EXHIBIT (4)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
and
CITIBANK, N.A., as Warrant Agent
--------------------
WARRANT AGREEMENT
dated as of December 6, 2000
--------------------
1,600,000 EURO CURRENCY WARRANTS
EXPIRING FEBRUARY 28, 2002
TABLE OF CONTENTS
Page
PARTIES.......................................................................4
RECITALS......................................................................4
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book Entry Procedures;
Successor Depositary..........................................4
SECTION 1.02. Form, Execution and Delivery of Global Warrant Certificate.....5
SECTION 1.03. Global Warrant Certificate.....................................6
SECTION 1.04. Registration of Transfers and Exchanges........................6
SECTION 1.05. Warrant Certificates...........................................7
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants...........................................9
SECTION 2.02. Exercise and Delivery of Warrants..............................9
SECTION 2.03. Automatic Exercise Prior to the Expiration Date...............11
SECTION 2.04. Covenant of the Company.......................................12
SECTION 2.05. Return of Global Warrant Certificate..........................12
SECTION 2.06. Return of Money Held Unclaimed for Two Years..................13
SECTION 2.07. Designation of Agent for Receipt of Notice....................13
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights..........................13
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance...........13
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants......................................14
SECTION 4.02. Treatment of Holders..........................................14
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................................14
SECTION 5.02. Conditions of Warrant Agent's Obligations.....................15
SECTION 5.03. Resignation and Appointment of Successor......................17
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment.....................................................18
SECTION 6.02. Notices and Demands to the Company and Warrant Agent..........19
SECTION 6.03. Addresses for Notices.........................................19
SECTION 6.04. Notices to Holders............................................19
SECTION 6.05. Applicable Law................................................19
SECTION 6.06. Obtaining of Governmental Approvals...........................19
SECTION 6.07. Persons Having Rights Under Warrant Agreement.................20
SECTION 6.08. Headings......................................................20
SECTION 6.09. Counterparts..................................................20
SECTION 6.10. Inspection of Agreement.......................................20
SIGNATURES...................................................................21
EXHIBIT A - Form of Global Warrant Certificate
WARRANT AGREEMENT
THIS AGREEMENT, dated as of December 6, 2000, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and CITIBANK, N.A., a national banking association
duly incorporated and existing under the laws of the United States, as Warrant
Agent (the "Warrant Agent"),
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "Warrant") representing the right to receive from the Company
the Cash Settlement Amount (as defined herein) in U.S. dollars computed by
reference to increases in the "USD/EUR Rate", a foreign exchange spot rate
that measures the relative value of the Euro and the U.S. Dollar; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company
in connection with the issuance, transfer and exercise of the Warrants, and
wishes to set forth herein, among other things, the provisions of the Warrants
and the terms and conditions on which they may be issued, transferred,
exercised and cancelled;
NOW, THEREFORE, in consideration of the promises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book Entry
Procedures; Successor Depositary.
(a) The Warrants shall initially be represented by a single certificate (the
"Global Warrant Certificate"). Each Warrant shall represent the right, subject
to the provisions contained herein and in the Global Warrant Certificate, to
receive the Cash Settlement Amount, if any, (as defined in paragraph (d) of
Section 2.02) of such Warrant. In no event shall Holders (as defined in
Section 4.02) be entitled to receive any interest on any Cash Settlement
Amount (unless the Company shall default in the payment of such Cash
Settlement Amount). Beneficial owners of interests in the Global Warrant
Certificate shall not be entitled to receive definitive Warrants evidencing
the Warrants; provided, however, that if (i) the Depositary (as defined in
Section 1.01(b)) is at any time unwilling or unable to continue as Depositary
for the Warrants and a successor Depositary is not appointed by the Company
within 60 days, (ii) The Company executes and delivers to the Warrant Agent a
company order to the effect that the global warrants shall be exchangeable, or
(iii) the Company shall be adjudged bankrupt or insolvent or make an
assignment for the benefit of its creditors or institute proceedings to be
adjudicated bankrupt or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization under applicable law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver or
custodian of it or all or any substantial part of its property shall be
appointed, or if any public officer shall have taken charge or control of the
Company or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, the Company will issue Warrants in definitive
form in exchange for the Global Warrant Certificate. In addition, the Company
may at any time determine not to have the Warrants represented by a Global
Warrant Certificate and, in such event, will issue Warrants in definitive form
in exchange for the Global Warrant Certificate. In any such instance, and in
accordance with the provisions of this Agreement, each beneficial owner of an
interest in the Global Warrant Certificate will be entitled to have a number
of Warrants equivalent to such owner's beneficial interest in the Global
Warrant Certificate registered in its name and will be entitled to physical
delivery of such Warrants in definitive form by the Depositary Participant (as
defined in Section 1.01(c)) through which such owner's beneficial interest is
reflected. The provisions of Section 1.05 shall apply only if, and when,
Warrants in definitive form ("Warrant Certificates") are issued hereunder.
