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EXHIBIT II
WARRANT AGREEMENT
between
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
and
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
as Warrant Agent
___________________________
Dated as of April 20, 2001
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TABLE OF CONTENTS
Page
Section 1. Definitions................................................1
Section 2. Form of Warrant; Execution; Registration...................3
2.1 Form of Warrant; Execution of Warrants.....................3
2.2 Registration...............................................3
2.3 Countersignature of Warrants...............................3
Section 3. Transfer and Exchange of Warrants..........................4
Section 4. Term of Warrants; Exercise of Warrants; Compliance with
Government Regulation......................................4
4.1 Term of Warrants...........................................4
4.2 Exercise of Warrants.......................................5
4.3 Compliance with Government Regulations; Qualification
under Securities Laws......................................6
Section 5. Payment of Taxes...........................................6
Section 6. Mutilated or Missing Warrant Certificates..................6
Section 7. Reservation of Warrant Shares..............................7
Section 8. Listings; Quotation........................................7
Section 9. Adjustment of Exercise Price; Number of Warrant Shares
into Which Warrants are Exercisable........................7
9.1 Mechanical Adjustments.....................................8
(a) Adjustment for Change in Capital Stock............8
(b) Adjustment for Rights Issue.......................8
(c) Adjustment for Other Distributions................9
(d) Adjustment for Common Stock and Convertible
Securities Issue..................................9
(e) Current Market Price; Price Per Share............10
(f) When De Minimis Adjustment May Be Deferred.......11
(g) Adjustment in Exercise Price.....................11
(h) When No Adjustment is Required...................11
(i) Capitalization, Reclassification or
Consolidation....................................12
(j) Shares of Common Stock...........................12
(k) Expiration of Rights, etc........................13
9.2 Notice of Adjustment......................................13
9.3 Preservation of Purchase Rights upon Merger or
Consolidation.............................................13
9.4 Statement on Warrants.....................................14
Section 10. Fractional Interests......................................14
Section 11. No Rights as Stockholders.................................14
Section 12. Payments in U.S. Currency................................14
Section 13. Merger or Consolidation or Change of Name of Warrant
Agent.....................................................14
Section 14. Appointment of Warrant Agent..............................15
14.1 Correctness of Statements.................................15
14.2 Breach of Covenants.......................................15
14.3 Performance of Duties.....................................15
14.4 Reliance on Counsel.......................................15
14.5 Proof of Actions Taken....................................15
14.6 Compensation and Indemnification..........................15
14.7 Legal Proceedings.........................................16
14.8 Other Transactions in Securities of Company...............16
14.9 Liability of Warrant Agent................................16
14.10 Reliance on Documents.....................................16
14.11 Validity of Agreement.....................................16
14.12 Instructions from Company.................................17
Section 15. Change of Warrant Agent...................................17
Section 16. Notices...................................................17
Section 17. Cancellation of Warrants..................................18
Section 18. Supplements and Amendments................................18
Section 19. Successors................................................19
Section 20. Applicable Law............................................19
Section 21. Benefits of this Agreement................................19
Section 22. Counterparts..............................................19
Section 23. Captions..................................................19
WARRANT AGREEMENT, dated as of April 20, 2001, between Vencor, Inc.
(to be renamed Kindred Healthcare, Inc.), a Delaware corporation (the
"Company"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Warrant Agent (together with any successors and assigns, the "Warrant
Agent").
W I T N E S S E T H:
WHEREAS, the Company and certain affiliates of the Company were
Debtors and Debtors-in-Possession in the jointly administered cases (the
"Chapter 11 Cases") filed under title 11 of the U.S. Code, as amended from
time to time ("the Bankruptcy Code") in the United States Bankruptcy Court
for the District of Delaware (the "Bankruptcy Court"), entitled "In re
Vencor, Inc., et al., Debtors and Debtors in Possession," Chapter 11 Case
Nos. 99-3199 through 99-3327;
WHEREAS, in connection with and as part of the transactions to be
consummated pursuant to the confirmation of a Plan of Reorganization (as
amended, modified or supplemented from time to time) of the Company and its
affiliated debtors in the Chapter 11 Cases (the "Plan"), the Company has
agreed to issue two series of Warrants (the "Series A Warrants" and the
"Series B Warrants" and, collectively, the "Warrants"), with the Series A
Warrants exercisable for the purchase of an aggregate of 2,000,000 shares
of Common Stock (as defined herein) of the Company and the Series B
Warrants exercisable for the purchase of an aggregate of 5,000,000 shares
of Common Stock of the Company;
WHEREAS, by Order signed by the Bankruptcy Court on March 16, 2001 and
entered on the docket of the Bankruptcy Court on March 19, 2001, the
Bankruptcy Court confirmed the Plan;
WHEREAS, the Plan contemplates that the Company will enter into
certain agreements, including, without limitation, this Warrant Agreement;
WHEREAS, the Company desires to issue the Warrants, each of which
entitles the holder thereof to purchase one share of its Common Stock (each
of said shares of Common Stock deliverable upon exercise of the Warrants, a
"Warrant Share"); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act in connection with the
issuance, division, transfer, exchange and exercise of Warrants.
NOW, THEREFORE, in consideration of the foregoing, to implement the
terms of the Plan, and for the purpose of defining the terms and provisions
of the Warrants and the respective rights and obligations thereunder of the
Company and the registered owners of the Warrants (the "Holders") and any
security into which they may be exchanged, the Company and the Warrant
Agent hereby agree as follows:
Section 1. Definitions. The following terms, as used herein, have the
following meanings (all terms defined in the singular to have the
correlative meanings when used in the plural and vice versa):
"Agreement" means this Warrant Agreement, as the same may be amended,
modified or supplemented from time to time.
"Assets" has the meaning ascribed to such term in Section 9.1(c)
hereof.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
any day on which banking institutions located in the City of New York, New
York or Minneapolis, Minnesota are required or authorized by law or by
local proclamation to close, or (c) any day on which the New York Stock
Exchange is closed.
"Commercially Reasonable Efforts", when used with respect to any
obligation to be performed or term or provision to be observed hereunder,
means such efforts as a reasonably prudent Person seeking the benefits of
such performance or action would make, use, apply or exercise to preserve,
protect or advance its rights or interests, provided that such efforts do
not require such Person to incur a material financial cost or a substantial
risk of material liability unless such cost or liability (i) would
customarily be incurred in the course of performance or observance of the
relevant obligation, term or provision, (ii) is caused by or results from
the wrongful act or negligence of the Person whose performance or
observance is required hereunder, or (iii) is not excessive or unreasonable
in view of the rights or interests to be preserved, protected or advanced.
Such efforts may include, without limitation, the expenditure of such funds
and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the
relevant action; the undertaking of any special audit or internal
investigation that may be necessary or appropriate to effect the relevant
action; and the commencement, termination or settlement of any action, suit
or proceeding involving such Person to the extent necessary or appropriate
to effect the relevant action.
"Common Stock" means the common stock, par value $0.25 per share, of
the Company after the Effective Date (defined in the Plan as "New Common
Stock").
