EXHIBIT 4.4
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Dated as of September 30, 1996
by and between
UNITED USN, INC.
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
as Warrant Agent
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WARRANT AGREEMENT
TABLE OF CONTENTS/*/
Page
SECTION 1. Appointment of Warrant Agent................................. 3
SECTION 2. Issuance of Warrants......................................... 3
SECTION 3. Warrant Certificates......................................... 3
SECTION 4. Execution of Warrant Certificates............................ 3
SECTION 5. Transfers of Warrants........................................ 4
(a) Prior to the Separation of Initial Warrants and Senior Notes;
Separation of Initial Warrants and Senior Notes.............. 4
(b) Private Placement Legend..................................... 5
(c) Global Warrant Legend........................................ 6
SECTION 6. Registration and Countersignature............................ 6
SECTION 7. (a) Registration of Transfers and Exchanges................. 7
(b) Book-Entry Provisions for the Global Warrants................ 7
(c) Special Transfer Provisions.................................. 8
SECTION 8. Terms of Warrants; Exercise of Warrants...................... 10
SECTION 9. Reports...................................................... 11
SECTION 10. Payment of Taxes............................................. 12
SECTION 11. Mutilated or Missing Warrant Certificates.................... 12
SECTION 12. Reservation of Warrant Shares................................ 12
SECTION 13. Obtaining Stock Exchange Listings............................ 13
SECTION 14. Consolidations, Mergers and Sales of Assets.................. 13
SECTION 15. Adjustment of Number of Warrant Shares....................... 13
SECTION 16. [Intentionally Omitted.]..................................... 21
SECTION 17. Fractional Interests......................................... 21
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/*/ This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms or provisions.
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SECTION 18. Notices of Adjustments........................................ 21
SECTION 19. Warrant Agent................................................. 23
SECTION 20. Merger, Consolidation or Change of Name of Warrant
Agent......................................................... 24
SECTION 21. Change of Warrant Agent....................................... 25
SECTION 22. Notices to the Company and Warrant Agent...................... 25
SECTION 23. Supplements and Amendments.................................... 26
SECTION 24. Successors.................................................... 26
SECTION 25. Termination................................................... 26
SECTION 26. Governing Law; Jurisdiction................................... 26
SECTION 27. Benefits of This Agreement.................................... 27
SECTION 28. Counterparts.................................................. 27
SECTION 29. Further Assurances............................................ 27
EXHIBIT A.................................................................. 29
EXHIBIT B.................................................................. 36
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WARRANT AGREEMENT (this "Agreement") dated as of September 30, 1996
between United USN, Inc., (the "Company"), and ▇▇▇▇▇▇ Trust and Savings Bank, as
Warrant Agent (the "Warrant Agent").
WHEREAS, the Senior Note Indenture (as defined below) and the
Convertible Note Indenture (as defined below), respectively, permit the Company
to sell up to $137,000,000 aggregate principal amount of 14% Senior Discount
Notes due 2003 (the "Senior Notes") and up to $46,000,000 aggregate principal
amount of 9% Convertible Subordinated Notes due 2004 (the "Convertible Notes,"
and together with the Senior Notes, the "Notes");
WHEREAS, the Company has entered into a purchase agreement, dated
September 23, 1996, with ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., BT Securities Corporation, Chase
Securities Inc. and CIBC Wood Gundy Securities Corp. (the "Initial Purchasers")
pursuant to which the Company has agreed to sell to the Initial Purchasers
48,500 Units (the "Units") consisting of $48,500,000 aggregate principal amount
of Senior Notes and warrants (the "Original Initial Warrants") to purchase up to
an aggregate of 61,562 shares of the Company's Class A Common Stock, par value
$.01 per share (the "Class A Common Stock," and together with the Company's
Class B Common Stock, $.01 par value per share, the "Common Stock") and
$36,000,000 aggregate principal amount of Convertible Notes. Each Warrant
entitles the holder thereof, upon exercise, to purchase fully paid and
nonassessable shares of Class A Common Stock ("Number of Shares") at an exercise
price of $.01 per share (the "Exercise Price"). Each Initial Warrant entitles
the holder thereof, upon exercise, to purchase 1.269311203 fully paid and
nonassessable shares of Class A Common Stock at the Exercise Price. The Number
of Shares is subject to adjustment under certain circumstances as provided in
Section 15 hereof. The shares of Class A Common Stock issuable upon exercise of
Warrants are referred to herein as "Warrant Shares." The Senior Notes will be
issued under an indenture to be dated as of September 30, 1996 (the "Senior Note
Indenture") between the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee
(the "Senior Note Trustee"). The Convertible Notes will be issued under an
indenture to be dated as of September 30, 1996 (the "Convertible Note
Indenture," and together with the Senior Note Indenture, the "Indentures")
between the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the
"Convertible Note Trustee," and together with the Senior Note Trustee, the
"Trustees"); and
WHEREAS, the Initial Warrants (as defined herein) shall bear the
legend (the "Warrant Legend") set forth on the form of Warrant Certificate set
forth in Exhibit A attached hereto and the Notes shall bear the legends set
forth in the applicable Indenture, in each case subject to the terms of this
Agreement and the applicable Indenture, as the case may be. Unless registered
under the Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities laws, the Warrant Shares shall initially bear the
legend set forth in Exhibit B (the "Warrant Shares Legend"); and
WHEREAS, the Initial Warrants and the Senior Notes shall not be
separately transferable until the close of business upon the earliest to occur
of (i) a
date 180 days after the issuance of the Initial Warrants, (ii) such date as
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may determine and specify to the Warrant Agent, (iii) the
commencement of the offer by the Company to the holders of Senior Notes of the
opportunity to acquire Exchange Notes in substitution for the Senior Notes (the
"Exchange Offer") and (iv) in the event of a Change of Control, as defined in
the Senior Note Indenture, the date the Company mails notice thereof to the
holders of the Senior Notes (as applicable, the "Separation Date"); and
WHEREAS, pursuant to Section 4.20 of the Senior Note Indenture, in
certain circumstances the Company will be obligated to issue additional warrants
(the "Senior Note Contingent Warrants") on March 30, 1998 (the "Senior Note
Contingent Warrant Issuance Date") exercisable for Class A Common Stock of the
Company under the same terms and with the same legend (except as set forth
herein) as the Initial Warrants as described above; and
WHEREAS, pursuant to Sections 4.13 and 4.15 of the Convertible Note
Indenture, in certain circumstances, the Company will be obligated to issue (i)
additional warrants (the "Convertible Note Contingent Warrants") on September
30, 1999 (the "Convertible Note Contingent Warrant Issuance Date") and (ii)
certain other warrants (the "Additional Warrants," and together with the Senior
Note Contingent Warrants, the Convertible Note Contingent Warrants and the
Initial Warrants, the "Warrants") on September 30, 1997 (the "Additional Warrant
Issuance Date"), in each case, exercisable for Class A Common Stock of the
Company under the same terms and with the same legend (except as set forth
herein) as the Initial Warrants as described above; and
WHEREAS, this Agreement may be amended and supplemented from time to
time such that upon the issuance by the Company of additional warrants to
purchase up to an aggregate of 91,373 shares of Class A Common Stock (the
"Supplemental Initial Warrants," and together with the Original Initial
Warrants, the "Initial Warrants"), such Supplemental Initial Warrants will be
entitled to the benefits of this Agreement.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates and other matters as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
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the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Issuance of Warrants. Initial Warrants shall be
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originally issued in connection with the issuance of the Senior Notes and shall
not be separately transferable from the Senior Notes until on or after the
Separation Date
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as provided in Section 5 hereof. Senior Note Contingent Warrants shall be
issued, if required, in accordance with Section 4.20 of the Senior Note
Indenture and Convertible Note Contingent Warrants shall be issued, if required,
in accordance with Section 4.13 of the Convertible Note Indenture. Additional
Warrants shall be issued, if required, in accordance with Section 4.15 of the
Convertible Note Indenture.
SECTION 3. Warrant Certificates. The certificates evidencing the
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Warrants ("Warrant Certificates") shall be substantially in the form annexed
hereto as Exhibit A with such changes as are as necessary to reflect the number
of shares of Class A Common Stock for which the Warrants are then exercisable.
The Warrants will be offered and sold in reliance on Rule 144A and
shall be evidenced initially in the form of one or more permanent global
Warrants (each, a "Global Warrant") evidenced by a Warrant Certificate in
definitive, fully registered form, substantially in the form set forth in
Exhibit A (each, a "Global Warrant Certificate"), deposited with the Warrant
Agent, as custodian for the Depository Trust Company, as depositary, or any
successors or assigns thereof (the "Depositary") and registered in the name of a
nominee of the Depositary, duly executed by the Company and countersigned by the
Warrant Agent as hereinafter provided. The aggregate amount of a Global Warrant
may from time to time be increased or decreased by adjustments made on the
records of the Warrant Agent, as custodian for the Depositary or its nominee, as
hereinafter provided.