Unless the context shall otherwise require, all references in this Agreement
to the Global Warrant Certificate shall include the Warrant Certificates in
the event that Warrant Certificates are issued.
(b) The Global Warrant Certificate shall be deposited with the Depositary or
its agent (the term "Depositary", as used herein, initially refers to The
Depository Trust Company and includes any successor depositary selected by the
Company as provided in Section 1.01(d)) for credit to the accounts of the
Depositary Participants as shown on the records of the Depositary from time to
time.
(c) The Global Warrant Certificate will initially be registered in the name of
a nominee of the Depositary selected by the Company for the Warrants. The
Warrant holdings of Depositary Participants will be recorded on the books of
the Depositary. The holdings of customers of Depositary Participants will be
reflected on the books and records of such Depositary Participants and will
not be known to the Warrant Agent, the Company or to the Depositary.
"Depositary Participants" include securities brokers and dealers, banks and
trust companies, clearing organizations and certain other organizations which
are participants in the Depositary's system. The Global Warrant Certificate
will be held by the Depositary or its agent.
(d) The Company may from time to time select a new entity to act as Depositary
and, if such selection is made, the Company shall promptly give the Warrant
Agent written notice to such effect identifying the new Depositary, and the
Global Warrant Certificate shall be delivered to the Warrant Agent and shall
be transferred to the new Depositary as provided in Section 1.04 as promptly
as possible. Appropriate changes may be made in the Global Warrant
Certificate, the notice of exercise and the related notices delivered in
connection with an exercise of Warrants to reflect the selection of the new
Depositary.
SECTION 1.02. Form, Execution and Delivery of Global Warrant Certificate.
The Global Warrant Certificate shall be in registered form and substantially
in the form set forth in Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement. The Global Warrant Certificate may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which the Warrants may be listed or of the Depositary, or to conform to usage.
The Global Warrant Certificate shall be signed on behalf of the Company by its
President, Chairman of the Board, officer serving as Chief Financial Officer,
Treasurer, any Executive Vice President or any Vice President, manually or by
facsimile signature, and a facsimile of its corporate seal shall be impressed,
imprinted or engraved thereon, which shall be attested by its Secretary or any
Assistant Secretary, either manually or by facsimile signature. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of the Global
Warrant Certificate that has been duly authenticated and delivered by the
Warrant Agent.
In case any officer of the Company who shall have signed the Global Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Global Warrant Certificate so signed shall have been
authenticated and delivered by the Warrant Agent or delivered by the Company,
such Global Warrant Certificate nevertheless may be authenticated and
delivered as though the person who signed such Global Warrant Certificate had
not ceased to be such officer of the Company; and the Global Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Global Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
SECTION 1.03. Global Warrant Certificate. A Global Warrant Certificate
relating to 1,600,000 Warrants originally issued may be executed by the
Company and delivered to the Warrant Agent on or after the date of execution
of this Agreement. The Warrant Agent is authorized, upon receipt of the Global
Warrant Certificate from the Company, duly executed on behalf of the Company,
to authenticate such Global Warrant Certificate. The Global Warrant
Certificate shall be manually authenticated and dated the date of its
authentication by the Warrant Agent and shall not be valid for any purpose
unless so authenticated. The Warrant Agent shall authenticate and deliver the
Global Warrant Certificate to or upon the written order of the Company.
SECTION 1.04. Registration of Transfers and Exchanges. Except as
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depositary, to a
nominee of the Depositary, to a successor Depositary, or to a nominee of a
successor Depositary, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney. Upon any such registration of
transfer, the Company shall execute and the Warrant Agent shall authenticate
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of Unexercised Warrants
as evidenced by the Global Warrant Certificate at the time of such
registration of transfer.
The Global Warrant Certificate may be transferred as provided above at the
option of the Holder thereof when surrendered to the Warrant Agent at its
office or agency maintained for the purpose of transferring and exercising any
of the Warrants, which shall be south of ▇▇▇▇▇▇▇▇ Street in the Borough of
Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on
the date of this Agreement, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: Global Agency and Trust Services, or at the office of any
successor Warrant Agent as provided in Section 5.03, in exchange for another
Global Warrant Certificate of like tenor.
SECTION 1.05. Warrant Certificates. Any Warrant Certificates issued in
accordance with Section 1.01(a) shall be in registered form substantially in
the form set forth in Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are necessary or desirable
for individual Warrant Certificates, and may represent any integral multiple
of Warrants. The Warrant Certificates may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which the Warrants may be listed or of the Depositary, or to conform to usage.
Warrant Certificates shall be signed on behalf of the Company upon the same
conditions, in substantially the same manner and with the same effect as the
Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company, shall be
delivered to the Warrant Agent, which shall manually authenticate and deliver
the same to or upon the written order of the Company. Each Warrant Certificate
shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been authenticated by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant Certificate
shall be registered in such names and addresses (including tax identification
numbers) and in such denominations as shall be requested in writing by the
Depositary or its nominee in whose name the Global Warrant Certificate is
registered, upon written certification to the Company and the Warrant Agent in
form satisfactory to each of them of a beneficial ownership interest in the
Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in The
City of New York a register (the register maintained in such office and in any
other office or agency maintained by or on behalf of the Company for such
purpose being herein sometimes collectively referred to as the "Warrant
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Warrant
Certificates and the transfer of Warrant Certificates. The Warrant Agent is
hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and the transfer of Warrant Certificates as herein provided.