"Convertible Securities" has the meaning ascribed to such term in
Section 9.1(d) hereof.
"Effective Date" has the meaning ascribed to such term in the Plan.
"Exercise Period" has the meaning ascribed to such term in Section 4.1
hereof.
"Exercise Price" means, collectively, (i) $30.00 per Warrant Share for
the Series A Warrants (the "Series A Exercise Price") and (ii) $33.33 per
Warrant Share for the Series B Warrants (the "Series B Exercise Price"), in
each case as adjusted pursuant to Section 9 hereof.
"Holder" has the meaning ascribed to such term in the preamble hereto.
"NASD" has the meaning ascribed to such term in Section 4.2 hereof.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any regulatory authority or any other entity or
organization.
"Plan" has the meaning ascribed to such term in the preamble hereto.
"Price Per Share" has the meaning ascribed to such term in Section
9.l(e)(ii) hereof.
"Rights" has the meaning ascribed to such term in Section 9.l(b)
hereof.
"SEC" means the U.S. Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
"Series A Warrants" has the meaning ascribed to such term in the
preamble hereto.
"Series B Warrants" has the meaning ascribed to such term in the
preamble hereto.
"Subsidiary" has the meaning ascribed to such term in Section 9.1(c)
hereof.
"Transfer Agent" has the meaning ascribed to such term in Section 7
hereof.
"Warrant" has the meaning ascribed to such term in the preamble
hereto.
"Warrant Certificate" has the meaning ascribed to such term in Section
2.1 hereof
"Warrant Register" has the meaning ascribed to such term in Section
2.2 hereof.
"Warrant Share" has the meaning ascribed to such term in the preamble
hereto.
Section 2. Form of Warrant; Execution; Registration.
2.1 Form of Warrant; Execution of Warrants. The certificates
evidencing the Series A Warrants and the Series B Warrants (collectively,
the "Warrant Certificates") shall be in registered form only and shall be
issued initally in the form of a single, global Warrant Certificate for the
Series A Warrants and a single global Warrant Certificate for the Series B
Warrants, substantially in the form set forth as Exhibit A and Exhibit B
hereto, respectively, and in each case (i) bearing the legend set forth in
Exhibit C hereto, (ii) registered in the name of The Depository Trust
Company (the "DTC") or its nominee and (iii) deposited with the Warrant
Agent as custodian for the Holder. Transfers of beneficial interests in,
and exercises of, Warrants evidenced by a global Warrant Certificate may
only be made in accordance with the rules and regulations of the DTC.
Beneficial interests in Warrants evidenced by a global Warrant Certificate
may be exchanged upon request, in whole or in part, (a) in respect of
Series A Warrants, for a definitive Warrant Certificate substantially in
the form of Exhibit A hereto and (b) in respect of Series B Warrants, for a
definitive Warrant Certificate substantially in the form of Exhibit B
hereto, in each case registered in the name of the holder. The Warrant
Certificates shall be signed on behalf of the Company by its Chairman of
the Board, Chief Executive Officer, Chief Financial Officer or one of its
Vice Presidents. The signature of any such officer on the Warrant
Certificates may be manual or by facsimile. 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, shall be a proper officer of the
Company to sign such Warrant Certificate. Each Warrant Certificate shall be
dated the date it is countersigned by the Warrant Agent pursuant to Section
2.3 hereof.
2.2 Registration. The Warrant Certificates shall be numbered and shall
be registered on the books of the Company maintained at the principal
office of the Warrant Agent initially in Minneapolis, Minnesota (or such
other place in the continental United States as the Warrant Agent shall
from time to time notify the Company and the Holders in writing) (the
"Warrant Register") as they are issued. The Company and the Warrant Agent
shall be entitled to treat the registered owner of any Warrant as the owner
in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Warrant on the part of any
other person.
2.3 Countersignature of Warrants. The Warrant Certificates shall be
manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. Warrant Certificates may be countersigned,
however, by the Warrant Agent and may be delivered by the Warrant Agent
notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to be
such officers at the time of such countersignature, issuance or delivery.
The Warrant Agent shall, upon written instructions of the Chairman of the
Board, the Chief Executive Officer, Chief Financial Officer or any Vice
President of the Company, countersign, issue and deliver Warrant
Certificates entitling the Holders thereof to purchase not more than an
aggregate of 7,000,000 Warrant Shares (subject to adjustment pursuant to
Section 9 hereof) and shall countersign, issue and deliver Warrant
Certificates as otherwise provided in this Agreement.
Section 3. Transfer and Exchange of Warrants. Subject to the terms
hereof, the Warrant Agent shall initially countersign, register in the
Warrant Register and deliver Warrants hereunder in accordance with the
written instructions of the Company. Subject to the terms hereof and the
receipt of such documentation as the Warrant Agent may reasonably require,
the Warrant Agent shall thereafter from time to time register the transfer
of any outstanding Warrants upon the Warrant Register upon surrender of the
Warrant Certificate or Certificates evidencing such Warrants duly endorsed
or accompanied (if so required by it) by a written instrument or
instruments of transfer in form reasonably 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. Subject to the terms of this Agreement, each Warrant Certificate
may be exchanged for another Warrant Certificate or Certificates entitling
the Holder thereof to purchase a like aggregate number of Warrant Shares,
at the same exercise price and having the same term, as the surrendered
Warrant Certificate or Certificates then entitles such Holder to purchase.
Any Holder desiring to exchange a Warrant Certificate or Certificates shall
make such request in writing delivered to the Warrant Agent, and shall
surrender, duly endorsed or accompanied (if so required by the Warrant
Agent) by a written instrument or instruments of transfer in form
reasonably satisfactory to the Warrant Agent, the Warrant Certificate or
Certificates to be so exchanged. Upon registration of transfer, the Company
shall issue and the Warrant Agent shall countersign and deliver by
certified mail a new Warrant Certificate or Certificates to the persons
entitled thereto. Upon any partial transfer, a new Warrant Certificate of
like tenor and representing in the aggregate the number of Warrants which
were not so transferred, shall be issued to, and in the name of, the
Holder.
No service charge shall be made for any exchange or registration of
transfer of a Warrant Certificate or of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp tax or
other tax or other governmental charge that is imposed in connection with
any such exchange or registration of transfer pursuant to Section 5 hereof.
By accepting the initial delivery, transfer or exchange of Warrants,
each Holder shall be deemed to agree to the terms of this Agreement as it
may be in effect from time to time, including any amendments or supplements
duly adopted in accordance with Section 18 hereof.
Section 4. Term of Warrants; Exercise of Warrants; Compliance with
Government Regulation.
4.1 Term of Warrants. Subject to the terms of this Agreement, each
Holder shall have the right, until the expiration of the applicable
Exercise Period for the Warrants held, to receive from the Company the
number of Warrant Shares which the Holder may at the time be entitled to
receive upon exercise of such Warrants and payment of the Exercise Price
then in effect for such Warrant Shares, and the Warrant Shares issued to a
Holder upon exercise of its Warrants shall be duly authorized, validly
issued, fully paid and nonassessable. Each Warrant not exercised prior to
the expiration of its Exercise Period shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement shall
cease as of the expiration of such Exercise Period. The Exercise Period for
the Warrants shall begin at 9:00 a.m., New York City time, on the date of
their issuance, and end at 5:00 p.m, New York City time, on April 20, 2006
(five years after the Effective Date).