SECTION 4. Execution of Warrant Certificates. Warrant Certificates
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shall be signed on behalf of the Company by any two of the following officers:
its Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
President, any Vice President, Secretary or Assistant Secretary, under its
corporate seal. Each such signature upon the Warrant Certificates may be in the
form of a facsimile signature of the present or any future Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, President or any Vice
President and Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Warrant Certificates and for that purpose the Company may
adopt and use the facsimile signature of any person who shall have been Chairman
of the Board, Chief Executive Officer, Chief Financial Officer, President, any
Vice President, Secretary or Assistant Secretary, notwithstanding the fact that
at the time the Warrant Certificates shall be countersigned and delivered or
disposed of he or she shall have ceased to hold such office. The seal of the
Company may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate,
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shall be a proper officer of the Company to sign such Warrant Certificate,
although at the date of the execution of this Agreement any such person was not
such officer.
Warrant Certificates shall be dated the date of countersignature by
the Warrant Agent.
SECTION 5. Transfers of Warrants.
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(a) Prior to the Separation of Initial Warrants and Senior Notes;
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Separation of Initial Warrants and Senior Notes. Notwithstanding the provisions
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of Section 7 hereof, on or after the Separation Date, the registered holder of a
Warrant Certificate containing a Warrant Legend may surrender such Warrant
Certificate accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent, duly executed by the registered holder
or holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney to the Warrant Agent, at its address specified in
Section 22 hereof (the "Warrant Agent Office") for the exchange of such Warrant
Certificate containing a Warrant Legend, in whole or in part, for a new Warrant
Certificate or certificates not containing the first paragraph of the Warrant
Legend (such surrender and exchange being referred to herein as a "Separation"
and the related Warrants being referred to as "Separated").
Until the Separation Date, no Initial Warrant may be sold, assigned or
otherwise transferred to any person unless simultaneously with such transfer,
the Warrant Agent receives confirmation from the Senior Note Trustee that the
holder thereof has requested a transfer to such transferee of $1,000 principal
amount of Senior Notes for each Initial Warrant to purchase 1.269311203 shares
of Class A Common Stock of the Company (subject to adjustment under Section 15
hereof) so transferred. In connection with the foregoing, upon original
issuance of the Initial Warrants until Separation each Initial Warrant
Certificate will bear the following legend:
UNTIL THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (I) A DATE
180 DAYS AFTER THE ISSUE OF THE WARRANTS, (II) SUCH DATE AS ▇▇▇▇▇
▇▇▇▇▇▇ INC. MAY DETERMINE, (III) THE COMMENCEMENT OF AN EXCHANGE OFFER
RELATING TO THE 14% SENIOR DISCOUNT NOTES DUE 2003 (THE "NOTES") OF
UNITED USN, INC. (THE "COMPANY"), (IV) IN THE EVENT OF CHANGE OF
CONTROL (AS DEFINED IN THE INDENTURE RELATING TO THE NOTES), THE DATE
THE COMPANY MAILS NOTICE THEREOF TO HOLDERS OF THE NOTES, THE WARRANTS
EVIDENCED HEREBY MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED
TO ANY PERSON UNLESS, SIMULTANEOUSLY
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WITH SUCH TRANSFER, THE HOLDER HEREOF TRANSFERS TO SUCH TRANSFEREE
$1,000 PRINCIPAL AMOUNT OF NOTES AND A WARRANT TO PURCHASE 1.269311203
SHARES OF CLASS A COMMON STOCK OF THE COMPANY (SUBJECT TO ADJUSTMENT
UNDER SECTION 15 OF THE WARRANT AGREEMENT, DATED AS OF SEPTEMBER 30,
1996, BETWEEN THE COMPANY AND ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS WARRANT
AGENT) SO TRANSFERRED.
(b) Private Placement Legend. Except as otherwise provided in Section
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7(c) (iii) hereof, each Warrant Certificate shall bear the following legend (the
"Private Placement Legend"):
THE WARRANTS REPRESENTED HEREBY AND, AS OF THE DATE THIS WARRANT
CERTIFICATE WAS ORIGINALLY ISSUED, THE SHARES OF CLASS A COMMON STOCK,
$.01 PAR VALUE PER SHARE (THE "CLASS A COMMON STOCK") PURCHASABLE UPON
THEIR EXERCISE (THE "WARRANT SHARES"), HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, NEITHER
THIS WARRANT NOR THE WARRANT SHARES MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE) AND ANY APPLICABLE STATE SECURITIES LAWS
AND THE HOLDER OF THIS CERTIFICATE, IF SO REQUESTED BY THE COMPANY, HAS
DELIVERED TO THE COMPANY AN OPINION OF COUNSEL TO SUCH EFFECT, OR (3)
TO A LIMITED NUMBER OF INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED
IN RULE 501(a) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT) THAT,
PRIOR TO THEIR PURCHASE OF ANY SECURITIES OFFERED HEREBY, DELIVER TO
THE INITIAL PURCHAS-
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ERS A LETTER CONCERNING CERTAIN REPRESENTATIONS AND AGREEMENTS OR (B)
A REGISTRATION STATEMENT UNDER THE ACT HAS BEEN FILED WITH, AND
DECLARED EFFECTIVE BY, THE SECURITIES AND EXCHANGE COMMISSION (THE
"SEC"), AND NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF SUCH
REGISTRATION STATEMENT HAS BEEN ISSUED BY THE SEC.
(c) Global Warrant Legend. The Global Warrant Certificate shall also
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bear the following legend:
UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 7 OF THE WARRANT AGREEMENT.
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SECTION 6. Registration and Countersignature. The Warrant Agent, on
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behalf of the Company, shall number and register the Warrant Certificates in a
register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrant Agent shall, upon written instructions of the Chairman of the Board,
Chief Executive Officer, Chief Financial Officer, President, a Senior Vice
President or Secretary of the Company, initially countersign and deliver Warrant
Certificates entitling the holders thereof to purchase not more than the number
of Warrant Shares referred to above in the first recital hereof and shall
countersign and deliver Warrant Certificates as otherwise provided in this
Agreement. Such written instructions shall specify the amount of the Warrants
to be countersigned and the date of countersignature.
The Company and the Warrant Agent may deem and treat the registered
holder(s) of the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for all purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary. The Company agrees to arrange for
the Senior Note Trustee (or any other Registrar thereunder) to act as registrar
hereunder with respect to Warrants that are not Separated.
SECTION 7. (a) Registration of Transfers and Exchanges. In
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accordance with this Section 7, and subject to the provisions of Section 5
hereof, the Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificates upon the records to be maintained by it for
that purpose, upon surrender thereof accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be canceled by the
Warrant Agent. Canceled Warrant Certificates shall thereafter be disposed of by
the Warrant Agent in a manner consistent with the Warrant Agent's customary
procedure and in accordance with applicable law.
Warrant Certificates may be exchanged at the option of the holder(s)
thereof, when surrendered to the Warrant Agent at its office for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be canceled by the Warrant Agent. Such canceled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
consistent with the Warrant Agent's customary procedure and in accordance with
applicable law.
No service charge shall be made for any transfer or exchange of
Warrant Certificates or any issuance of Warrant Certificates in connection with
a Separation, but the Company may require payment of a sum sufficient to cover
any
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stamp or other governmental charge or tax that may be imposed in connection with
any such transfer or exchange.
The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 7 and Section 5, the new Warrant
Certificates required pursuant to the provisions of this Section 7.
(b) Book-Entry Provisions for the Global Warrants.
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(i) The Global Warrant Certificate initially shall (x) be
registered in the name of the Depositary or the nominee of such Depositary, (y)
be delivered to the Warrant Agent as custodian for the Depositary and (z) bear
legends as set forth in Section 5(b) and (c).
(ii) Transfers of the Global Warrant Certificate shall be limited
to transfers of such Global Warrant Certificate in whole, but not in part, to
the Depositary, its successors or their respective nominees. Beneficial
interests in the Global Warrant may be transferred in accordance with the
applicable rules and procedures of the Depositary. In addition, physical
warrants in substantially the form set forth in Exhibit A ("Physical Warrant
Certificates"), evidencing physical warrants (the "Physical Warrants"), shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Warrant if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as, or ceases to be, a "Clearing Agency"
registered under Section 17A of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a successor depositary registered as a "Clearing
Agency" under Section 17 of the Exchange Act is not appointed by the Company
within 90 days of such notice or (y) an Event of Default has occurred and is
continuing and the Warrant Agent has received a request from the Depositary.
(iii) [Intentionally Omitted.]
(iv) In connection with any transfer of a beneficial interest in
any Global Warrant to a transferee receiving Physical Warrants pursuant to
paragraph (b) (ii) of this Section 7, the Warrant Agent shall reflect on its
books and records the date and a decrease in the aggregate amount of such Global
Warrant in an amount equal to the aggregate amount of the beneficial interest in
such Global Warrant to be transferred, and the Company shall execute, and the
Warrant Agent shall countersign and deliver, one or more Physical Warrants of
like tenor and amount.