Upon surrender for registration of a transfer of a Warrant Certificate at an
office or agency of the Company maintained for such purpose, the Company shall
execute, and the Warrant Agent shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Warrant Certificates
of any authorized denominations and representing Warrants of a like aggregate
number.
At the option of the Holder, Warrant Certificates may be exchanged for other
Warrant Certificates of any authorized denominations and representing Warrants
of a like aggregate number, upon surrender of the Warrant Certificates to be
exchanged at such office or agency. Whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute, and the Warrant Agent
shall authenticate and deliver, the Warrant Certificates which the Holder
making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of a transfer or an
exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations of the Company, and entitled to the
same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for registration of a
transfer or for an exchange shall (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Warrant Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of a transfer or an
exchange of Warrant Certificates, but the Company or the Warrant Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of a transfer
or an exchange of Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
If there shall be delivered by a Holder to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate, (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless and (iii)
funds sufficient to cover any cost or expense to the Company (including any
fees and expenses, including legal fees and expenses, charged by the Warrant
Agent) relating to the issuance of a new Warrant Certificate, then, in the
absence of written notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its written request the Warrant Agent shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of
any destroyed, lost or stolen Warrant Certificate shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant Certificates duly
issued hereunder.
The provisions of this Section 1.05 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name such Warrant Certificate is
registered as the owner of such Warrant Certificate for all purposes hereunder
whatsoever, whether or not such Warrant Certificate has been transferred and
neither the Company, the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for registration of transfer or exchange
shall, if surrendered to any person other than the Warrant Agent, be delivered
to the Warrant Agent and shall be promptly cancelled by it. The Company may at
any time deliver to the Warrant Agent for cancellation any Warrant
Certificates previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly cancelled by the Warrant Agent. No
Warrant Certificates shall be authenticated in lieu of or in exchange for any
Warrant Certificates cancelled as provided in this Section 1.05, except as
expressly permitted by this Warrant Agreement. All cancelled Warrant
Certificates held by the Warrant Agent shall be disposed of as directed in
writing by the Company.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants. Subject to the limitations described
herein, each Warrant evidenced by the Global Warrant Certificate will expire
on February 28, 2002 (the "Expiration Date").
SECTION 2.02. Exercise and Delivery of Warrants.
(a) The warrants will be automatically exercised on the fourth scheduled
Business Day immediately preceding the Expiration Date (the "Exercise Date")
or, the Business Day immediately preceding the Warrants' delisting or
imposition of a permanent trading suspension on trading of the Warrants (the
"Delisting Date") or if certain events in bankruptcy, insolvency or
reorganization, as described herein, involving the Company occur (the "Early
Expiration Date").
(b) On the date of such automatic exercise, the Warrant Agent shall obtain the
Cash Settlement Amount, if any, from the Calculation Agent (as defined below),
advise the Company of the aggregate Cash Settlement Amount (as defined below),
if any, of the Warrants and advise the Company of such other matters relating
to the Warrants as the Company shall reasonably request in writing. Any notice
to be given to the Company by the Warrant Agent pursuant to this Section 2.02
or pursuant to Section 2.03 shall be by telephone and shall promptly be
confirmed in writing. Any notice to be given by the Calculation Agent to the
Warrant Agent pursuant to this Section 2.02 or pursuant to Section 2.03 shall
be by facsimile transmission to the address of the Warrant Agent set forth in
Section 6.03.
(c) The Company shall make available to the Warrant Agent, no later than 3:00
P.M., New York City time, on the Expiration Date, or if February 28, 2002 is
not a Business Day, on the next succeeding Business Day (the "Settlement
Date") funds in an amount sufficient to pay such aggregate Cash Settlement
Amount. Provided that the Company has made adequate funds available to the
Warrant Agent in such manner, the Warrant Agent shall make payment by check to
the relevant Depositary Participant, after 3:00 P.M., New York City time, but
prior to the close of business, on such Settlement Date. Any such payment
shall be in the amount of the aggregate Cash Settlement Amount in respect of
exercised Warrants for which delivery has been accepted by the Warrant Agent.
(d) The Cash Settlement Amount of a warrant is an amount, if positive,
equal to the greater of:
(i) zero, or
Spot Value - Strike Value
(ii) U.S. $50 x -------------------------
Strike Value
The "Spot Value" will be determined by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("MLPF&S") or any successor thereto, as the Calculation Agent
(the "Calculation Agent"), and will equal:
the bid rate of the U.S. Dollar per Euro in the interbank
market as reported by Reuters Group PLC ("Reuters") on page
FXFX at approximately 3:00 p.m. London time on the Exercise
Date.
The "Strike Value" equals 0.8695.
