificates.
SECTION 20. CHANGE OF WARRANT AGENT.
The Warrant Agent may resign and be discharged from its duties
under this Warrant Agreement upon 60 days' notice in writing mailed to Total by
registered or certified mail, and the successor warrant agent will give notice
in writing to the holders of the Warrant Certificates by first-class mail. Total
may remove the Warrant Agent or any successor Warrant Agent upon 60 days' notice
in writing, mailed to the Warrant Agent or successor warrant agent, as the case
may be, by registered or certified mail, and to the holders of the Warrant
Certificates by first-class mail. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, Total shall appoint a
successor to the Warrant Agent. If Total shall fail to make such appointment
within a period of 60 days after such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the holder of a Warrant Certificate (who shall, with such
notice, submit his Warrant Certificate for inspection by Total) then, at the
expense of Total, the Warrant Agent or registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Warrant Agent. Any successor Warrant Agent, whether appointed by Total
or by a court, shall be a corporation organized and doing business under the
laws of the United States or of a state thereof, in good standing, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Warrant Agent a combined capital and surplus of at
least $50,000,000. After appointment, the successor Warrant Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, Total shall file notice thereof
in writing with the predecessor warrant agent, and mail a notice thereof in
writing to the registered holders of the Warrant Certificates. However, failure
to give any notice provided for in this Section 20, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor Warrant Agent, as the case may be.
SECTION 21. ISSUANCE OF NEW WARRANT CERTIFICATES.
Notwithstanding any of the provisions of this Warrant
Agreement or of the Total Warrants to the contrary, Total may, at its option,
issue new Warrant Certificates evidencing Total Warrants in such form as may be
approved by its Board of Directors to reflect any adjustment or change in the
Exercise Price per Total ADS and the number or kind or class of shares of stock
or other securities or property purchasable under the several Warrant
Certificates made in accordance with the provisions of this Warrant Agreement.
SECTION 22. PURCHASE OF TOTAL WARRANTS BY TOTAL.
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Nothing in this Warrant Agreement shall prevent Total from
acquiring Total Warrants.
SECTION 23. NOTICE OF PROPOSED ACTIONS.
In case Total shall propose (a) to declare a dividend on the
Total Shares payable in shares of capital stock of any class or to make any
other distribution to all holders of Total Shares (including any distribution
made in connection with a consolidation, merger or combination in which Total is
the continuing corporation), or (b) to offer rights, options or warrants to all
holders of Total Shares entitling them to subscribe for or purchase Total Shares
(or securities convertible into or exercisable or exchangeable for Total Shares
or any other securities), or (c) to offer any shares of capital stock in a
reclassification of Total Shares (including any such reclassification in
connection with a consolidation, merger or combination in which Total is the
continuing corporation), or (d) to effect any consolidation, merger or
combination into or with, or to effect any sale or other transfer (or to permit
one or more of its subsidiaries to effect any sale or other transfer), in one or
more transactions, of more than 50% of the assets or net income of Total and its
subsidiaries (taken as a whole) to, any other Person, (e) to effect the
liquidation, dissolution or winding up of Total or (f) to take any other action
referred to in Section 10, then, in each such case, Total shall give, or cause
to be given, to each registered holder of a Total Warrant and the Warrant Agent,
in accordance with Section 24, a notice of such proposed action, which shall
specify the date of such stock dividend, distribution of rights or warrants, or
the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, winding up or other action referred to in Section 10
is to take place and the date of participation therein by the holders of Total
Shares, if any such date is to be fixed, and such notice shall be so given at
least 20 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Total Shares, whichever shall be
the earlier. The failure to give notice required by this Section 23 or any
defect therein shall not affect the legality or validity of the action taken by
Total or the vote upon any such action. Unless specifically required by Section
10, the Exercise Price, the number of Total ADSs covered by each Total Warrant
and the number of Total Warrants outstanding shall not be subject to adjustment
as a result of Total being required to give notice pursuant to this Section 23.
SECTION 24. NOTICES.