(v) In connection with the transfer of an entire Global Warrant to
beneficial owners pursuant to paragraph (b) (ii) of this Section 7, such Global
Warrant shall be deemed to be surrendered to the Warrant Agent for cancellation,
and the Company shall execute, and the Warrant Agent shall countersign and
deliver, to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Warrant, an equal aggregate amount of
Physical Warrants of authorized denominations.
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(vi) Any Physical Warrant delivered in exchange for an interest
in the Global Warrant pursuant to paragraphs (b) (ii), (b) (iv) or (b) (v) of
this Section 7 shall, except as otherwise provided by paragraph (c) (iii) of
this Section 7, bear the legends regarding transfer restrictions applicable to
the Physical Warrant set forth in Sections 5(a) and 5(b).
(vii) The registered holder of a Global Warrant may grant proxies
and otherwise authorize any person, including Agent Members (as defined in
certain Depository Trust Company regulations) and persons that may hold
interests through Agent Members, to take any action which a Warrant holder is
entitled to take under this Warrant Agreement or the Warrants.
(c) Special Transfer Provisions.
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(i) Transfers to Non-QIB (as defined within the meaning of Rule
144A under the Securities Act) Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Warrant to any Institutional Accredited Investor that is not a QIB:
(x) The Warrant Agent shall register the transfer of any
Warrant, whether or not such Warrant bears the Private
Placement Legend, if (A) the requested transfer is at least
three years after the later of the Issue Date and the last
date on which such Warrant was held by an Affiliate of the
Company or (B) the proposed transferee has delivered to the
Warrant Agent (1) a certificate substantially in the form of
Exhibit C hereto and (2) an opinion of counsel, if so
requested by the Company, acceptable to the Company and the
Warrant Agent that such transfer is in compliance with the
Securities Act.
(y) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Warrant, upon receipt by
the Warrant Agent of (A) the documents, if any, required by
paragraph (c) (i) (x) of this Section 7 and (B) instructions
given in accordance with the Depository's and the Warrant
Agent's procedures, the Warrant Agent shall reflect on its
books and records the date and a decrease in the aggregate
amount of the beneficial interest in the Global Warrant to
be transferred, and the Company shall execute, and the
Warrant Agent shall countersign and deliver, one or more
Physical Certificates of like tenor and amount.
(ii) Transfers to QIBs. If the Warrant to be transferred consists
-----------------
of Physical Warrants, the Warrant Agent shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box provided
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for on the form of Warrant stating, or has otherwise advised the Company and the
Warrant Agent in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Warrant stating, or has otherwise advised the
Company and the Warrant Agent in writing, that it is purchasing the Warrant for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
(iii) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Warrant Certificates not bearing the Private Placement Legend,
the Warrant Agent shall deliver Warrant Certificates that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Warrant
Certificates bearing the Private Placement Legend, the Warrant Agent shall
deliver only Warrant Certificates that bear the Private Placement Legend unless
there is delivered to the Warrant Agent an opinion of counsel reasonably
satisfactory to the Company and the Warrant Agent to the effect that neither
such legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(iv) General. The provisions hereof shall be qualified in their
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entirety by any applicable securities laws of the United States and any other
applicable jurisdiction and by the procedures of any applicable clearing agency,
in each case as in effect from time to time, and all such laws and clearing
procedures shall be deemed to be incorporated herein by reference. By its
acceptance of any Warrant Certificate bearing the Private Placement Legend, each
holder of such a Warrant Certificate shall be deemed to acknowledge the
restrictions on transfer of such Warrant Certificate set forth in this Warrant
Agreement and in the Private Placement Legend and agrees that it will transfer
such Warrant Certificate only as provided in this Warrant Agreement. The Warrant
Agent shall not register a transfer of any Warrant Certificate unless such
transfer complies with the restrictions on transfer of such Warrant Certificate
set forth in this Warrant Agreement. In connection with any transfer of Warrant
Certificates, each Warrant holder agrees by its acceptance of the Warrant
Certificates to furnish the Warrant Agent or the Company such certifications,
legal opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act;
provided that the Warrant Agent shall not be required to determine (but may rely
on a determination made by the Company with respect to) the sufficiency of any
such certifications, legal opinions or other information.
SECTION 8. Terms of Warrants; Exercise of Warrants. Subject to the
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terms of this Agreement, each Warrant holder shall have the right, which may be
exercised at any time beginning 180 days from the date of original issuance
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thereof and on or prior to the close of business on September 30, 2003 (the
"Expiration Date") to exercise Warrants and receive from the Company the number
of fully paid and nonassessable Warrant Shares which the holder may at the time
be entitled to receive on exercise of such Warrants and payment of the Exercise
Price for such Warrant Shares; provided that upon any such exercise no holder
shall be entitled to sell or transfer such holder's Warrants Shares at any time
unless, at the time of such sale or transfer, (i) a registration statement under
the Securities Act covering the offer and sale of the Warrant Shares has been
filed with, and declared effective by, the Securities and Exchange Commission
(the "SEC"), and no stop order suspending the effectiveness of such registration
statement has been issued by the SEC or (ii) the offer and sale of the Warrant
Shares to the Warrant holder are exempt from registration under the Securities
Act and the holder of the Warrants, if so requested by the Company, has
delivered to the Company an opinion of counsel to such effect. Each Initial
Warrant, when exercised, will entitle the holder thereof to purchase 1.269311203
fully paid and nonassessable shares of Class A Common Stock at the Exercise
Price. The Number of Shares is subject to adjustment under certain
circumstances as provided herein by Section 15. Each Warrant not exercised
prior to the Expiration Date shall become void and all rights thereunder and all
rights in respect thereof under this Agreement shall cease as of such time.
A Warrant may be exercised at any time on or after 180 days from the
date of original issuance thereof at the election of the holder thereof, either
in full or from time to time in part (in whole shares) upon surrender to the
Company at the principal office of the Warrant Agent of the Warrant Certificate
or Certificates to be exercised with the form of election to purchase on the
reverse thereof duly filled in and signed, which signature shall be guaranteed
by an "eligible guarantor" as defined in the regulations promulgated under the
Exchange Act and upon payment to the Warrant Agent for the account of the
Company of the Exercise Price, as adjusted as herein provided, for each Warrant
then exercised. Payment of the aggregate Exercise Price shall be made in the
form of cash or a certified or official bank or bank cashier's check payable to
the order of the Company.
Subject to the provisions of Section 10 hereof, upon such surrender of
Warrants and payment of the Exercise Price, the Company shall issue and cause to
be delivered with all reasonable dispatch to or upon the written order of the
Warrant holder and in such name or names as the Warrant holder may designate, a
certificate or certificates for the number of whole Warrant Shares issuable upon
the exercise of such Warrants together with any cash which may be payable as
provided in Section 17 hereof. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of such Warrants and payment of the aggregate Exercise Price.
No fractional shares shall be issued upon exercise of any Warrants in accordance
with Section 17 hereof.
In the event that a Warrant Certificate is exercised in respect of
fewer than all of the Warrant Shares issuable on such exercise at any time prior
to the Expiration Date, a new Warrant Certificate evidencing the remaining
Warrant or Warrants will be issued, and the Warrant Agent is hereby irrevocably
authorized to
11
countersign and to deliver the required new Warrant Certificate or Certificates
pursuant to the provisions of this Section and of Section 4 hereof, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrant Certificates duly executed on behalf of the Company for such
purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled by the Warrant Agent. Such canceled Warrant Certificates shall then
be disposed of by the Company in accordance with applicable law. The Warrant
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all monies received by the Warrant Agent for
the purchase of the Warrant Shares through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Warrant holders
during normal business hours at its office. The Company shall supply the
Warrant Agent from time to time with such numbers of copies of this Agreement as
the Warrant Agent may request.
SECTION 9. Reports. So long as any of the Warrants remain
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outstanding, the Company shall cause copies of all quarterly and annual
financial reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act ("SEC Reports") to be filed with the Warrant
Agent and mailed to the holders of Warrants, in each case, within 15 days after
filing with the SEC. So long as any of the Warrants remain outstanding, if the
Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall nevertheless continue to cause reports,
comparable to those that it would be required to file pursuant to Section 13 or
15(d) of the Exchange Act if it were then subject to the requirements of either
such Section, to be so filed with the SEC for public availability (unless the
SEC will not accept such a filing) and with the Warrant Agent and mailed to the
holders of Warrants, in each case, within the same time periods as would have
applied (including under the preceding sentence) had the Company then been
subject to the requirements of Section 13 or 15(d) of the Exchange Act. The
Company shall make available to investors and prospective investors of the
Warrants information that satisfies the requirements of Rule 144A(d) (4) under
the Securities Act.
SECTION 10. Payment of Taxes. No service charge shall be made to any
----------------
holder of a Warrant for any exercise, exchange or registration of transfer of
Warrant Certificates, and the Company will pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants or to any Separation; provided that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue of any Warrant Certificates or any certificates for Warrant Shares
in a name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall
12
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 11. Mutilated or Missing Warrant Certificates. If any of the
-----------------------------------------
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue and the Warrant Agent may countersign, in exchange
and substitution for and upon cancellation of, the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity and security therefor, if requested, also
satisfactory to them. Applicants for such substitute Warrant Certificates shall
also comply with such other reasonable regulations and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe.