However, if the USD/EUR Rate is not so quoted on the date of automatic
exercise, then the Spot Value will be the exchange rate between Euro and U.S.
Dollars, based upon the noon buying rate in New York for cable transfers in
foreign currencies as announced by the Federal Reserve Bank of New York for
customs purposes (the "Noon Buying Rate"). If the Noon Buying Rate is not
announced on such date of automatic exercise, then the Spot Value will be
calculated on the basis of the arithmetic mean of the applicable spot
quotations received by the Calculation Agent at approximately 3:00 p.m. London
time on the relevant date for the purchase or sale by the Reference Dealers
(as defined herein) of the Reference Amount (as defined herein) for settlement
two Business Days later. If fewer than two Reference Dealers provide such spot
quotations, then the Spot Value will be calculated on the basis of the
arithmetic mean of the applicable spot quotations received by the Calculation
Agent at approximately 3:00 p.m. London time on the relevant date from three
leading commercial banks in New York (selected in the sole discretion of the
Calculation Agent), for the sale by such banks of the Reference Amount for
settlement two Business Days later. If these spot quotations are available
from fewer than three such banks, then the Calculation Agent, in its sole
discretion, shall determine which spot rate is available and reasonable to be
used. If no such spot quotation is available, then the Spot Value will be the
rate the Calculation Agent, in its sole discretion, determines to be fair and
reasonable under the circumstances at approximately 3:00 p.m., London time, on
the relevant date.
"Business Day", as used herein, means any day other than a Saturday or a
Sunday or a day on which commercial banks in The City of New York are required
or authorized by law or executive order to be closed.
"Reference Amount" is U.S.$869,500.
"Reference Dealers", as used herein, means Citibank, N.A., Deutsche Bank
Securities, Inc. and The Chase Manhattan Bank, or their successors.
The Cash Settlement Amount will be rounded, if necessary, to the nearest
cent, with one-half cent being rounded upwards.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes
and binding on the Company and the beneficial owners of the Warrants.
SECTION 2.03. Automatic Exercise Prior to the Expiration Date
(a) In the event the Warrants are delisted from, or permanently suspended from
trading on, the American Stock Exchange (the "AMEX") and the Warrants are not
simultaneously accepted for trading pursuant to the rules of another national
securities exchange, the Warrants will expire on the Business Day immediately
prior to the date on which such delisting or trading suspension becomes
effective (the "Delisting Date"), and the Warrants will be automatically
exercised at the close of business on such Delisting Date. The Company will
advise the Warrant Agent in writing of any expected delisting or permanent
suspension of trading of the Warrants as soon as it is practicable and will
immediately inform the Warrant Agent in writing after the Company has received
notice that such delisting or suspension has occurred and that the Warrants
are not accepted for listing on another national securities exchange, but in
no event will such notice be given to the Warrant Agent later than 5:00 P.M.,
New York City time, on the Business Day preceding the Delisting Date.
(b) The Warrants will expire on the date that any of the following events
occur and the Warrants will be automatically exercised on the Business Day
immediately preceding such date (the "Early Expiration Date"):
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or
for any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(ii) The Company commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in effect,
or shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial
part of its property, or shall make any general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance of any of
the foregoing.
(c) Upon the occurrence of any the events described in subsections (a) or (b)
above, the Cash Settlement Amount, if any, shall be determined by the
Calculation Agent pursuant to Section 2.02(d) as if the Delisting Date or
Early Expiration Date, as applicable, were the Exercise Date.
(d) The Warrant Agent shall, on the Exercise Date determined pursuant to
subsection (a) or (b) above, obtain the Cash Settlement Amount, if any, from
the Calculation Agent, advise the Company of the Cash Settlement Amount, if
any, of the Warrants evidenced by the Global Warrants Certificate and advise
the Company of such other matters relating to the Warrants as the Company
shall reasonably request in writing. Provided that the Company has made the
adequate funds available to the Warrant Agent in a timely manner which shall,
in no event, be later than 3:00 P.M., New York City Time, on the fifth
Business Day following the Delisting Date or Early Expiration Date, the
Warrant Agent will make its check (or another form of payment in accordance
with existing arrangements between the Warrant Agent and the Depositary)
available to the Depositary against receipt by the Warrant Agent from the
Depositary of the Global Warrant Certificate on the fifth Business Day
following the Delisting Date or Early Expiration Date, such check to be in the
amount of the aggregate Cash Settlement Amount in respect of the number of
Warrants evidenced by the Global Warrant Certificate at the close of business
on the Delisting Date or Early Expiration Date. The Warrant Agent shall
promptly cancel the Global Warrant Certificate following its receipt thereof
from the Depositary.
(e) The Company shall notify the Holders, or cause such Holders to be
notified, as soon as practicable of any delisting or trading suspension of the
warrants.
(f) If the Warrants are simultaneously accepted for trading pursuant to the
rules of another national securities exchange, from and after such date all
references in this Section 2.03 shall continue to apply, but each reference to
the "American Stock Exchange" or "AMEX" herein shall be deemed to refer to
such other national securities exchange.