Notices or demands authorized by this Warrant Agreement to be
given or made (i) by the Warrant Agent or by the holder of any Warrant
Certificate to or on Total, (ii) subject to the provisions of Section 20, by
Total or by the holder of any Warrant Certificate to or on the Warrant Agent or
(iii) by Total or the Warrant Agent to the holder of any Warrant Certificate,
shall be deemed given (x) on the date delivered, if delivered personally, (y) on
the first Trading Day following the deposit thereof with Federal Express, DHL or
another recognized overnight courier, if sent by Federal Express, DHL or another
recognized overnight courier, and (z) on the fourth Trading Day following the
mailing thereof with postage prepaid, if mailed by registered or certified mail
(return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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(a) If to Total, to:
Total
Tour Total
24, cours Michelet
La ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Phone: (011-33-1) ▇▇-▇▇-▇▇-▇▇
Facsimile: (011-33-1) 41 35 35 51
Attention: Treasurer/Corporate Finance Dept.
(b) If to the Warrant Agent, to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ADR Client Services
(c) If to the holder of any Warrant Certificate, to the
address of such holder as shown on the register of Total Warrants.
SECTION 25. SUPPLEMENTS AND AMENDMENTS.
(a) Total and the Warrant Agent may from time to time
supplement or amend this Warrant Agreement without the approval of any
holders of Warrant Certificates in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to make
any other provisions with regard to matters or questions arising
hereunder which Total and the Warrant Agent may deem necessary or
desirable and which shall not materially adversely affect the interests
of the holders of Warrant Certificates.
(b) In addition to the foregoing, with the consent of holders
other than Total or any affiliate thereof of not less than a majority
in number of the then outstanding Total Warrants (other than those held
by Total or any affiliate thereof), Total and the Warrant Agent may
modify this Warrant Agreement for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Warrant Agreement or modifying in any manner the rights of the
holders of the Warrant Certificates; provided, however, that no
modification of the terms (including but not limited to the adjustments
described in Section 10) upon which the Total Warrants are exercisable
or reducing the percentage required for consent to modification of this
Warrant Agreement or otherwise modifying, or adding a provision
inconsistent with, this Section 25(b) may be made without the consent
of the holder of each outstanding Total Warrant affected thereby.
(c) Upon the delivery of a certificate from an Authorized
Officer of Total which states that the proposed supplement or amendment
is in compliance with the terms of this Section, the Warrant Agent
shall execute such supplement or amendment. Notwithstanding any other
provision hereof, the Warrant Agent's consent must be
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obtained regarding any amendment or supplement pursuant to this Section
25 which alters the Warrant Agent's rights or duties.
SECTION 26. REPORTS.
Total will furnish the Warrant Agent with its annual reports
containing audited consolidated financial statements and six-month interim
reports which will include unaudited condensed consolidated financial
information prepared in conformity with French GAAP. Total will also furnish the
Warrant Agent with summaries of notices of general shareholders' meeting and
other reports and communications that are generally available to shareholders of
Total. The Warrant Agent will arrange for the mailing of such summaries of these
reports and communications to all record holders of the Total Warrants, at
Total's expense.
SECTION 27. SUCCESSORS.
All covenants and provisions of this Warrant Agreement by or
for the benefit of Total or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
SECTION 28. BENEFITS OF THIS WARRANT AGREEMENT.
Nothing in this Warrant Agreement shall be construed to give
any Person other than Total, the Warrant Agent and the registered holders of the
Warrant Certificates any legal or equitable right, remedy or claim under this
Warrant Agreement; but this Warrant Agreement shall be for the sole and
exclusive benefit of Total, the Warrant Agent and the registered holders of the
Warrant Certificates.
SECTION 29. GOVERNING LAW.
This Warrant Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
SECTION 30. COUNTERPARTS.
This Warrant Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 31. CAPTIONS.
The caption of the sections of this Warrant Agreement have
been inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, all as of the day and year first above written.