SECTION 12. Reservation of Warrant Shares. The Company will at all
-----------------------------
times reserve and keep available, free of preemptive rights and free from all
taxes, liens, charges and security interests with respect to the issuance
thereof, out of the aggregate of its authorized but unissued Class A Common
Stock, for the purpose of enabling it to satisfy any obligation to issue Warrant
Shares upon the exercise of Warrants, the maximum number of Class A Common Stock
which may then be deliverable upon the exercise of all outstanding Warrants.
The Company or the transfer agent for the Class A Common Stock (the
"Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent the stock certificates required to
honor outstanding Warrants upon exercise thereof in accordance with the terms of
this Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available to
the Warrant Agent any cash which may be payable as provided in Section 17
hereof. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to each holder pursuant
to Section 18 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will be, upon payment of the Exercise Price and issuance
thereof, duly and validly issued, fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issuance thereof.
13
SECTION 13. Obtaining Stock Exchange Listings. The Company shall
---------------------------------
from time to time take all action necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges, interdealer quotation systems and markets,
if any, on which any shares of Common Stock are then listed or quoted.
SECTION 14. Consolidations, Mergers and Sales of Assets. In the
-------------------------------------------
event the Company consolidates with, merges with or into, or sells all or
substantially all of its property and assets to another Person, and in
connection therewith, consideration to the holders of shares of Common Stock in
exchange for their shares is (a) not payable solely in cash, each Warrant
thereafter shall entitle the holder thereof to receive upon exercise thereof the
number of shares of capital stock or other securities or property which the
holder of any shares of Common Stock is entitled to receive upon completion of
such consolidation, merger or sale of assets ("Merger Consideration") or (b)
payable solely in cash ("Cash Payment"), or in the event of the dissolution,
liquidation or winding-up of the Company, then the holders of the Warrants will
receive distributions on an equal basis with the holders of shares of Common
Stock or other securities issuable upon exercise of the warrants, as if the
Warrants had been exercised immediately prior to such event, less the Exercise
Price; provided, however, that in the event of that such consolidation, merger
-------- -------
or sale of assets constitutes a "Qualified Sale of the Company" (as defined in
each of the Indentures), only the holders of Warrants issued and outstanding on
the date of such consolidation, merger or sale shall be entitled to the Merger
Consideration or Cash Payment, as the case may be; provided, further that if
--------
such consolidation, merger or sale does not constitute a Qualified Sale of the
Company, the holders of Senior Notes and Convertible Notes who are entitled,
under certain circumstances, to receive Senior Note Contingent Warrants or
Convertible Note Contingent Warrants, respectively, shall not receive the Merger
Consideration or Cash Payment, as the case may be, on the date other Initial
Warrant holders are entitled to receive the Merger Consideration or Cash
Payment, as the case may be, until (i) March 30, 1998 with respect to the Senior
Note Contingent Warrants, but only if the holders of Senior Notes would have
been entitled to receive the Senior Note Contingent Warrants on such date or
(ii) September 30, 1999 with respect to the Convertible Note Contingent
Warrants, but only if the holders of Convertible Notes would have been entitled
to receive the Convertible Note Contingent Warrants on such date. Upon receipt
of such Cash Payment, if any, the Warrants will expire and the rights of the
holders thereof will cease.
In the event the Company is required pursuant to the provisions of
this Section 14 to make a Cash Payment as a result of any such merger,
consolidation or sale of assets, the surviving or acquiring Person, and in the
event of any dissolution, liquidation or winding-up of the Company, the Company,
shall deposit promptly with the Warrant Agent the funds, if any, necessary to
pay the holders of the Warrants. After such funds and the surrendered Warrant
Certificate are received, the Warrant Agent shall make payment by delivering a
check in such amount as is appropriate to such Person or Persons as it may be
directed in writing by the holders surrendering such Warrants.
14
SECTION 15. Adjustment of Number of Warrant Shares.
--------------------------------------
(a) In case the Company shall (i) make a dividend or other
distribution on the Common Stock exclusively in Common Stock, (ii) make a
dividend or other distribution on the Common Stock in shares of its capital
stock other than Common Stock, (iii) subdivide its outstanding shares of Common
Stock or (iv) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, the number and kind of shares of Common Stock
or capital stock of the Company issuable upon the exercise of a Warrant (as in
effect immediately prior to such dividend or distribution) shall be
proportionately adjusted so that the holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company that such holder would have owned immediately following such dividend or
distribution if such Warrant had been exercised immediately prior thereto.
(b) Subject to the last sentence of paragraph (g) of this Section, in
case the Company shall make a dividend or other distribution on the Common Stock
consisting exclusively of, or shall otherwise issue to all holders of the Common
Stock, rights, options or warrants entitling the holders thereof to subscribe
for or purchase Common Stock or securities convertible into or exchangeable for
Common Stock at a price per share (determined on an as-converted or as-exercised
basis if the rights, options or warrants pertain to securities convertible into
or exchangeable for shares of Common Stock) less than the Current Market Price
(determined as provided in paragraph (h) of this Section) on the date fixed for
the determination of shareholders entitled to receive such rights, options or
warrants, the Number of Shares shall be determined by multiplying the Number of
Shares purchasable immediately prior to the date so fixed by a fraction, of
which the numerator shall be the number of shares of Common Stock outstanding on
the date fixed for determining stockholders entitled to receive such rights,
options or warrants plus the number of additional shares of Common Stock offered
for subscription or purchase, and of which the denominator shall be the number
of shares of Common Stock outstanding on the date fixed for determining
stockholders entitled to receive such rights, options or warrants plus the
number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at the Current Market Price;
provided, however, that no further adjustment to the Number of Shares shall be
-------- -------
made upon the subsequent issue or sale of Common Stock pursuant to such options
or warrants. For the purposes of this paragraph (b), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of Common Stock. The Company shall not
issue any rights, options or warrants in respect of Common Stock held in the
treasury of the Company.
(c) [Intentionally Omitted.]
(d) (i) Subject to the last sentence of this paragraph (d) (i) and
the last sentence of paragraph (g) of this Section, in case the Company shall,
by dividend or otherwise, distribute to all holders of Common Stock evidences of
its
15
indebtedness, cash or other assets (including securities, but excluding any
rights, options or warrants referred to in paragraph (b) of this Section,
excluding any dividend or distribution paid exclusively in cash out of
consolidated current or retained earnings as shown on the books of the Company
prepared in accordance with GAAP (other than any Extraordinary Cash Dividend (as
hereinafter defined)) and excluding any dividend or distribution referred to in
paragraph (a) of this Section, the Number of Shares shall be increased by
multiplying the Number of Shares issuable immediately prior to the close of
business on the date fixed for the determination of shareholders entitled to
such distribution by a fraction of which the numerator shall be the Current
Market Price (determined as provided in paragraph (h) of this Section) on such
date and the denominator shall be the Current Market Price on such date less the
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors) on
such date of the portion of the evidences of indebtedness, shares of capital
stock, cash and other assets to be distributed applicable to one share of Common
Stock, such increase to become effective immediately prior to the opening of
business on the day following such date; provided, that, in the event that the
--------
amount of such dividend as so determined is equal to or greater than 100% of
such Current Market Price, in lieu of the foregoing adjustment, adequate
provision shall be made so that the holder of a Warrant shall receive a pro rata
share of such dividend based upon the maximum number of shares of Common Stock,
at the time issuable to such holder (determined without regard to whether the
Warrant is exercisable at such time). If the Board of Directors determines the
fair market value of any distribution for purposes of this paragraph (d) (i) by
reference to the actual or when-issued trading market for any securities
comprising part or all of such distribution, it must in doing so consider the
prices in such market over the same period used in computing the Current Market
Price pursuant to paragraph (h) of this Section, to the extent possible. For
purposes of this paragraph (d) (i), an "Extraordinary Cash Dividend" shall be
that portion, if any, of the aggregate amount of all cash dividends paid in any
fiscal year which exceed $25,000,000. For purposes of this paragraph (d), any
dividend or distribution that includes Common Stock, rights, options or warrants
to subscribe for or purchase Common Stock or securities convertible into or
exchangeable for Common Stock shall be deemed to be (x) a dividend or
distribution of the evidences of indebtedness, cash, assets or shares of capital
stock other than such Common Stock, such rights, options or warrants or such
convertible or exchangeable securities (making any increase in the Number of
Shares required by this paragraph (d) (i) immediately followed by (y) in the
case of such Common Stock or such rights, options or warrants, a dividend or
distribution thereof (making any further adjustment to the Number of Shares
required by paragraph (a) and (b) of this Section, except any shares of Common
Stock included in such dividend or distribution shall not be deemed "outstanding
at the close of business on the date fixed for such determination" within the
meaning of paragraph (a) of this Section), or (z) in the case of such
convertible or exchangeable securities, a dividend or distribution of the number
of shares of Common Stock as would then be issuable upon the exercise or
exchange thereof, whether or not the exercise or exchange of such securities is
subject to any conditions (making any further reduction in Number of Shares
required by paragraph (a) of this Section, except the shares deemed to
constitute such dividend or distribution shall not be
16
deemed "outstanding at the close of business on the date fixed for such
determina tion" within the meaning of paragraph (a) of this Section).