SECTION 2.04. Covenant of the Company. The Company covenants, for the
benefit of the Holders, that it shall not seek the delisting of the Warrants
from, or suspension of their trading on, the AMEX.
SECTION 2.05. Return of Global Warrant Certificate. At such time as all
of the Warrants have been automatically exercised or otherwise cancelled, the
Warrant Agent shall destroy the cancelled Global Warrant Certificate unless
the Company directs it in writing to return it.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Any money
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Amount of any Warrants and not applied but remaining unclaimed for
two years after the date upon which such Cash Settlement Amount shall have
become due and payable, shall be repaid by the Warrant Agent to the Company
and the Holder of such Warrants shall thereafter look only to the Company for
any payment which such Holder may be entitled to collect and all liability of
the Warrant Agent with respect to such money shall thereupon cease; provided,
however, that the Warrant Agent, before making any such repayment, may at the
expense of the Company notify the Holders concerned that said money has not
been so applied and remains unclaimed and that after a date named therein any
unclaimed balance of said money then remaining shall be returned to the
Company.
SECTION 2.07. Designation of Agent for Receipt of Notice. The Company may
from time to time designate in writing to the Warrant Agent a designee for
receipt of all notices required to be given by the Warrant Agent pursuant to
this Article II and all such notices thereafter shall be given in the manner
herein provided by the Warrant Agent to such designee.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any Holder, without the consent of the
Warrant Agent, may, in and for his own behalf, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to exercise, and to receive
payment for, his Warrants as provided in the Global Warrant Certificate and in
this Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
Company may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that in any such case, either the Company shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing
under the laws of the United States of America or a State thereof and such
successor corporation shall expressly assume the payment of the Cash
Settlement Amount with respect to all unexercised Warrants, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Agreement and the Global Warrant Certificate
to be performed by the Company. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, a new Global Warrant Certificate representing the
Warrants not theretofore exercised, in exchange and substitution for the
Global Warrant Certificate theretofore issued. Such Global Warrant Certificate
shall in all respects have the same legal rank and benefit under this
Agreement as the Global Warrant Certificate theretofore issued in accordance
with the terms of this Agreement as though such new Global Warrant Certificate
had been issued at the date of the execution hereof. In any case of any such
consolidation, merger, sale, lease or conveyance of substantially all of the
assets of the Company, such changes in phraseology and form (but not in
substance) may be made in the new Global Warrant Certificate as may be
appropriate.
The Warrant Agent shall receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company complies with the
provisions of this Section 3.02 and that the assumption of this Agreement by
the successor or assuming corporation is effective.
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire Warrants, such Warrants may, at the option of
the Company and upon written notification to the Warrant Agent, be surrendered
free through a Depositary Participant for credit to the Warrant Account and if
so credited the Warrant Agent shall promptly note the cancellation of such
Warrants by notation on the records of the Warrant Agent. No Warrant shall be
issued in lieu of or in exchange for any Warrant which is cancelled as
provided herein, except as otherwise expressly permitted by this Agreement.
SECTION 4.02. Treatment of Holders. The Company, the Warrant Agent and
any agent of the Company or the Warrant Agent may deem and treat the person in
whose name a Warrant Certificate or the Global Warrant Certificate shall be
registered in the records of the Warrant Agent as the absolute owner of such
Warrant Certificate or Global Warrant Certificate, as the case may be,
(notwithstanding any notation of ownership or other writing thereon) (the
"Holder") for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary, except that the Warrant Agent and the
Company shall be entitled to conclusively rely on and act pursuant to
instructions of Depositary Participants as contemplated by Article II of this
Agreement. This Section 4.02 shall be without prejudice to the rights of
Holders as described elsewhere herein.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.
(a) The Company hereby appoints Citibank, N.A. as Warrant Agent of the Company
in respect of the Warrants and Global Warrant Certificate upon the terms and
subject to the conditions set forth herein and in the Global Warrant
Certificate; and Citibank, N.A. hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
the Global Warrant Certificate and hereby and such further powers and
authority acceptable to it to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Global Warrant
Certificate are subject to and governed by the terms and provisions hereof.
(b) The Warrant Agent covenants and agrees to maintain offices, staffed by
qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Warrant Agreement, including without limitation
the computation of the Cash Settlement Amounts and the timely settlement of
the Warrants upon exercise thereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof and of the Global Warrant Certificates including the following, to all
of which the Company agrees and to all of which the rights hereunder of the
Holders and beneficial owners from time to time of the Warrants shall be
subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to
be agreed upon with the Company in writing for all services rendered by the
Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred by the
Warrant Agent without negligence, bad faith or breach of this Agreement on its
part in connection with the services rendered by it hereunder. The Company
also agrees to indemnify the Warrant Agent and its officers, directors, agents
and employees for, and to hold it and them harmless against, any loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred without negligence, bad faith or breach of this Agreement on the part
of the Warrant Agent or them, arising out of or in connection with it acting
as such Warrant Agent hereunder or with respect to the Warrants or the Global
Warrant Certificate and any transactions or documents contemplated herewith or
therewith, as well as the reasonable costs and expenses of defending against
any claim of liability in the premises. This Section 5.02(a) shall survive the
termination of this Agreement or the earlier resignation or removal or the
Warrant Agent.