4.2 Exercise of Warrants. During the Exercise Period, each Holder may,
subject to this Agreement, exercise from time to time some or all of the
Warrants evidenced by its Warrant Certificate(s) by (i) surrendering to the
Company at the principal office of the Warrant Agent such Warrant
Certificate(s) with the form of election to purchase on the reverse thereof
duly filled in and signed, which signature shall be guaranteed by a bank or
trust company having an office or correspondent in the United States or a
broker or dealer which is a member of a registered security exchange or the
National Association of Securities Dealers, Inc. (the "NASD"), or, to the
extent held in "street" name, Holder shall comply with applicable law, and
(ii) paying to the Warrant Agent for the account of the Company the
aggregate Exercise Price for the number of Warrant Shares in respect of
which such Warrants are exercised. Warrants shall be deemed exercised on
the date such Warrant Certificate(s) are surrendered to the Warrant Agent
and tender of payment of the aggregate Exercise Price is received by the
Warrant Agent. Payment of the aggregate Exercise Price shall be made in
cash by wire transfer of immediately available funds to the Warrant Agent
for the account of the Company.
Upon the exercise of any Warrants in accordance with this Agreement,
the Company shall issue and cause to be delivered promptly, to or upon the
written order of the Holder and in the name of the Holder, a certificate or
certificates for the number of full Warrant Shares issuable upon exercise
of such Warrants, and shall take such other actions as are reasonably
necessary to complete the exercise of such Warrants (including, without
limitation, payment of any cash with respect to fractional interests
required under Section 10 hereof). The Warrant Agent shall have no
responsibility or liability for such issuance or the determination of the
number of Warrant Shares issuable upon such exercise. The certificate or
certificates representing such Warrant Shares shall have been issued and
the Holder shall be deemed to have become a holder of record of such
Warrant Shares as of the date such Warrants are exercised in accordance
with the terms hereunder. Each Warrant Share, when issued upon exercise of
the Warrants, shall be duly authorized, validly issued, fully paid and
non-assessable and shall be delivered free and clear of all claims, liens,
charges, security interests or encumbrances of any kind, including without
limitation any preemptive or similar rights.
In the event that less than all of the Warrants evidenced by a Warrant
Certificate are exercised, the Holder thereof shall be entitled to receive
a new Warrant Certificate or Certificates as specified by such Holder
evidencing the remaining Warrants, and the Warrant Agent is hereby
irrevocably authorized by the Company to countersign, issue and deliver the
required new Warrant Certificate or Certificates evidencing such remaining
Warrants pursuant to the provisions of this Section 4.2 hereof and of
Section 3 hereof. The Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates duly executed on behalf
to the Company for such purpose.
Upon delivery of the Warrant Shares issuable upon exercise in
accordance herewith and of any required new Warrant Certificates, the
Company shall direct the Warrant Agent by written order to cancel the
Warrant Certificates surrendered upon exercise. Such canceled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
permitted by applicable law and satisfactory to the Company in accordance
with its written instructions to the Warrant Agent. The Warrant Agent shall
inform promptly the Company with respect to Warrants exercised and
concurrently pay to the Company all amounts received by the Warrant Agent
upon 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 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 reasonably request.
4.3 Compliance with Government Regulations; Qualification under
Securities Laws. The Company is issuing the Warrants based upon the belief
that the issuance and the exercise of the Warrants, and the issuance of the
Warrant Shares upon exercise of the Warrants, are exempt from registration
under the Federal securities laws pursuant to Section 1145 of the
Bankruptcy Code. The Company covenants that if, following a due demand to
exercise Warrants, any Warrant Shares required to be reserved for purposes
of exercise of such Warrants require, under any federal or state law,
registration with or approval of any governmental authority before such
shares may be issued upon exercise, and the Holder requesting the exercise
of a Warrant provides an opinion of counsel acceptable to the Company to
the effect that the exercise of the Warrant requires registration, then the
Company will, unless the Company has received an opinion of counsel to the
effect that such registration is not then required by such laws, use its
Commercially Reasonable Efforts to cause such shares to be so registered or
approved, as the case may be; provided that in no event shall such Warrant
Shares be issued, and the exercise of all such Warrants shall be suspended,
for the period from the date of such due demand for exercise until such
registration or approval is in effect; provided, further, that the Exercise
Period for such Warrants (but only such Warrants) shall be extended one day
for each day (or portion thereof) that any such suspension is in effect.
The Company shall promptly notify the Warrant Agent of any such suspension,
and the Warrant Agent shall have no duty, responsibility or liability in
respect of any Warrant Shares issued or delivered prior to its receipt of
such notice. The Company shall promptly notify the Warrant Agent of the
termination of any such suspension, and such notice shall set forth the
number of days that the Exercise Period with respect to such Warrants shall
be extended as a result of such suspension.
Section 5. Payment of Taxes. The Company will pay all documentary
stamp and other like taxes, if any, attributable to the initial issuance
and delivery of the Warrants and the initial issuance and delivery of the
Warrant Shares upon the exercise of Warrants, provided, that the Company
shall not be required to pay any tax or taxes which may be payable in
respect of any transfer of the Warrants, and the Warrant Agent shall not
register any such transfer or issue or deliver any Warrant Certificate(s)
unless or until the persons requesting the registration or issuance shall
have paid to the Warrant Agent for the account of the Company the amount of
such tax (which the Warrant Agent shall then apply to the payment of such
tax), if any, or shall have established to the reasonable satisfaction of
the Company that such tax, if any, has been paid.
Section 6. Mutilated or Missing Warrant Certificates. In the event
that any Warrant Certificate shall be mutilated, lost, stolen or destroyed,
the Company shall issue, and at the direction of the Company by written
order the Warrant Agent shall countersign and deliver 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 all
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and an indemnity or bond, if
requested by the Company or the Warrant Agent, also reasonably satisfactory
to them. An applicant for such a substitute Warrant Certificate shall also
comply with such other reasonable procedures as the Company or the Warrant
Agent may reasonably require.
Section 7. Reservation of Warrant Shares. There have been reserved,
and the Company shall at all times keep reserved, free from preemptive
rights, out of its authorized Common Stock a number of shares of Common
Stock sufficient to provide for the exercise of the rights of purchase
represented by the outstanding Warrants. The transfer agent for the Common
Stock and every subsequent or other transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the Warrants (each, a
"Transfer Agent") will be and are hereby 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 each Transfer Agent. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from the Company or
a Transfer Agent, as the case may be, the certificates for Warrant Shares
required to honor outstanding Warrants upon exercise thereof in accordance
with the terms of this Agreement. The Company will supply its Transfer
Agent with duly executed stock certificates for such purposes and will
promptly provide or otherwise make available any cash which may be payable
as provided in Section 10 hereof. The Company will furnish to its Transfer
Agent a copy of all notices of adjustments and certificates related
thereto, transmitted to each Holder pursuant to Section 9.2 hereof. The
Company will give the Warrant Agent prompt notice of any change in any
Transfer Agent or any change of address of any Transfer Agent.