(ii) In case the Company shall issue Common Stock for a
consideration per share less than the Current Market Price (determined as
provided in paragraph (h) of this Section), the Number of Shares shall be
increased by multiplying the Number of Shares issuable immediately prior to the
close of business on the date on which the Company fixes the offering price of
such additional shares by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding immediately after giving effect to such
issuance and the denominator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus a fraction equal to the aggregate consideration received by
the Company from the issuance of such additional shares of Common Stock over the
Current Market Price on the date on which the Company fixes the offering price
of such additional shares (determined as provided in paragraph (h) of this
Section), and the increase in the Number of Shares provided for in the preceding
sentence shall not apply upon (i) the issuance of securities in transactions
described in paragraphs (a), (b), (d) (i), and d (iii), or (f) of this Section
or pursuant to the exercise, exchange or conversion of any such securities (to
the extent applicable, including the 9% Preferred Stock (as defined below));
(ii) the issuance of Common Stock upon the exercise or exchange of securities
(including options) convertible or exchangeable for shares of Common Stock
outstanding on the date of this Warrant Agreement, or issuable pursuant to
binding agreements in effect on the date of this Warrant Agreement as set forth
on a schedule to the Senior Note Indenture; (iii) the issuance of Common Stock
upon the exercise of options issued to the Company's directors, officers and
employees under bona fide employee benefit plans adopted by the Board of
Directors and approved by the holders of Common Stock when required by law or
otherwise where such issuances have been approved by the Board of Directors (but
only to the extent that the aggregate number of shares excluded pursuant to this
subclause (iii) and issued after the date of this Warrant Agreement shall not
exceed 3% of the Common Stock outstanding at the time of issuance; provided,
--------
that options granted pursuant to this subclause (iii) exercisable for no more
than 2% of such outstanding Common Stock may have exercise prices less than 50%
of the price per share based on a valuation of the Company of $122,500,000);
(iv) the issuance of Common Stock to shareholders of any person that immediately
or subsequently merges with or into the Company or any subsidiary thereof in
proportion to their stock holdings of such person immediately prior to such
merger, upon such merger; (v) the issuance of Common Stock in a bona fide
underwritten public offering; (vi) the issuance of Common Stock in a bona fide
private placement through a placement agent that is a member firm of the
National Association of Securities Dealers, Inc. (except to the extent that any
discount from the Current Market Price (determined as provided in paragraph (h)
of this Section) attributable to restrictions on transferability of the Common
Stock, as determined in good faith by the Board of Directors and described in a
resolution thereof which shall be filed with the Warrant Agent, shall exceed
20%), or issuable pursuant to a binding agreement in effect on the date of this
Warrant Agreement; (vii) the issuance of Common Stock as a dividend on any
securities outstanding on the date of this Warrant Agreement required to be made
17
pursuant to the certificate of designation pertaining to such securities in
effect at the time such securities were issued; (viii) the issuance of Common
Stock upon the exercise of Initial Warrants; (ix) the issuance of Common Stock
upon the exercise of Contingent Warrants; (x) the issuance of Common Stock upon
the exercise of Additional Warrants or the conversion of convertible securities
that may be issued pursuant to Section 4.15 of the Convertible Note Indenture;
or (xi) the issuance of Common Stock upon the conversion of the Convertible
Notes.
(iii) In case the Company shall issue any securities convertible
into or exchangeable for Common Stock for a consideration per share of Common
Stock (including the minimum consideration per share payable upon exercise or
exchange of any securities convertible into or exchangeable for Common Stock)
initially deliverable upon exercise or exchange of such securities less than the
Current Market Price (determined as provided in paragraph (h) of this Section),
the Number of Shares shall be increased by multiplying the Number of Shares
issuable immediately prior to the close of business on the date on which the
Company fixes the offering price of such additional shares by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding
immediately prior to the issuance of such securities plus the maximum number of
shares of Common Stock deliverable upon exercise of or in exchange for such
securities at the initial exercise or exchange rate and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to
the issuance of such securities plus a fraction equal to the aggregate
consideration received for the issuance of such securities (including the
minimum consideration per share payable upon exercise or exchange of any
securities convertible into or exchangeable for Common Stock) over the Current
Market Price on the date on which the Company fixes the offering price of such
additional shares (determined as provided in paragraph (h) of this Section).
The increase in Number of Shares provided for in the preceding sentence shall
not apply to (i) securities issued in transactions described in paragraphs (a),
(b), (d) (i) and (d) (ii) of this Section or any shares of 9% Cumulative
Convertible PIK Preferred Stock, par value $1.00 per share (the "9% Preferred
Stock"), received as a dividend on the 9% Preferred Stock; (ii) convertible
securities issued to shareholders of any person that merges into the Company, or
with a Subsidiary of the Company, in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger; (iii) convertible
securities issued in a bona fide underwritten public offering; (iv) convertible
securities issued in a bona fide private placement through a placement agent
that is a member firm of the National Association of Securities Dealers, Inc.
(except to the extent that any discount from the Current Market Price
(determined as provided in paragraph (h) of this Section) attributable to
restrictions on transferability of Common Stock issuable upon exercise, as
determined in good faith by the Board of Directors and described in a resolution
thereof which shall be filed with the Warrant Agent, shall exceed 20% of the
then Current Market Price, or issuable pursuant to a binding agreement in effect
on the date of this Warrant Agreement; (v) stock options issued to the Company's
directors, officers or employees; (vi) the grant of any Supplemental Initial
Warrants; (vii) the grant of Contingent Warrants; (viii) the grant of Additional
Warrants or the issuance of convertible securities that may be
18
issued pursuant to Section 4.15 of the Convertible Note Indenture; or (ix) the
issuance of additional Convertible Notes pursuant to the Convertible Note
Indenture.
(e) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of Common Stock cash (excluding any cash that is
distributed as part of a distribution referred to in paragraph (d) (i) of this
Section or in connection with a transaction to which Section 14 applies) in an
aggregate amount that, together with (i) the aggregate amount of any other
distributions to all holders of Common Stock made exclusively in cash within the
12 months preceding the date fixed for the determination of shareholders
entitled to such distribution and in respect of which no adjustment in the
Number of Shares pursuant to paragraph (d) (i) or this paragraph (e) has been
made previously and (ii) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) as of such
date of determination of consideration payable in respect of any tender offer by
the Company or a Subsidiary for all or any portion of the Common Stock, and any
purchase by the Company of Common Stock in the open market, consummated within
the 12 months preceding such date of determination and in respect of which no
adjustment in the Number of Shares pursuant to paragraph (f) of this Section has
been made previously, exceeds 12.5% of the product of the Current Market Price
(determined as provided in paragraph (h) of this Section) on such date of
determination times the number of shares of Common Stock outstanding on such
date, the Number of Shares shall be increased by multiplying the Number of
Shares issuable immediately prior to the close of business on such date of
determination by a fraction of which the numerator shall be such Current Market
Price and the denominator shall be the Current Market Price (determined as
provided in paragraph (h) of this Section) on such date less the amount of cash
to be distributed at such time applicable to one share of Common Stock, such
increase to become effective immediately prior to the opening of business on the
day after such date.
(f) In case a tender or exchange offer made by the Company or any
subsidiary for all or any portion of the Common Stock shall be consummated, or
in case the Company shall purchase Common Stock in the open market, the Number
of Shares shall be increased by multiplying the Number of Shares issuable
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the sum of (A) the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders upon consummation of such tender
or exchange offer, or upon such purchase, and (B) the product of such Current
Market Price times such number of outstanding shares at the Expiration Time
minus the number of shares accepted for payment in such tender or exchange
offer, or so purchased (the "Purchased Shares") and the denominator shall be the
product of the Current Market Price (determined as provided in paragraph (h) of
this Section) times the number of shares of Common Stock outstanding (including
any Shares of Common Stock tendered or submitted for exchange) at the Expiration
Time. For the purpose of this paragraph, "Expiration Time" means either the
last time that tenders may be made pursuant to a tender offer or exchanges may
be made pursuant to an exchange offer, or the time of an agreement to purchase
shares in the open market, as the case may be. Any increase in the Number of
Shares pursuant to this
19
paragraph shall be made immediately following the close of business on the last
trading day used to compute Current Market Price; provided, however, that, such
increase shall be deemed to have become effective immediately prior to the
opening of business on the day following the Expiration Time. To the extent
that a holder exercises Warrants prior to the conclusion of the period for which
Current Market Price is to be calculated, any adjustment in the number of shares
of Common Stock issuable upon exercise of such Warrant shall inure to the
benefit of the holder of record of such Warrant at the close of business on the
first Trading Day following the Expiration Time. In no event shall the Number
of Shares be reduced as a result of the consummation of any of the transactions
contemplated by this paragraph (f).