(b) In acting under this Agreement and in connection with the Global Warrant
Certificate, the Warrant Agent is acting solely as agent of the Company and
does not assume any obligation or relationship of agency or trust for or with
any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or
in respect of any action taken or omitted or thing suffered by it in reliance
upon any Global Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to
be genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may become
the owner of, or acquire an interest in, any Warrants or other obligations of
the Company, with the same rights that it or they would have if it were not
the Warrant Agent hereunder, and, to the extent permitted by applicable law,
it or they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of Holders of Warrants or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Global Warrant Certificate nor shall it be obligated to
segregate such monies from other monies held by it, except as required by law.
The Warrant Agent shall not be responsible for advancing funds on behalf of
the Company.
(g) The Warrant Agent shall not be under any responsibility with respect to
the validity or sufficiency of this Agreement or the execution and delivery
hereof (except the due execution and delivery hereof by the Warrant Agent) or
with respect to the validity or execution of the Global Warrant Certificate
(except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate
(except as to the Warrant Agent's authentication thereon) shall be taken as
the statements of the Company and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such duties as are
herein and in the Global Warrant Certificate specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Global
Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder likely to involve it in any
expense or liability, the payment of which or indemnity satisfactory to it is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
the Global Warrant Certificate authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of any proceeds. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Global
Warrant Certificate or in the case of the receipt of any written demand from a
Holder of a Warrant with respect to such default, except as provided in
Section 6.02 hereof, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or to make any demand upon the Company.
(j) Unless herein or in the Global Warrant Certificate otherwise specifically
provided, any order, certificate, notice, request, direction or other
communication from the Company made or given by the Company under any
provision of this Agreement shall be sufficient if signed by its President,
Chairman of the Board, officer serving as Chief Financial Officer, Treasurer,
any Executive Vice President or any Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the Warrant
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Warrant Agent which conform to the requirements of
this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment made in
good faith by an officer or officers of the Warrant Agent, unless it shall be
conclusively determined by a court of competent jurisdiction that the Warrant
Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with any direction of
the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement the
Warrant Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Warrant Agent, be deemed to be conclusively proved and established by a
certificate signed by one of Company's officers, as the case may be, and
delivered to the Warrant Agent and such certificate, in the absence of
negligence or bad faith on the part of the Warrant Agent, shall be full
warrant to the Warrant Agent for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, entitlement order, approval or
other paper or document.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to time of
the Warrants, that there shall at all times be a Warrant Agent hereunder until
all the Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective, subject to the
appointment of a successor Warrant Agent, and acceptance of such appointment
by such successor Warrant Agent, as hereinafter provided. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a banking institution organized under
the laws of the United States of America, or one of the states thereof and
having an office or an agent's office south of ▇▇▇▇▇▇▇▇ Street in the Borough
of Manhattan, The City of New York) and the acceptance of such appointment by
such successor Warrant Agent. In the event a successor Warrant Agent has not
been appointed and accepted its duties within 90 days of the Warrant Agent's
notice of resignation or removal, the Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Warrant Agent. The
obligation of the Company under Section 5.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent and shall survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or shall be removed,
or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver or custodian of all or any substantial part
of its property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or all or any
substantial part of its property shall be appointed, or if any public officer
shall have taken charge or control of the Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the latter of such appointment, the Warrant Agent so superseded shall cease
to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities
and other property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all of the
corporate trust business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment.
(a) This Agreement and the Global Warrant Certificate may be amended by the
Company and the Warrant Agent, without the consent of the Holder of the Global
Warrant Certificate or the beneficial owners, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, for the purpose of
appointing a successor Depositary in accordance with paragraph (d) of Section
1.01, for the purpose of issuing Warrants in definitive form in accordance
with paragraph (a) of Section 1.01, or in any other manner which the Company
may deem to be necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Warrants. Notwithstanding
anything in this Section 6.01 to the contrary, this Agreement may not be
amended to provide for the authentication by the Warrant Agent of one or more
Global Warrant Certificates evidencing in excess of 1,600,000 Warrants
originally issued unless and until the Warrant Agent has received notice from
the AMEX or any successor national securities exchange that additional
Warrants in excess of 1,600,000 Warrants originally issued have been approved
for listing on such exchange.
The Warrant Agent shall be entitled to receive an Opinion of Counsel
prior to executing any amendment, modification or supplement under this
Section 6.01(a).