Before taking any action which would cause an adjustment pursuant to
Section 9 reducing the Exercise Price, the Company will take any and all
corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares (free
of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issuance thereof) at the Exercise Price as so
adjusted.
Section 8. Listings; Quotation. The Company shall use its Commercially
Reasonable Efforts (including requests for waivers) to have each series of
the Warrants listed on a national securities exchange or included for
quotation in the Nasdaq National Market or the Nasdaq Small Cap Market, and
shall use its Commercially Reasonable Efforts to maintain such listing or
inclusion. In the event the Warrants do not qualify for such listing or
inclusion, the Company will use its Commercially Reasonable Efforts
(including requests for waivers) to achieve such qualification and to
effect such inclusion or listing whenever the Warrants qualify therefor,
and prior to such time, shall use Commercially Reasonable Efforts to cause
some other customary trading market to admit the Warrants for trading.
Section 9. Adjustment of Exercise Price; Number of Warrant Shares into
Which Warrants are Exercisable. The number and kind of securities
purchasable upon the exercise of each Warrant, and the Exercise Price,
shall be subject to adjustment from time to time upon the happening of
certain events, as hereinafter described. The Warrant Agent shall be fully
protected in relying on the certificate described in Section 9.2 below
regarding the adjustment and on any adjustment therein contained, and shall
not be obligated or responsible for calculating any adjustment, nor shall
it be deemed to have knowledge of such an adjustment unless and until it
shall have received such certificate.
9.1 Mechanical Adjustments. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Exercise Price shall be subject
to adjustment as follows:
(a) Adjustment for Change in Capital Stock. Subject to paragraphs (f)
and (h) below, in the event the Company (i) pays a dividend on all its
outstanding shares of Common Stock in shares of Common Stock, or makes a
distribution of shares of Common Stock on all its outstanding shares of
Common Stock; (ii) makes a distribution on all its outstanding shares of
Common Stock in shares of its capital stock other than Common Stock; (iii)
subdivides its outstanding shares of Common Stock into a greater number of
shares of Common Stock; (iv) combines its outstanding shares of Common
Stock into a smaller number of shares of Common Stock; or (v) issues, by
reclassification of its shares of Common Stock, other securities of the
Company (including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving entity), then
the number of Warrant Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the Holder of each
Warrant shall be entitled to receive upon the exercise of the Warrant the
kind and number of Warrant Shares or other securities of the Company which
such Holder would have owned or have been entitled to receive upon the
happening of any of the events described above had such Warrant been
exercised in full immediately prior to the happening of such event or any
record date with respect thereto. If a Holder is entitled to receive shares
of two or more classes of capital stock of the Company pursuant to the
foregoing upon exercise of Warrants, the allocation of the adjusted
Exercise Price between such classes of capital stock shall be determined
reasonably and in good faith by the Board of Directors of the Company.
After such allocation, the exercise privilege and the Exercise Price with
respect to each class of capital stock shall thereafter be subject to
adjustment on terms substantially identical to those applicable to Common
Stock in this Section 9. An adjustment made pursuant to this paragraph (a)
shall become effective immediately after the record date for such event or,
if none, immediately after the effective date of such event. Such
adjustment shall be made successively whenever such an event occurs.
(b) Adjustment for Rights Issue. Subject to paragraphs (f), (h) and
(k) below, in case the Company shall issue rights, options or warrants
(collectively, "Rights") to all holders of its outstanding Common Stock
entitling them to subscribe for or purchase shares of Common Stock at a
Price Per Share (as defined in paragraph (e) below) which is lower at the
record date mentioned below than the Current Market Price (as defined in
paragraph (e) below) per share of Common Stock on such record date, then
the number of Warrant Shares thereafter purchasable upon the exercise of
each Warrant shall be determined (subject to readjustment pursuant to
Section 9.1(k) below) by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Warrant by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such Rights plus the additional
Number of Shares (as defined in paragraph (e) below) of Common Stock
offered for subscription or purchase in connection with such Rights and the
denominator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such Rights plus the number of
shares of Common Stock which the aggregate Proceeds (as defined in
paragraph (e) below) received or receivable by the Company upon exercise of
such Rights would purchase at the Current Market Price per share of Common
Stock at such record date. Such adjustment shall be made whenever Rights
are actually issued, and shall become effective on the date of distribution
retroactive to the record date for the determination of stockholders
entitled to receive such Rights.
(c) Adjustment for Other Distributions. Subject to paragraphs (f) and
(h) below, in case the Company shall distribute to all holders of shares of
its outstanding Common Stock (x) evidences of indebtedness or assets
(excluding cash dividends or distributions payable out of the consolidated
earnings or surplus legally available for such dividends or distributions
and dividends or distributions referred to in paragraphs (a) or (b) above)
of the Company or any corporation or other legal entity a majority of the
voting equity or equity interests of which are owned, directly or
indirectly, by the Company (a "Subsidiary"), or (y) shares of capital stock
of a Subsidiary (such evidences of indebtedness, assets and securities as
set forth in clauses (x) and (y) above, collectively, "Assets"), then in
each case the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon the exercise of each Warrant by
a fraction, the numerator of which shall be the Current Market Price per
share of Common Stock on the date of such distribution and the denominator
of which shall be such Current Market Price per share of Common Stock less
the fair value as of such record date as determined reasonably and in good
faith by the Board of Directors of the Company of the portion of the Assets
applicable to one share of Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the determination
of stockholders entitled to receive such distribution.
(d) Adjustment for Common Stock and Convertible Securities Issue.
Subject to paragraphs (f) and (h) below, in case the Company shall issue
shares of its Common Stock, or securities convertible into, or exchangeable
or exercisable for Common Stock or Rights to subscribe for or purchase such
securities (collectively, "Convertible Securities") (excluding the issuance
of (i) Common Stock or Convertible Securities issued in any of the
transactions described in paragraphs (a), (b) or (c) above or (ii) Warrant
Shares issued upon the exercise of the Warrants), at a Price Per Share of
Common Stock, in the case of the issuance of Common Stock, or at a Price
Per Share of Common Stock initially deliverable upon conversion, exercise
or exchange of such Convertible Securities, in each case, together with any
other consideration received by the Company in connection with such
issuance, below the Current Market Price per share of Common Stock on the
date the Company fixed the offering, conversion or exercise or exchange
price of such additional shares, then the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon exercise of each Warrant by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding on
such date plus the additional Number of Shares (as defined below) offered
for subscription or purchase and the denominator of which shall be the
number of shares of Common Stock outstanding on such date plus the
additional Number of Shares which the aggregate Proceeds (as defined below)
of the total amount of Convertible Securities so offered would purchase at
the Current Market Price per share of Common Stock at such record date. In
case the Company shall issue and sell Convertible Securities for a
consideration consisting, in whole or in part, of property other than cash
or its equivalent, then in determining the "Price Per Share" of Common
Stock and the "consideration received by the Company" for purposes of this
paragraph (d), the Board of Directors of the Company shall reasonably and
in good faith determine the fair value of such property. The determination
of whether any adjustment is required under this paragraph (d), by reason
of the sale and issuance of any Convertible Securities and the amount of
such adjustment, if any, shall be made at such time and not at the
subsequent time of issuance of shares of Common Stock upon the exercise,
conversion or exchange of Convertible Securities.