(g) The reclassification of any class of Common Stock into securities
which include securities other than such class of Common Stock (other than any
reclassification upon a consolidation or merger to which Section 14 applies)
shall be deemed to involve (i) a distribution of such securities other than such
class of Common Stock to all holders of such class of Common Stock (and the
effective date of such reclassification shall be deemed to be "the date fixed
for the determination of shareholders entitled to such distribution" within the
meaning of paragraph (d) (i) of this Section), and (ii) a subdivision or
combination, as the case may be, of the number of shares of such class of Common
Stock outstanding prior to such reclassification into the number of such class
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be the day upon which such subdivision
becomes effective or the day upon which such combination becomes effective, as
the case may be, and the day upon which such subdivision or combination becomes
effective within the meaning of paragraph (a) of this Section). Rights, options
or warrants issued by the Company to all holders thereof to subscribe for or
purchase Common Stock entitling the holders thereof to subscribe for or purchase
Common Stock (either initially or under certain circumstances), which rights,
options or warrants (i) are deemed to be transferred with such Common Stock,
(ii) are not exercisable and (iii) are also issued in respect of future
issuances of Common Stock, in each case in clauses (i) through (iii) until or
upon the occurrence of a specified event or events ("Trigger Event"), shall for
purposes of this Section 15 not be deemed issued until the occurrence of the
earliest Trigger Event.
(h) For the purpose of any computation under this paragraph and
paragraphs (b), (d) and (e) of this Section, the current market price per share
of Common Stock (the "Current Market Price" per share of Common Stock of the
Company or any other security) on any date shall be deemed to be the average of
the daily Closing Prices for the 30 consecutive trading days commencing 45
trading days before the date in question. For the purpose of any computation
under paragraph (f) of this Section, the Current Market Price on any date shall
be deemed to be the average of the daily closing prices for the five consecutive
trading days commencing on the first trading day immediately following the
expiration time. Notwithstanding anything to the contrary contained in this
paragraph, (i) the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
conversion price pursuant to paragraph (a), (b), (d) or (e) above occurs on or
after the 15th trading day prior to the date in
20
question and prior to the "ex" date for the issuance or distribution requiring
such computation, the closing price for each trading day prior to the "ex" date
for such other event shall be adjusted by multiplying such closing price by the
same fraction by which the conversion price is so required to be adjusted as a
result of such other event, (ii) if the "ex" date for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment
to the conversion price pursuant to paragraph (a), (b), (d), (e) or (f) above
occurs on or after the "ex" date for the issuance or distribution requiring such
computation and on or prior to the date in question, the closing price for each
trading day on and after the "ex" date for such other event shall be adjusted by
multiplying such closing price by the reciprocal of the fraction by which the
conversion price is so required to be adjusted as a result of such other event,
and (iii) if the "ex" date for the issuance or distribution requiring such
computation is on or prior to the date in question, after taking into account
any adjustment required pursuant to clause (ii) of this proviso, the closing
price for each trading day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market value on the date in
question (as determined by the Board of Directors in a manner consistent with
any determination of such value for the purposes of paragraph (d) or (e) of this
Section, whose determination shall be conclusive and described in a resolution
of the Board of Directors) of the evidences of indebtedness, shares of Capital
Stock or assets being distributed applicable to one share of Common Stock of the
Company as of the close of business on the day before such "ex" date. If on any
date there has not been a Public Equity Offering or if there is no closing price
available for the Common Stock of the Company on any date, the Current Market
Price shall be determined (a) in good faith by the Board of Directors of the
Company and certified in a board resolution, based on the most recently
completed arms-length transaction between the Company and a person other than an
Affiliate (as defined in Rule 405 of the Securities Act of 1933, as amended) of
the Company and the closing of which occurs on such date or within such six-
month period of (b) if no transaction shall have occurred with the six-month
period preceding such date or if such transaction is in excess of $1 million, by
an Independent Financial Expert appointed in the manner provided for in
paragraph (i) of this Section 14.
(i) (i) If any event shall occur as to which the other provisions of
this Section 15 are not strictly applicable but the failure to make any
adjustment would have the effect of depriving holders of the benefit of all or a
portion of the exercise rights in respect of any Warrant in accordance with the
essential intent and principles of this Section 15, then, in each such case, the
Company shall appoint an Independent Financial Expert, which shall give its
opinion upon the adjustment, if any, on a basis consistent with the essential
intent and principles established in this Section 15 necessary to preserve,
without dilution, such exercise rights. Upon receipt of such opinion, the
Company will promptly mail a copy thereof to the holders and shall make the
adjustments described therein. As used herein, an "Independent Financial
Expert" is a firm (a) which does not, and whose directors, officers and
employees or affiliates do not have a direct or indirect financial interest in
the Company and (b) which, in the judgment of the Board of Directors, is
otherwise independent and qualified to perform the task for which it is to be
engaged.
21
(ii) The Company will not, by amendment of its articles of
incorporation or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Warrants, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders thereof against
dilution or other impairment. Without limiting the generality of the foregoing,
the Company (i) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of Class A Common Stock on the exercise of the Warrants
from time to time outstanding and (ii) will not take any action which results in
any adjustment of the Number of Shares if the total number of shares of Class A
Common Stock issuable after the action upon the exercise of all of the Warrants
would exceed the total number of shares of Class A Common Stock then authorized
by the Company's certificate of incorporation and available for the purposes of
issue upon such exercise.
(j) The Company may, but shall not be obligated to, make such
increases in the Number of Shares, in addition to those required by paragraphs
(a), (b), (d), (e), (f) and (g) of this Section, as it considers to be advisable
in order that any event treated for United States federal income tax purposes as
a dividend of stock or stock rights shall not be taxable to the recipients or if
that is not possible, to diminish any income taxes that are otherwise payable
because of such event.
(k) No adjustment in the Number of Shares shall be required unless
such adjustment (plus any other adjustments not previously made by reason of
this paragraph (k)) would require an increase or decrease of at least 1% in the
Number of Shares; provided, however, that any adjustments which by reason of
this paragraph (k) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(l) In any case in which this Section 15 shall require that an
adjustment in the Number of Shares be made effective as of or immediately after
a record date for a specified event, the Company may elect to defer until the
occurrence of such event (i) issuing to the holder of any Warrant exercised
after such record date the shares of Common Stock and other capital stock of the
Company, if any, issuable upon such exercise over and above the shares of Common
Stock and other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Number of Shares prior to such adjustment and (ii)
paying to such holder any amount in cash in lieu of a fractional share pursuant
to Section 17 hereof; provided, however, that the Company shall deliver to such
-------- -------
holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder's right
to receive such additional shares of Common Stock, other capital stock and cash
upon the occurrence of the event requiring such adjustment.
(m) (i) No adjustment need be made for a transaction referred to in
subsections (a), (b), (e) or (f) of this Section 15 if holders are to
participate in the transaction on a basis and with notice that the Board of
Directors determines to
22
be fair and appropriate in light of the basis and notice on which holders of
shares of Common Stock of the Company participate in the transaction.
(ii) No adjustment need be made for (x) a transaction referred to
in subsections (b), (d) (ii) or (d) (iii) of this Section 15 if the below market
portion of such issuances, taken together with the below market portion of all
other below market issuances and with the above market portion of all above
market tender or exchange offers described in clause (y) of this paragraph made
on and after the date of this Warrant Agreement, is less than 2.0% of the
product of the Current Market Price and the number of outstanding shares ("Total
Capitalization") of the Company (determined by reference to the sum of the
percentages of Total Capitalization of the Company attributable to each such
transaction on the date thereof) and (y) a transaction referred to in subsection
(f) of this Section 15 if the above market portion of such tender or exchange
offers, taken together with the above market portion of all other above market
tender or exchange offers and with the below market portion of all below market
issuances described in clause (x) of this paragraph made on or after the date of
this Warrant Agreement, is less than 2.0% of the Total Capitalization of the
Company (determined by reference to the sum of the percentages of Total
Capitalization of the Company attributable to each such transaction on the date
thereof).
(iii) No adjustment need be made for a change in the par value, or
from par value to no par value, or from no par value to par value, of the Common
Stock.
SECTION 16. [Intentionally Omitted.]
SECTION 17. Fractional Interests. The Company shall not be required
--------------------
to issue fractional Warrant Shares on the exercise of Warrants. If more than
one Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 17,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall notify the Warrant Agent in writing of the amount to be paid in
lieu of the fraction of a Warrant Share and concurrently pay or provide to the
Warrant Agent for payment to the Warrant holder an amount in cash equal to the
product of (i) such fraction of a Warrant Share multiplied by (ii) the
difference of the Current Market Price of Class A Common Stock on the trading
day immediately preceding the date the Warrant is presented for exercise over
the Exercise Price, computed to the nearest whole cent.
23
SECTION 18. Notices of Adjustments.
----------------------
(a) Whenever the Number of Shares is adjusted as herein provided:
(i) The Company shall compute the adjusted Number of Shares in
accordance with Section 15 and shall prepare a certificate signed by the
Treasurer or Chief Financial Officer of the Company setting forth the adjusted
Number of Shares and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall within 15 days thereafter be
filed (with a copy to each Trustee) at each office or agency maintained for the
purpose of exercise of Warrants pursuant to this Agreement; and
(ii) a notice stating that the Number of Shares has been adjusted
and setting forth the adjusted Number of Shares shall be prepared within 15 days
thereafter, and as soon as practicable after it is prepared, such notice shall
be furnished by the Company to each Trustee and mailed by the Company at its
expense to all registered holders at their last addresses as they shall appear
in the Warrant register.