(b) The Company and the Warrant Agent may modify or amend this Agreement and
the Global Warrant Certificate, with the consent of the beneficial owners of
not fewer than a majority in number of the Warrants affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that changes the Strike Value so as to adversely
affect the beneficial owners, shortens the period of time during which the
Warrants will be automatically exercised or otherwise materially and adversely
affects the exercise rights of the beneficial owners or reduces the percentage
of the number of outstanding Warrants the consent of the beneficial owners of
which is required for modification or amendment of this Agreement or the
Global Warrant Certificate may be made without the consent of the beneficial
owners of Warrants affected thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by any Holder pursuant to the provisions of the Global Warrant Certificate,
the Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. [Addresses for Notices. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (facsimile: (212)
▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Trust Services;
any communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇)
(telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Treasurer (first copy) and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Secretary
(second copy); and any communications from the Warrant Agent to the
Calculation Agent with respect to this Agreement shall be addressed to ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) (telephone: (212)
▇▇▇-▇▇▇▇) (or such other address as shall be specified in writing by the
Warrant Agent, the Company or the Calculation Agent, respectively)].
SECTION 6.04. Notices to Holders. The Company or the Warrant Agent may
cause to have notice given to the beneficial owners of interests in the Global
Warrant Certificate by providing the Depositary with a form of notice to be
distributed by the Depositary to Depositary Participants in accordance with
the customs and practices of the Depositary.
SECTION 6.05. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 6.06. Obtaining of Governmental Approvals. The Company shall from
time to time take all actions which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and the AMEX and securities acts filings under United States
Federal and State laws, which may be or become requisite in connection with
the issuance, sale, trading, transfer or delivery of the Warrants, the Global
Warrant Certificate and the exercise of the Warrants.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon,
or give to, any person or corporation other than the Company, the Warrant
Agent, and the Holders any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
hereof; and all covenants, conditions, stipulations, promises and agreements
in this Agreement contained shall be for the sole and exclusive benefit of the
Company and the Warrant Agent and their successors and of the registered
Holders of the Warrant Certificate.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent, during its normal business hours for inspection by the
Depositary Participants and the Holders.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
and
Treasurer
CITIBANK, N.A.
By
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
EXHIBIT A
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
WARRANTS IN CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS WARRANT IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC 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 IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE 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.
No. R-
CUSIP No. 59021J 117
GLOBAL WARRANT CERTIFICATE
Representing up to 1,600,000 Euro Currency Warrants
Expiring February 28, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
This certifies that CEDE & Co. or registered assigns is the registered
Holder of 1,600,000 Euro Currency Warrants Expiring February 28, 2002 (the
"Warrants") or such lesser amount as is indicated in the records of Citibank,
N.A., as Warrant Agent. Each Warrant entitles the beneficial owner thereof,
subject to the provisions contained herein and in the Warrant Agreement
referred to below, to receive from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. (the "Company")
the cash settlement amount, if any, (the "Cash Settlement Amount") specified
in Section 2.02(d) of the Warrant Agreement. The Holder hereof shall not be
entitled to any interest on any Cash Settlement Amount to which it is
otherwise entitled (unless the Company shall default in the payment of such
Cash Settlement Amount). The Warrants will be automatically exercised on the
earlier of (i) the fourth scheduled Business Day immediately preceding
February 28, 2002 (the "Exercise Date"), or (ii) the Business Day immediately
preceding the Warrants' delisting, the imposition of a permanent trading
suspension on trading of Warrants or if certain events in bankruptcy,
insolvency or reorganization involving the Company occur. Such occurrences are
further described below and as provided in the Warrant Agreement.
The Cash Settlement Amount with respect to this Euro Currency Warrant
equals:
Spot Value - Strike Value
U.S. $50 x -------------------------
Strike Value
provided, however, that in no event will the Cash Settlement Amount be less
than zero. The Spot Value will be determined by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, (the "Calculation Agent"), and will equal the bid rate
of the U.S. Dollar per Euro in the interbank market as reported on Reuters
Group PLC ("Reuters") on page FXFX at approximately 3:00 p.m. London time on
the Exercise Date. However, if the USD/EUR Rate is not so quoted on the
Exercise Date, the Spot Value will be the exchange rate between Euro and U.S.
Dollars, based on the noon buying rate in The City of New York for cable
transfers in foreign currencies as announced by the Federal Reserve Bank of
New York for customs purposes (the "Noon Buying Rate"). If the Noon Buying
Rate is not so announced on the Exercise Date, then the Spot Value will be
calculated on the basis of the arithmetic mean of the applicable spot
quotations received by the Calculation Agent at approximately 3:00 p.m. London
time on the relevant date for the purchase or sale by the Reference Dealers of
the Reference Amount for settlement two Business Days later. If fewer than two
Reference Dealers provide such spot quotations, then the Spot Value will be
calculated on the basis of the arithmetic mean of the applicable spot
quotations received by the Calculation Agent at approximately 3:00 p.m. London
time on the relevant date from three other leading commercial banks in The
City of New York (selected in the sole discretion of the Calculation Agent),
for the sale by such banks of the Reference Amount for settlement two Business
Days later. If such spot quotations are available from fewer than three such
banks, then such spot quotation or quotations as the Calculation Agent, in its
sole discretion, shall determine are reasonable and available will be used. If
no such spot quotation is available, the Spot Value will be such rate as the
Calculation Agent, in its sole discretion, determines to be fair and
reasonable under the circumstances at approximately 3:00 p.m., London time, on
the relevant date.