(e) Current Market Price; Price Per Share. (i) For the purpose of any
computation under this Section 9.1, the "Current Market Price" per share of
Common Stock at any date shall be the volume weighted daily average prices
for the 20 consecutive trading days preceding the date of such computation.
The closing price for each day shall be (x) if the Common Stock shall be
then listed or admitted to trading on the New York Stock Exchange, the
closing price on the NYSE - Consolidated Tape (or any successor composite
tape reporting transactions on the New York Stock Exchange) or (y) if such
a composite tape shall not be in use or shall not report transactions in
the Common Stock, or if the Common Stock shall be listed on a stock
exchange other than the New York Stock Exchange, the last reported sales
price regular way or, in case no such reported sale takes place on such
day, the average of the closing bid and asked prices regular way for such
day, in each case on the principal national securities exchange on which
the shares of Common Stock are listed or admitted to trading (which shall
be the national securities exchange on which the greatest number of shares
of the Common Stock have been traded during such 20 consecutive trading
days) or (z) if the Common Stock is not listed or admitted to trading, the
average of the closing bid and asked prices of the Common Stock in the
over-the-counter market as reported by the Nasdaq National Market or any
comparable system or, if the Common Stock is not included for quotation in
the Nasdaq National Market or a comparable system, the average of the
closing bid and asked prices as furnished by two members of the NASD
selected reasonably and in good faith from time to time by the Board of
Directors of the Company for that purpose. In the absence of one or more
such quotations, the Current Market Price per share of the Common Stock
shall be determined reasonably and in good faith by the Board of Directors
of the Company.
(ii) For purposes of this Section 9.1, "Price Per Share" shall be
defined and determined according to the following formula:
P = R/N
Where
P = Price Per Share;
R = the "Proceeds" received or receivable by the Company
which (x) in the case of shares of Common Stock is the
total amount received or receivable by the Company in
consideration for the issuance and sale of such shares;
(y) in the case of Rights or Convertible Securities with
respect to shares of Common Stock, is the total amount
received or receivable by the Company in consideration for
the issuance and sale of Rights or such Convertible
Securities, plus the minimum aggregate amount of
additional consideration, other than the surrender of such
Convertible Securities, payable to the Company upon
exercise, conversion or exchange thereof; and (z) in the
case of Rights to subscribe for or purchase such
Convertible Securities, is the total amount received or
receivable by the Company in consideration for the
issuance and sale of such Rights plus the minimum
aggregate amount of additional consideration, other than
the surrender of such Convertible Securities, payable upon
the exercise of the Right and the conversion or exchange
or exercise of such Convertible Securities; provided that
in each case the proceeds received or receivable by the
Company shall be the net cash proceeds after deducting
therefrom any compensation paid or discount allowed in the
sale, underwriting or purchase thereof by underwriters or
dealers or other performing similar services;
N = the "Number of Shares," which (x) in the case of Common
Stock is the number of shares issued; and (y) in the case
of Rights or Convertible Securities with respect to shares
of Common Stock, is the maximum number of shares of Common
Stock initially issuable upon exercise, conversion or
exchange thereof.
(f) When De Minimis Adjustment May Be Deferred. No adjustment in the
number of Warrant Shares purchasable hereunder shall be required unless
such adjustment would require an increase or decrease of at least three
percent (3%) in the number of Warrant Shares purchasable upon the exercise
of each Warrant, provided that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations shall be
made to the nearest one-hundredth of a Warrant Share and the nearest cent.
(g) Adjustment in Exercise Price. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant is adjusted as herein
provided, the Exercise Price payable upon exercise of each Warrant
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which shall be the number of
Warrant Shares purchasable upon the exercise of each Warrant immediately
prior to such adjustment and the denominator of which shall be the number
of Warrant Shares purchasable immediately thereafter.
(h) When No Adjustment is Required. No adjustment in the number of
Warrant Shares purchasable upon the exercise of each Warrant or in the
Exercise Price need be made under this Section 9.1 in connection with: (i)
the issuance of Common Stock, options, rights, Warrants or other securities
pursuant to the Plan; (ii) shares of Common Stock, options, rights,
warrants or other securities issued by the Company or its subsidiaries for
the benefit of employees or directors pursuant to any formal employee stock
plan or other employee benefit plan arrangement duly authorized by the
Board; (iii) any issuance of shares of Common Stock or Convertible
Securities pursuant to an underwritten public offering for a price per
share of Common Stock in the case of an issuance of shares of Common Stock,
or for a price per share of Common Stock initially deliverable upon
conversion or exchange of such securities, that is equal to or greater than
95% of the Current Market Price per share of Common Stock on the date the
Company fixed the offering, conversion or exchange price of such additional
shares of Common Stock; (iv) sales of Common Stock pursuant to a plan
adopted by the Company for reinvestment of dividends or interest; (v)
shares of Common Stock issued to shareholders of any corporation that is
acquired by, merged into or made a part or subsidiary of the Company in an
arm's-length transaction; or (vi) a change in the par value of the shares
of Common Stock. Additionally, no adjustment need be made if the Company
issues or distributes to each Holder of Warrants the shares, rights,
options, warrants, evidences of indebtedness, assets or other securities
referred to in those paragraphs which each Holder of Warrants would have
been entitled to receive had the Warrants been exercised for the number of
Warrant Shares for which Warrants are then exercisable prior to the
happening of such event or the record date with respect thereto.
(i) Capitalization, Reclassification or Consolidation. If any capital
reorganization of the Company, or any reclassification of the Common Stock,
or any consolidation of the Company with or merger of the Company with or
into any other Person, or any sale, lease or other transfer of all or
substantially all of the assets of the Company to any other Person, shall
be effected in such a way that the holders of the Common Stock shall be
entitled to receive stock, other securities, cash or other assets (whether
such stock, other securities, cash or other assets are issued or
distributed by the Company or another Person) with respect to or in
exchange for the Common Stock, then, upon exercise of each Warrant, the
Holder shall have the right to receive the kind and amount of stock, other
securities, cash or other assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer,
by a holder of the number of Warrant Shares that such Holder would have
been entitled to receive upon exercise of such Warrant had such Warrant
been exercised immediately before such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer, subject to
adjustments (as determined in good faith by the Board of Directors of the
Company). Adjustments for events subsequent to the effective date of such a
reorganization, reclassification, consolidation, merger, sale or transfer
of assets shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Agreement. In any such event, effective
provisions shall be made in the certificate or articles of incorporation of
the resulting or surviving corporation, in any contract of sale, merger,
conveyance, lease, transfer or otherwise so that the provisions set forth
herein for the protection of rights of the Holders shall thereafter
continue to be applicable; and any such resulting or surviving corporation
shall expressly assume the obligation to deliver, upon exercise, such
shares of stock, other securities, cash and property. The provisions of
Section 9 shall similarly apply to successive consolidations, mergers,
sales, leases or transfers.