(b) In case:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than exclusively in cash
or (ii) exclusively in cash in an amount that would require an adjustment in the
Number of Shares pursuant to paragraph (e) of Section 15; or
(ii) the Company shall authorize the granting to the holders of
its shares of Common Stock of rights, options or warrants to subscribe for or
purchase any shares of Capital Shares of any class or of any other rights
(excluding shares of Capital Shares or options for Capital Shares issued
pursuant to a benefit plan for employees, officers or directors of the Company);
or
(iii) of any reclassification of the shares of any class of
Common Stock of the Company (other than a subdivision or combination of the
outstanding shares of such class of Common Stock), or of any consolidation,
merger or share exchange to which the Company is a party and for which approval
of any shareholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company or any subsidiary shall commence a tender or
exchange offer for all or a portion of the outstanding shares of Common Stock
(or shall amend any such tender or exchange offer to change the maximum number
of shares being sought or the amount or type of consideration being offered
(including by exchange) therefor); then the Company shall cause to be filed at
each
24
office or agency maintained pursuant to this Agreement, and shall cause to be
mailed to all registered holders at their last addresses as they shall appear in
the Warrant register, at least 21 days (or 11 days in any case specified in
clause (a), (b) or (e) above) prior to the applicable record, effective or
expiration date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution or granting
of rights, options or warrants, or, if a record is not to be taken, the date as
of which the holders of its shares of Common Stock of record who will be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, (y) the date on which such reclassification, consolidation, merger,
share exchange, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of its shares of Common Stock of record shall be entitled to exchange
their shares of Common Stock, for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on which such
tender or exchange offer (other than an exchange offer contemplated by clause
(y) above) commenced, the date on which such tender or exchange offer is
scheduled to expire unless extended, the consideration offered and the other
material terms thereof (or the material terms of any amendment thereto).
Neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of any action described in clauses (a) through (e) of
this Section 18.
SECTION 19. Warrant Agent. The Warrant Agent undertakes the duties
-------------
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound.
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company. The Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate in respect of any action taken, suffered or omitted by
it here under in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to
25
be genuine and to have been signed, sent or presented by the proper party or
parties. The Warrant Agent shall not be bound by any notice or demand, or any
waiver, modification, termination or revision of this Agreement or any of the
terms hereof, unless evidenced by a writing between the Company and the Warrant
Agent.
(e) The Company agrees to pay to the Warrant Agent such reasonable
compensation from time to time as agreed between the Company and the Warrant
Agent for all services rendered by the Warrant Agent hereunder and in connection
with the execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes (including withholding taxes and the reasonable fees and
expenses of its counsel and agents) and governmental charges and other charges
of any kind and nature incurred by the Warrant Agent in the execution, delivery
and performance of its responsibilities under this Agreement and to indemnify
the Warrant Agent and save harmless against any and all losses, liabilities, or
expenses, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the execution, delivery and performance of its
responsibilities under this Agreement except as a result of its negligence,
willful misconduct or bad faith. The provisions of this Section 19(e) shall
survive termination of this Agreement and the resignation or removal of the
Warrant Agent.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this provision
shall not affect the power of the Warrant Agent to take such action as it may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent and any recovery of judgment shall
be for the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) Except as required by law, the Warrant Agent, and any stockholder,
director, officer or employee of the Warrant Agent, may buy, sell or deal in any
of the Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not Warrant Agent under this Agreement. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own negligence or bad
faith.
26
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Number of Shares or other securities or property
deliverable as provided in this Agreement, or to determine whether any facts
exist which may require any of such adjustments, or with respect to the nature
or extent of any such adjustments, when made, or with respect to the method
employed in making the same. The Warrant Agent shall not be accountable with
respect to the validity or value or the kind or amount of any Warrant Shares or
of any securities or property which may at any time be issued or delivered upon
the exercise of any Warrant or with respect to whether any such Warrant Shares
or other securities will when issued be validly issued and fully paid and
nonassessable, and makes no representation with respect thereto.
SECTION 20. Merger, Consolidation or Change of Name of Warrant Agent.
--------------------------------------------------------
Any corporation into which the 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 shall be a party, or any corporation succeeding to
the business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder 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 21 hereof. To the extent practicable, the Warrant Agent shall provide
prior written notice to the Company of any such merger, consolidation,
succession or similar change with respect to the Warrant Agent; provided,
however, that the failure to deliver such notice will not affect the rights of
any of the parties hereto. In case at the time such successor to the Warrant
Agent shall succeed to the agency created by this Agreement, and in case at that
time any of the Warrant Certificates shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this 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 whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been 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
and effect provided in the Warrant Certificates and in this Agreement.
SECTION 21. Change of Warrant Agent. If the Warrant Agent shall
-----------------------
become incapable of acting as Warrant Agent or shall resign as provided below,
the Company shall appoint a successor to such Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified
27
in writing of such incapacity by the Warrant Agent or by the registered holders
of a majority of Warrant Certificates, then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. The holders of a majority of
the unexercised Warrants shall be entitled at any time to remove the Warrant
Agent and appoint a successor to such Warrant Agent. Such successor to the
Warrant Agent need not be approved by the Company or the former Warrant Agent.
After appoint ment the successor to the 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 former Warrant Agent
shall deliver and transfer to the successor to the Warrant Agent any property at
the time held by it here under and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in Section 21, however, or any defect therein, shall not affect the
legality or validity of the appointment of a successor to the Warrant Agent.
The Warrant Agent may resign at any time and be discharged from the
obligations hereby created by so notifying the Company in writing at least 30
days in advance of the proposed effective date of its resignation. If no
successor Warrant Agent accepts the engagement hereunder by such time, the
Company shall act as Warrant Agent.
SECTION 22. Notices to the Company and Warrant Agent. Any notice or
----------------------------------------
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made when and if deposited in the mail, first class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
United USN, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder(s) of any Warrant Certificate to the Warrant Agent shall
be sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
28
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Notice may also be given by facsimile transmission (effective when
receipt is acknowledged) (effective at the time of delivery) or by overnight
delivery service (effective the next business day).
SECTION 23. Supplements and Amendments. The Company and the Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
consent of any holders of Warrant Certificates in order to cure any ambiguity or
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not in any way
materially adversely affect the interests of the holders of Warrant
Certificates. Any amendment or supplement to this Agreement that has a material
adverse effect on the interests of holders shall require the written consent of
registered holders of a majority of the then outstanding Warrants. The consent
of each holder of a Warrant affected shall be required for any amendment
pursuant to which the Exercise Price would be increased or the Number of Shares
purchasable upon exercise of Warrants would be decreased (other than in
accordance with Sections 15 or 17 hereof). In executing any amendment or
supplement, the Warrant Agent shall be entitled to receive an opinion of counsel
to the effect that such amendment or supplement is authorized and permitted by
this Agreement.
SECTION 24. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 25. Termination. This Agreement shall terminate at 5:00
-----------
p.m., New York, New York time on September 30, 2003. Notwithstanding the
foregoing, this Agreement will terminate on such earlier date on which all
outstanding Warrants have been exercised. The provisions of Sections 19 and 27
hereof shall survive such termination.
SECTION 26. Governing Law; Jurisdiction. This Agreement and each
---------------------------
Warrant Certificate shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
in the State of New York. The Company irrevocably consents to the jurisdiction
of any United States or State Court located in the State of New York in any suit
or proceeding based on or arising under this Agreement or the Warrant
Certificates and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. The Company irrevocably waives
the defense of an inconvenient forum to the maintenance of such suit or
proceeding. The Company hereby agrees to designate and appoint Corporation
Service Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as an agent upon
whom process may be served
29
in any suit or proceeding based on or arising under this Agreement. The Company
further agrees that service of process upon the Company, or upon an agent
appointed pursuant to the preceding sentence accompanied with written notice of
said service to the Company, as the case may be, mailed by first class mail
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. Nothing herein shall affect the Warrant Agent's
or any Warrant holder's right to serve process in any other manner permitted by
law. The Company agrees that a final non-appealable judgment in any such suit
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
SECTION 27. Benefits of This Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 28. Counterparts. This 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 29. Further Assurances. From time to time on and after the
------------------
date hereof, the Company shall deliver or cause to be delivered to the Warrant
Agent such further documents and instruments and shall do and cause to be done
such further acts as the Warrant Agent shall reasonably request (it being
understood that the Warrant Agent shall have no obligation to make such request)
to carry out more effectively the provisions and purposes of this Agreement, to
evidence compliance herewith or to assure itself that it is protected hereunder.
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
UNITED USN, INC.