TOTAL
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
THE BANK OF NEW YORK
as Warrant Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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Exhibit 1 to the
Warrant Agreement
Form of Warrant Certificate
Certificate No._____
_____________ Warrants
NOT EXERCISABLE AFTER AUGUST 5, 2003
Warrant Certificate
TOTAL
This certifies that ___________________, or registered assigns, is the
registered owner of the number of Total Warrants set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Warrant Agreement dated as of June 4, 1999 (the "Warrant Agreement") between
Total, societe anonyme organized under the laws of France ("Total"), and The
Bank of New York, a New York banking corporation (the "Warrant Agent"), to
purchase or receive from Total at any time after [ ] __, 1999 and prior to 5:00
P.M. (New York City time) on August 5, 2003, at the designated office of the
Warrant Agent located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or its
successors as Warrant Agent, in New York City, one American depositary share of
Total (each, a "Total ADS"), each Total ADS representing one-half (1/2) of one
share, nominal value of each FF50 of Total (a "Total Share"), to be purchased at
an initial exercise price of US $46.94 per Total ADS (the "Exercise Price"), in
each case upon presentation and surrender of this Warrant Certificate with the
Form of Election to Purchase duly executed, and in the case of a transfer, a
signature guarantee, and such other and further documentation as the Warrant
Agent may reasonably request, accompanied by payment of the Exercise Price for
the Total ADSs to be purchased and any applicable taxes or charges. The Exercise
Price may be paid by certified bank check or money order payable to the order of
the Warrant Agent for Total's account, in lawful money of the United States of
America. The number of Total ADSs which may be purchased upon exercise of the
Total Warrants evidenced by this Warrant Certificate and the Exercise Price set
forth above are the number and Exercise Price as of the date of the Warrant
Agreement, based on the Total ADSs as constituted at such date. As provided in
the Warrant Agreement, the Exercise Price and the number and type of securities
which may be purchased upon the exercise of the Total Warrants evidenced by this
Warrant Certificate are subject to modification and adjustment upon the
occurrence of certain events. Based on the initial Exercise Price of US $46.94
per Total ADS, a holder of two Total Warrants may purchase two Total ADSs for an
aggregate purchase price of US $93.88.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Warrant Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Warrant Agent, Total, and the holders of the Warrant Certificates. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent.
This Warrant Certificate, with or without other Warrant Certificates, upon
surrender at the designated office of the Warrant Agent, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Total Warrants entitling the holder to
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purchase a like aggregate number of Total ADSs, in each case as the Total
Warrants evidenced by the Warrant Certificate or Warrant Certificates
surrendered shall have entitled such holder to purchase or receive. If this
Warrant Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof another Warrant Certificate or Warrant
Certificates for the number of Total Warrants not exercised. Total Warrants are
only exercisable in units of two or any integral multiple thereof.
If applicable, Total shall make a cash payment in lieu of issuing fractional
Total Warrants or fractional Total ADSs, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote, participate
in any shareholder meeting, receive dividends or distributions on, or be deemed
for any purpose the holder of, Total ADSs or Total Shares or of any other
securities of Total which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Warrant Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of
Total or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Warrant Agreement), or to
receive dividends or subscription rights, or otherwise, until the Total Warrant
or Total Warrants evidenced by this Warrant Certificate shall have been
exercised as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by an authorized signatory of the Warrant
Agent.
WITNESS the facsimile signature of the proper officers of Total. Dated as of
June__, 1999.
TOTAL
By:
________________________________
Name:
Title:
Countersigned: By:
________________________________
Name:
Title:
_____________________________
By: Date:
__________________________ ______________________________
Authorized Signature
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate.)
To ____________________________________________________, as Warrant Agent:
The undersigned hereby irrevocably elects to exercise ______________ Total
Warrants represented by this Warrant Certificate to purchase the Total ADSs
issuable upon the exercise of such Total Warrants and requests that Certificates
for such Total ADSs be issued in the name of and delivered to:
Please insert social security
or other identifying number
_______________________________________________________________________________
(Please print name and address)
_______________________________________________________________________________
If such number of Total Warrants shall not be all the Total Warrants evidenced
by this Warrant Certificate, a new Warrant Certificate for the balance remaining
of such Total Warrants shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
_______________________________________________________________________________
(Please print name and address)
_______________________________________________________________________________
The undersigned hereby elects to receive VVPR-Strips, which accompany the
Shares underlying the Total ADSs and requests that the Warrant Agent deliver
such VVPR-Strips to the following address, which is capable of receiving
physical property.
_______________________________________________________________________________
(Please print name and address)
_______________________________________________________________________________
Dated:
_______________________
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_____________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate)
Signature Guaranteed:
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Annex A to Warrant Certificate
ASSIGNMENT FORM
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificates)
FOR VALUE RECEIVED, ____________________________________ hereby sells,
assigns and transfers unto
Name:
__________________________________________________________________________
(please typewrite or print in block letters)
Address:
_______________________________________________________________________
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to
transfer within the Warrant Certificate the same on the books of Total, with \
full power of substitution in the premises.
Date:____________________,
Signature
_______________________________________
Signature Guaranteed:
Notice
The signature to the foregoing assignment must correspond to the name as
written upon the face of this Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever.
[Signatures must be guaranteed by a member firm of the New York Stock
Exchange, Inc., or a commercial bank or trust company having an office or
correspondent in New York City.]
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