(j) Shares of Common Stock. For all purposes of this Agreement, the
term "shares of Common Stock" shall mean (i) the class of stock designated
as the Common Stock of the Company at the date of this Agreement, or (ii)
any other class of stock resulting from successive reclassifications of
such shares consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. In the event that at any
time, as a result of an adjustment made pursuant to this Section 9.1, the
Holders shall become entitled to purchase any securities of the Company
other than shares of Common Stock, thereafter the number of such other
shares so purchasable upon exercise of each Warrant and the Exercise Price
of such shares shall be subject to adjustment from time to time in a manner
and on terms substantially identical to the provisions with respect to the
Warrant Shares contained in paragraphs (a) through (h) above, and the
provisions of this Agreement with respect to the Warrant Shares shall apply
on like terms to any such other securities.
(k) Expiration of Rights, etc. Upon the expiration of any Rights in
respect of which an adjustment has been made pursuant to Section 9.1(b), if
any thereof shall not have been exercised, the Exercise Price and the
number of Warrant Shares purchasable upon the exercise of each outstanding
Warrant shall be readjusted so that (i) any calculation previously made on
the basis of the additional number of shares of Common Stock offered for
subscription or purchase in connection with such Rights shall instead be
made on the basis of the additional number of shares of Common Stock
actually subscribed to or actually purchased in connection with such Rights
and (ii) any calculation previously made on the basis of the aggregate
offering price of the total number of shares issuable upon exercise of such
Rights shall instead be made on the basis of the aggregate offering price
of the total number of shares actually issued upon exercise of such Rights;
provided that if, as a result of such readjustment, the net adjustment to
the number of Warrant Shares purchasable, upon the exercise of each Warrant
as a result of the issuance and exercise of such Rights shall be
sufficiently small as to qualify for de minimis deferral pursuant to
Section 9.1(f), then the Exercise Price and the number of Warrant Shares
purchasable upon the exercise of each Warrant shall be as if no Rights had
ever been issued and the provisions of Section 9.1(f) shall otherwise
prevail.
9.2 Notice of Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Exercise Price of
Warrant Shares is adjusted, as herein provided, the Company shall cause the
Warrant Agent promptly to mail to each Holder notice of such adjustment or
adjustments and shall deliver to the Warrant Agent a certificate of a firm
of independent public accountants (who may be the regular accountants
employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Exercise Price of
Warrant Shares after such adjustment, setting forth a brief statement of
the facts requiring such adjustment and setting forth in reasonable detail
the computations by which such adjustment was made. The Warrant Agent shall
be entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the
same, from time to time, to any Holder requesting an inspection thereof
during reasonable business hours. The Warrant Agent shall not at any time
be under any duty or responsibility to any Holder to determine whether any
facts exist which may require any adjustment of the Exercise Price or the
number of Warrant Shares or other stock or property purchasable upon
exercise of Warrants, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed in making such
adjustment.
9.3 Preservation of Purchase Rights upon Merger or Consolidation. The
Company shall not merge or consolidate with or into any other entity unless
the successor entity (in the event the Company is not the successor entity)
shall expressly assume, by supplemental agreement reasonably satisfactory
in form and substance to the Warrant Agent in its sole judgment and
executed and delivered to the Warrant Agent, the due and punctual
performance and observance of the covenants and conditions of this
Agreement to be performed and observed by the Company. The provisions of
this Section 9.3 shall similarly apply to successive consolidations or
mergers. The Warrant Agent shall be under a good faith duty and
responsibility to determine the correctness of any provisions contained in
any such agreement relating to the kind or amount of shares of stock or
other securities or property receivable upon exercise of Warrants or with
respect to the method employed and provided therein for any adjustments and
shall be entitled to rely upon the provisions contained in any such
agreement. In the event of any conflict between this Section 9.3 and
Section 9.1(i), Section 9.1(i) shall prevail.
9.4 Statement on Warrants. Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the
exercise of the Warrants, Warrant Certificates theretofore or thereafter
issued may continue to express the same Exercise Price and number and kind
of Warrant Shares as are stated in the Warrant Certificates initially
issuable pursuant to this Agreement.
Section 10. Fractional Interests. Neither the Company nor the Warrant
Agent shall be required to issue fractional Warrant Shares on the exercise
of Warrants. If more than one Warrant shall be exercised at the same time
by the same Holder, the number of full Warrant Shares which shall be
issuable upon such exercise shall be computed on the basis of the aggregate
number of Warrants so exercised. If any fraction of a Warrant Share would,
except for the provisions of this Section 10, be issuable on the exercise
of any Warrant, then the Company shall pay an amount in cash equal to the
Current Market Price for one Warrant Share on the date the Warrant
Certificate is presented for exercise (determined in accordance with
Section 9.1(e) hereof), multiplied by such fraction.
Section 11. No Rights as Stockholders. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon
the Holders or their transferees the right to vote or to receive dividends
or to consent or to receive notice as stockholders in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
Section 12. Payments in U.S. Currency. All payments required to be
made hereunder shall be made in lawful money of the United States of
America.
Section 13. Merger or 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 corporation trust business of the Warrant
Agent, shall be the successor to the Warrant Agent hereunder without, other
than prompt written notice to the Company with respect thereto, 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 15
hereof. In case any of the Warrant Certificates shall have been
countersigned but not delivered at the time such successor to the Warrant
Agent shall succeed to the agency created by this Agreement, any such
successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in its name; and in all such cases such Warrant
Certificates shall be fully valid and effective as provided therein 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 may adopt the countersignatures under
its prior name and deliver such Warrant Certificates so countersigned; 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 be fully valid and effective as provided therein
and in this Agreement.
Section 14. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company hereunder and in
accordance with the terms and conditions hereof, and the Warrant Agent
hereby accepts such appointment and undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions.
14.1 Correctness of Statements. The statements contained herein and in
the Warrant Certificates shall be taken as statements of the Company, and
the Warrant Agent assumes no responsibility for the correctness of any of
the same except statements that describe the Warrant Agent or action taken
by it.
14.2 Breach of Covenants. 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.
14.3 Performance of Duties. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its duly appointed attorneys or
agents.
14.4 Reliance on Counsel. Before the Warrant Agent acts or refrains
from acting, the Warrant Agent may consult at any time with legal 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 in respect to any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the written opinion or the written
advice of such counsel.
14.5 Proof of Actions Taken. Whenever in the performance of its duties
under this Agreement the Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed conclusively to have been proved and established by a certificate
signed by any of the Chairman of the Board, Chief Executive Officer, Chief
Financial Officer or one of the Vice Presidents of the Company and
delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
14.6 Compensation and Indemnification. The Company agrees to pay the
Warrant Agent reasonable compensation for all services rendered by the
Warrant Agent in the performance of its duties under this Agreement, to
reimburse the Warrant Agent for all reasonable expenses, taxes and
governmental charges and other charges incurred by the Warrant Agent in the
performance of its duties under this Agreement (including but not limited
to the reasonable fees and expenses of a single legal counsel), and to
indemnify the Warrant Agent and its officers, agents and directors for and
to hold each harmless from and against any and all losses and liabilities,
including judgments, costs and reasonable counsel fees, for anything done
or omitted by the Warrant Agent or any of its agents in the performance of
its duties under this Agreement, except as a result of the Warrant Agent's
gross negligence or willful misconduct as determined in a final judgment of
a court of competent jurisdiction and authority. The Company's obligations
under this Section 14.6 and any claim arising hereunder shall survive the
resignation or removal of the Warrant Agent and the termination or
discharge of the Company's obligations under this Agreement.