By: ________________________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS
BANK, as Warrant Agent
By: ________________________________
Name:
Title:
31
EXHIBIT A
EXERCISABLE ON OR AFTER ______________, 1996
AND ON OR BEFORE SEPTEMBER 30, 2003
Form of Warrant Certificate
Face
No. _____
CUSIP [91311C___] [Accredited]
[91311C___] [144A]
Warrant Certificate
UNITED USN, INC.
This Warrant Certificate certifies that ___________, or its registered
assigns, is the registered holder of __________ warrants expiring September 30,
2003 (the "Warrants") to purchase _____________ shares of Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"), of United USN, Inc. ("the
Company"). Each Warrant entitles the holder upon exercise to receive from the
Company, at any time on or after 9:00 a.m., New York, New York time on
_______________, 1997 and on or prior to the close of business on a date seven
years following the date of the Warrant Agreement ____________ fully paid and
nonassessable shares ("Number of Shares") of Class A Common Stock (each a
"Warrant Share") at the initial exercise price (the "Exercise Price") of $.01
per share payable in the form of cash or certified check, official bank check or
bank cashier's check payable to the order of the Company, upon surrender of this
Warrant Certificate and payment of the aggregate Exercise Price at the office or
agency of the Warrant Agent, but only subject to the conditions set forth herein
and in the Warrant Agreement referred to herein. The Exercise Price and number
of Warrant Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Warrant
Agreement. All capitalized terms not defined herein shall have the meaning
assigned to such terms in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York, New York time
on September 30, 2003 and to the extent not exercised by such time such Warrants
shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
32
This Warrant Certificate shall be governed and construed in accordance
with the internal laws of the State of New York.
IN WITNESS WHEREOF, United USN, Inc. has caused this Warrant
Certificate to be signed by its Chief Executive Officer and by its Secretary,
each by a facsimile of his signature, and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted hereon.
Dated:
UNITED USN, INC.
By: ______________________________
Chief Executive Officer
By: ______________________________
Secretary
(seal)
Countersigned:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Warrant Agent
By: _____________________
Authorized Signatory
33
Form of Warrant Certificate
Reverse
UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RE-
STRICTIONS SET FORTH IN SECTION 7 OF THE WARRANT AGREEMENT.
UNTIL THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (I) A DATE 180
DAYS AFTER THE ISSUE OF THE WARRANTS, (II) SUCH DATE AS ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
MAY DETERMINE, (III) THE COMMENCEMENT OF AN EXCHANGE OFFER RELATING TO THE
14% SENIOR DISCOUNT NOTES DUE 2003 (THE "NOTES") OF UNITED USN, INC. (THE
"COMPANY"), (IV) IN THE EVENT OF CHANGE OF CONTROL (AS DEFINED IN THE
INDENTURE RELATING TO THE NOTES), THE DATE THE COMPANY MAILS NOTICE THERE-
OF TO HOLDERS OF THE NOTES, THE WARRANTS EVIDENCED HEREBY MAY NOT BE SOLD,
ASSIGNED OR OTHERWISE TRANSFERRED TO ANY PERSON UNLESS, SIMULTANEOUSLY WITH
SUCH TRANSFER, THE HOLDER HEREOF TRANSFERS TO SUCH TRANSFEREE $1,000
PRINCIPAL AMOUNT OF NOTES AND A WARRANT TO PURCHASE ____________ SHARES OF
CLASS A COMMON STOCK OF THE COMPANY (SUBJECT TO ADJUSTMENT UNDER SECTION 15
34
OF THE WARRANT AGREEMENT, DATED AS OF SEPTEMBER 30, 1996, BETWEEN THE
COMPANY AND ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS WARRANT AGENT) SO TRANS-
FERRED.
THE WARRANTS REPRESENTED HEREBY AND, AS OF THE DATE THIS WARRANT
CERTIFICATE WAS ORIGINALLY ISSUED, THE SHARES OF CLASS A COMMON STOCK, $.01
PAR VALUE PER SHARE (THE "CLASS A COMMON STOCK") PURCHASABLE UPON THEIR
EXERCISE (THE "WARRANT SHARES"), HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, NEITHER THIS WARRANT NOR
THE WARRANT SHARES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND ANY
APPLICABLE STATE SECURITIES LAWS AND THE HOLDER OF THIS CERTIFICATE, IF SO
REQUESTED BY THE COMPANY, HAS DELIVERED TO THE COMPANY AN OPINION OF
COUNSEL TO SUCH EFFECT, OR (3) TO A LIMITED NUMBER OF INSTITUTIONAL
"ACCREDITED INVESTORS" (AS DEFINED IN RULE 501(a) (1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) THAT, PRIOR TO THEIR PURCHASE OF ANY SECURITIES
OFFERED HEREBY, DELIVER TO THE INITIAL PURCHASERS A LETTER CONCERNING
CERTAIN REPRESENTATIONS AND AGREEMENTS OR (B) A REGISTRATION STATEMENT
UNDER THE ACT HAS BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE
SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), AND NO STOP ORDER
SUSPENDING THE EFFECTIVENESS OF SUCH REGISTRATION STATEMENT HAS BEEN ISSUED
BY THE SEC.
By accepting a Warrant Certificate bearing the legend above, each holder shall
be bound by all of the terms and provisions of the Warrant Agreement (a copy of
which is available on request to the Company or the Warrant Agent) as fully and
effectively as if such holder had signed the same.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring September 30, 2003, entitling the holder
upon exercise to receive ____________ shares of Class A Common Stock of the
Company (the "Class A Common Stock"), and are issued or to be issued pursuant to
a Warrant
35
Agreement, dated as of September 30, 1996 (the "Warrant Agreement"), duly
executed and delivered by the Company to ▇▇▇▇▇▇ Trust and Savings Bank, as
Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
Warrants may be exercised at any time on or after 9:00 a.m., New York,
New York time on _________________, 1997 and on or prior to the close of
business on September 30, 2003. The holder of Warrants evidenced by this
Warrant Certificate may exercise them by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed and
executed, together with payment of the Exercise Price in the form of cash or
certified or official bank check or official bank cashier's check payable to the
order of the Company, at the office of the Warrant Agent. In the event that
upon any exercise of Warrants evidenced hereby the number of Warrants exercised
shall be less than the total number of Warrants evidenced hereby, there shall be
issued to the holder hereof or his assignee a new Warrant Certificate evidencing
the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain
events the Number of Shares set forth on the face hereof may, subject to certain
conditions, be adjusted. No fractional shares of Class A Common Stock will be
issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by a legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this
36
Warrant Certificate entitles any holder hereof to any rights of a stockholder of
the Company.
37
Form of Election to Purchase
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _______ shares of Class A
Common Stock and herewith tenders payment for such shares to the order of United
USN, Inc. in the amount of $____ in accordance with the terms hereof.
The undersigned requests that a certificate for such shares be
registered in the name of _______________________, whose address is
________________________ and that such shares be delivered to ________________,
whose address is _______________.
If said number of shares is less than all of the shares of Common
Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of __________________, whose address is _______________ and that such
Warrant Certificate be delivered to _________________, whose address is
__________________.
Date: _____________
Your Signature:___________________
(Sign exactly as your name appears on the face of this Warrant)
Signature Guarantee:
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
___________________________
___________________________
Please print or typewrite name and address including zip code of assignee
__________________________________________________________
the within Warrant Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________
attorney to transfer the Warrants evidenced by said Warrant Certificate (the
"Warrants") on the books of the Company with full power of substitution in the
premises.
In connection with any transfer of the Warrants occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
three years
38
after the later of the original issuance of the Warrants or the last date on
which the Warrants were held by an affiliate of the Company, the undersigned
confirms, that without utilizing any general solicitation or general
advertising:
Check One
[_] (a) the Warrants are being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[_] (b) the Warrants are being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Warrant Certificate and the
Warrant Agreement.
If none of the foregoing boxes is checked, the Warrant Agent shall not be
obligated to register the Warrants in the name of any Person other than the
holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 7 (c) of the Warrant Agreement
shall have been satisfied.
Date: NOTICE: The signature to
this assignment must
correspond with the name as
written upon the face of the
within-mentioned instrument
in every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Warrant for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive officer
39
EXHIBIT B
FORM OF WARRANT SHARES LEGEND
"THE SHARES OF CLASS A COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT
(A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) AND ANY APPLICABLE STATE SECURITIES LAWS AND
THE HOLDER OF THIS CERTIFICATE, IF SO REQUESTED BY THE COMPANY, HAS DELIVERED TO
THE COMPANY AN OPINION OF COUNSEL TO SUCH EFFECT, OR (3) TO A LIMITED NUMBER OF
INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED IN RULE 501(a) (1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) THAT, PRIOR TO THEIR PURCHASE OF ANY SECURITIES
OFFERED HEREBY, DELIVER TO THE INITIAL PURCHASERS A LETTER CONCERNING CERTAIN
REPRESENTATIONS AND AGREEMENTS OR (B) A REGISTRATION STATEMENT UNDER THE ACT
HAS BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE SECURITIES AND EXCHANGE
COMMISSION (THE "SEC"), AND NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF SUCH
REGISTRATION STATEMENT HAS BEEN ISSUED BY THE SEC.