References herein to "Euro" or "EUR" are to the lawful currency of the
member states of the European Union that adopt the single currency in
accordance with the treaty establishing the European Community as amended by
the Treaty on European Union, and references to "Dollars", "U.S.$", "$" or
"USD" are to the currency of the United States of America.
The term "Business Day", as used herein, means any day other than a
Saturday or Sunday or a day on which commercial banks in The City of New York
are required or authorized by law or executive order to be closed.
"Reference Amount" is U.S.$869,500.
"Reference Dealers", as used herein, means Citibank, N.A., Deutsche Bank
Securities, Inc. and The Chase Manhattan Bank, or their successors.
The Cash Settlement Amount, if necessary, will be rounded to the nearest
cent, with one-half cent being rounded upwards.
All determinations made by the Calculation Agent, shall be at the
Calculation Agent's sole discretion and, absent a manifest error, shall be
conclusive for all purposes and binding on the Company and the beneficial
owners of the Warrants.
This Global Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of December 6, 2000 (the "Warrant Agreement"),
between the Company and the Warrant Agent, and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions all beneficial owners of the Warrants evidenced by this Global
Warrant Certificate and the Holder of this Global Warrant Certificate consent
by acceptance hereof by the Depositary (as defined below). Copies of the
Warrant Agreement are on file at the Warrant Agent office of the Warrant Agent
in The City of New York. Except as provided in the Warrant Agreement,
beneficial owners of the Warrants evidenced by this Global Warrant Certificate
shall not be entitled to receive definitive Warrants evidencing their
Warrants. Warrants shall be held through a depositary selected by the Company
which initially is The Depository Trust Company (the "Depositary", which term,
as used herein, includes any successor depositary selected by the Company as
further provided in the Warrant Agreement).
Capitalized terms included herein but not defined herein have the same
meaning assigned thereto in the Warrant Agreement.
Subject to the provisions hereof and of the Warrant Agreement, each
Warrant evidenced hereby will expire on the Expiration Date. The Warrants are
not exercisable at the option of the holder. The Warrants will be
automatically exercised on the earlier of (i) the fourth scheduled Business
Day prior to the Expiration Date (the "Exercise Date") or, (ii) in the case of
delisting or a trading suspension, on the Delisting Date or in the case of
certain events in bankruptcy, insolvency or reorganization, on the Business
Day immediately preceding such date (the "Early Expiration Date").
The Warrant Agent will obtain the Cash Settlement Amount on the Exercise
Date from the Calculation Agent and will pay the Cash Settlement Amount of the
Warrants to the Depositary on the Expiration Date and, if February 28, 2002 is
not a Business Day, on the next succeeding Business Day. If the Warrants are
delisted or there is a trading suspension and the Warrants are not
simultaneously accepted for listing on another national securities exchange,
the Warrant Agent will pay the Cash Settlement Amount of the Warrants to the
Depositary on the fifth Business Day following the Delisting Date or Early
Expiration Date, as applicable. The Company shall advise the Warrant Agent in
writing of the date of any expected delisting or permanent suspension of
trading of the Warrants as soon as is practicable and shall immediately inform
the Warrant Agent in writing after the Company has received notice that such
delisting or suspension has occurred and that the Warrants are not accepted
for listing on another national securities exchange, but in no event will such
notice be given to the Warrant Agent later than 5:00 P.M., New York City time,
on the Business Day preceding the date that such delisting or suspension
occurs.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced hereby, and
neither the Company nor the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary, subject to
certain provisions of the Warrant Agreement, except that the Company and the
Warrant Agent shall be entitled to rely on and act pursuant to instructions of
Depositary Participants as contemplated herein and in the Warrant Agreement.
Subject to the terms of the Warrant Agreement and certain restrictions
set forth above, upon due presentment for registration of transfer of this
Global Warrant Certificate at the Warrant Agent Office of the Warrant Agent in
New York City, the Company shall execute and the Warrant Agent shall
authenticate and deliver in the name of the designated transferee a new Global
Warrant Certificate of like tenor and evidencing a like number of Warrants as
evidenced by this Global Warrant Certificate at the time of such registration
of transfer, which shall be issued to the designated transferee in exchange
for this Global Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Global Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By _____________________________
Treasurer
[SEAL] Attest _________________________
Secretary
This is one of the Warrants
referred to in the within-mentioned
Warrant Agreement:
CITIBANK, N.A. as Warrant Agent
By _________________________
Authorized Officer
Date: December 6, 2000
Form of Transfer of Global Warrant Certificate
Citibank, N.A., as Warrant Agent
Corporate Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
, the registered Holder of the Global Warrant Certificate
representing all ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. Euro Currency Warrants, Expiring
February 28, 2002, hereby requests the transfer of such Global Warrant
Certificate to
[NAME OF REGISTERED HOLDER]
Dated:
By:___________________________