14.7 Legal Proceedings. 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 material expense unless the Company or any one or
more Holders shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred or any
liabilities which may arise (but only to the extent such costs and expenses
or liabilities would be covered by the preceding Section 14.6), but this
provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or without
any such security or indemnity. All rights of action of any Holder under
this Agreement or under any of the Warrants may be enforced by the Warrant
Agent, and any 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 Holders, as their respective rights
or interests may appear.
14.8 Other Transactions in Securities of Company. Subject to the
provisions of applicable 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 any other securities of the Company or have a
pecuniary interest 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.
14.9 Liability of Warrant Agent. The Warrant Agent shall act hereunder
solely as agent, 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.
14.10 Reliance on Documents. The Warrant Agent will not incur any
liability or responsibility to the Company or to any Holder for any action
taken in reliance on any notice, resolution, waiver, consent order,
certificate, or other paper, document or instrument reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
14.11 Validity of Agreement. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Warrant Agent) or for any of the statements of fact or recitals contained
in this Agreement or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof) or any Warrant; nor shall
the Warrant Agent by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any Warrant Shares
(or other securities) to be issued pursuant to this Agreement or any
Warrant, or as to whether any Warrant Shares (or other securities) will,
when issued, be validly issued, fully paid and nonassessable, or as to the
Exercise Price or the number or amount of Warrant Shares or other
securities or any assets or other property issuable upon exercise of any
Warrant.
14.12 Instructions from Company. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the
performance of its duties hereunder from any person believed in good faith
by the Warrant Agent to be the Chairman of the Board, Chief Executive
Officer, the Chief Financial Officer or one of the Vice Presidents of the
Company, and to apply to such officers for advice or instructions in
connection with its duties, and shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with instructions of
any such officer or officers or any delay in acting while waiting for these
instructions.
Section 15. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
thirty (30) days' prior written notice. The Warrant Agent may be removed by
like notice to the Warrant Agent and the Holders from the Company, such
notice to specify the date when removal shall become effective. If the
Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, then the Company shall appoint a successor to the
Warrant Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after such removal or written notification of
such resignation or incapacity by the resigning or incapacitated Warrant
Agent, then any Holder may, at the Company's expense, apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or
such a court, shall be a bank or trust company, in good standing,
incorporated under the laws of the United States of America or any state
thereof and having at the time of its appointment as Warrant Agent a
combined capital and surplus of at least $100,000,000. After appointment
and acceptance of such appointment in writing, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Warrant Agent without further act or
deed; but the former Warrant Agent shall deliver and transfer to the
successor Warrant Agent any property at the time held by it hereunder, and
shall execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to file any notice provided for in this
Section 15, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be. In the
event of such resignation or removal, the successor Warrant Agent shall
promptly mail to each Holder written notice of such removal or resignation
and the name and address of such successor Warrant Agent.
Section 16. Notices. Any notice pursuant to this Agreement by the
Company or by any Holder to the Warrant Agent, shall be in writing and
shall be delivered in person or sent by registered or certified mail and
shall be deemed given upon receipt at its offices at:
If by mail:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
If in person:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Corporate Trust Services
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ South
12th Floor - Northstar ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice pursuant to this Agreement by the Warrant Agent or by any Holder
to the Company, shall be in writing and shall be delivered in person or
sent by registered or certified mail and shall be deemed given upon receipt
at its offices at Vencor, Inc. (to be renamed Kindred Healthcare, Inc.),
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel
and Chief Financial Officer. Each party hereto may from time to time change
the address to which its notices are to be delivered or mailed hereunder by
notice to the other party.
Any notice mailed pursuant to this Agreement by the Company or the
Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses in the Warrant Register. The initial address of each
Holder shall be as provided by the Company to the Warrant Agent. Any Holder
may change its address by notice to the Company and the Warrant Agent given
in accordance with this Section 16.
Section 17. Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire any Warrants, the same shall thereupon be
delivered to the Warrant Agent and be cancelled by it and retired. The
Warrant Agent shall cancel any Warrant Certificate surrendered for
exchange, substitution, transfer or exercise in whole or in part.
Section 18. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement, the
Warrants and the Warrant Certificates without approval of any Holder, 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 comply with the requirements of any national
securities exchange or the Nasdaq National Market or the Nasdaq Small Cap
Market, 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 be inconsistent with the
provisions of the Warrants and this Agreement. Any other supplement or
amendment to this Agreement may be made with the approval of the Holders of
a majority of outstanding Warrants of each series of Warrants, voting
separately as two classes. Notwithstanding anything in this Agreement to
the contrary, no supplement or amendment that changes the rights and duties
of the Warrant Agent under this Agreement will be effective against the
Warrant Agent without the execution of such supplement or amendment by the
Warrant Agent.
Section 19. 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 solely to the benefit of the Company or the Warrant Agent
and their respective successors hereunder.
Section 20. Applicable Law. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of
the state of New York without giving effect to the principles of conflict
of laws thereof.
Section 21. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the
Warrant Agent and the Holders any legal or equitable right, remedy or claim
under this Agreement; rather, this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent, their respective
successors, and the Holders.
Section 22. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and
the same instrument.
Section 23. Captions. The captions of the Sections and subsections of
this Agreement, have been inserted for convenience only and shall have no
substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
as Warrant Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
EXHIBIT A
TO WARRANT AGREEMENT
No. _______________ _____________ Warrants
Series A Warrant Certificate
CUSIP No. 494580-11-1
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
This Warrant Certificate certifies that _____________________ or
registered assigns, is the registered holder of Series A Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on April 20, 2006
(five years after the Effective Date of the Plan (as defined in the Warrant
Agreement referred to on the reverse side hereof)) (the "Expiration Date"),
to purchase Common Stock, $0.25 par value per share (the "Common Stock"),
of VENCOR, INC. (to be renamed Kindred Healthcare, Inc.), a Delaware
corporation (the "Company"). The Warrants may be exercised at any time from
9:00 a.m., New York City time, on April 20, 2001 to 5:00 p.m., New York
City time, on the Expiration Date. Each Warrant entitles the holder upon
exercise to receive from the Company, if exercised before 5:00 p.m., New
York City time, on the Expiration Date, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the Series A Exercise Price
(as defined in the Warrant Agreement referred to on the reverse side
hereof), payable in lawful money of the United States of America, upon
surrender of this Warrant Certificate and payment of the Series A Exercise
Price at the office or agency of the Warrant Agent, subject to the
conditions set forth herein and in the Warrant Agreement. The Series A
Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events as
set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
APRIL 20, 2006 (FIVE YEARS FROM THE EFFECTIVE DATE) 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.
IN WITNESS WHEREOF, VENCOR, INC. (to be renamed Kindred Healthcare,
Inc.) has caused this Warrant Certificate to be duly executed.
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
By:
------------------------------
Title:
---------------------------
Dated:
----------------------------------
Countersigned:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Warrant Agent
By:
--------------------------------
Authorized Signatory
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder upon exercise to receive shares of Common Stock of the Company and
are issued or to be issued pursuant to a Warrant Agreement dated as of
April 20, 2001 (the "Warrant Agreement"), duly executed and delivered by
the Company to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, 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. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Warrant Agent. By
accepting initial delivery, transfer or exchange of this Warrant
Certificate, the duly registered holder shall be deemed to have agreed to
the terms of the Warrant Agreement as it may be in effect from time to
time, including any amendments or supplements duly adopted in accordance
therewith.
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 aggregate Series A Exercise Price in the
manner described below 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 its assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
Payment of the aggregate Series A Exercise Price must be made in cash
by wire transfer to the Warrant Agent for the account of the Company.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock or type of stock issuable upon
the exercise of each Warrant, and the Series A Exercise Price of each
Warrant, may, subject to certain conditions, be adjusted. No fractions of a
share of Common Stock will be issued upon the exercise of any Warrant, but
the Company shall 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 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) hereof 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 Warrant Certificate entitles any holder hereof to any
rights of a stockholder of the Company.
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise ___ Warrant(s)
represented by this Warrant Certificate, according to the terms and
conditions hereof and hereby makes payment of $________ in payment of the
aggregate Series A Exercise Price thereof. If the number of Warrants
exercised shall not be all of the Warrants represented by this Warrant
Certificate, then a new Warrant Certificate for the balance remaining shall
be issued in the name of the undersigned or its assignee as indicated on
the Assignment Form.
Dated:
-----------------------------------
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name:
-----------------------------------------------------------------------
(please typewrite or print in block letters)
Address:
--------------------------------------------------------------------
Signature:
-------------------------------------------------------------
Note: The signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate
Signature Guaranteed:
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name: ___________________________________________________________________
(please typewrite or print in block letters)
Address:__________________________________________________________________
its right, title and interest in ___ Warrants represented by this Warrant
Certificate and does hereby irrevocably constitute and appoint _________
Attorney, to transfer the same on the books of the Company, with full power
of substitution in the premises.
Dated:
-----------------------------
Signature:
----------------------------
------------------------------------ Note: The signature must conform
Social Security or other identifying in all respects to name of
number of holder holder as specified on the face
of this Warrant Certificate
Signature Guaranteed:
EXHIBIT B
TO WARRANT AGREEMENT
No. _______________ _____________ Warrants
Series B Warrant Certificate
CUSIP 494580-12-9
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
This Warrant Certificate certifies that _____________________ or
registered assigns, is the registered holder of Series B Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on April 20, 2006
(five years after the Effective Date of the Plan (as defined in the Warrant
Agreement referred to on the reverse side hereof)) (the "Expiration Date"),
to purchase Common Stock, $0.25 par value per share (the "Common Stock"),
of VENCOR, INC. (to be renamed Kindred Healthcare, Inc.), a Delaware
corporation (the "Company"). The Warrants may be exercised at any time from
9:00 a.m., New York City time, on April 20, 2001 to 5:00 p.m., New York
City time, on the Expiration Date. Each Warrant entitles the holder upon
exercise to receive from the Company, if exercised before 5:00 p.m., New
York City time, on the Expiration Date, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the Series B Exercise Price
(as defined in the Warrant Agreement referred to on the reverse side
hereof), payable in lawful money of the United States of America, upon
surrender of this Warrant Certificate and payment of the Series B Exercise
Price at the office or agency of the Warrant Agent, subject to the
conditions set forth herein and in the Warrant Agreement. The Series B
Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events as
set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
APRIL 20, 2006 (FIVE YEARS FROM THE EFFECTIVE DATE) 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.
IN WITNESS WHEREOF, VENCOR, INC. (to be renamed Kindred Healthcare,
Inc.) has caused this Warrant Certificate to be duly executed.
VENCOR, INC.
(to be renamed Kindred Healthcare, Inc.)
By:
---------------------------------
Title:
------------------------------
Dated:
-------------------------------
Countersigned:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Warrant Agent
By:
----------------------------------
Authorized Signatory
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder upon exercise to receive shares of Common Stock of the Company and
are issued or to be issued pursuant to a Warrant Agreement dated as of
April 20, 2001 (the "Warrant Agreement"), duly executed and delivered by
the Company to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, 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. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Warrant Agent. By
accepting initial delivery, transfer or exchange of this Warrant
Certificate, the duly registered holder shall be deemed to have agreed to
the terms of the Warrant Agreement as it may be in effect from time to
time, including any amendments or supplements duly adopted in accordance
therewith.
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 aggregate Series B Exercise Price in the
manner described below 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 its assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
Payment of the aggregate Series B Exercise Price must be made in cash
by wire transfer to the Warrant Agent for the account of the Company.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock or type of stock issuable upon
the exercise of each Warrant, and the Series B Exercise Price of each
Warrant, may, subject to certain conditions, be adjusted. No fractions of a
share of Common Stock will be issued upon the exercise of any Warrant, but
the Company shall 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 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) hereof 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 Warrant Certificate entitles any holder hereof to any
rights of a stockholder of the Company.
PURCHASE FORM
-------------
The undersigned hereby irrevocably elects to exercise ___ Warrant(s)
represented by this Warrant Certificate, according to the terms and
conditions hereof and hereby makes payment of $________ in payment of the
aggregate Series B Exercise Price thereof. If the number of Warrants
exercised shall not be all of the Warrants represented by this Warrant
Certificate, then a new Warrant Certificate for the balance remaining shall
be issued in the name of the undersigned or its assignee as indicated on
the Assignment Form.
Dated:__________________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name:
------------------------------------------------------------------------
(please typewrite or print in block letters)
Address:
---------------------------------------------------------------------
Signature:
----------------------------------------------------------
Note: The signature must conform in all respects to
name of holder as specified on the face of this Warrant
Certificate
Signature Guaranteed:
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name:
------------------------------------------------------------------------
(please typewrite or print in block letters)
Address:
---------------------------------------------------------------------
its right, title and interest in ___ Warrants represented by this Warrant
Certificate and does hereby irrevocably constitute and appoint _________
Attorney, to transfer the same on the books of the Company, with full power
of substitution in the premises.
Dated:
----------------------
Signature:
----------------------------
------------------------------------ Note: The signature must conform
Social Security or other identifying in all respects to name of
number of holder holder as specified on the face
of this Warrant Certificate
Signature Guaranteed:
EXHIBIT C
TO WARRANT AGREEMENT
UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR THE WARRANT AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR EXERCISE, AND ANY WARRANT CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY WARRANT SHARES ISSUED UPON THE
EXERCISE HEREOF ARE REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, EXERCISE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
