EXHIBIT 4(g)
FORM OF WARRANT AGREEMENT
_________________________________________________________
CNF TRANSPORTATION INC.
and
As Warrant Agent
______________________
WARRANT AGREEMENT
Dated as of
______________________
_________________________________________________________
TABLE OF CONTENTS/1/
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ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates...................... 1
Section 1.2 Form of Warrant Certificate........................... 1
Section 1.3 Execution and Authentication of Warrant Certificates.. 2
Section 1.4 Temporary Warrant Certificates........................ 2
Section 1.5 Payment of Taxes...................................... 3
Section 1.6 Definition of Holder.................................. 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price......................................... 3
Section 2.2 Duration of Warrants.................................. 3
Section 2.3 Exercise of Warrants.................................. 4
Section 2.4 Reservation of Shares................................. 5
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Corporation.................. 5
Section 3.2 Adjustment of Exercise Price and Number
of Shares Purchasable or Number of Warrants......... 5
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT
CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant
Certificates........................................ 8
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates........................................ 9
Section 4.3 Persons Deemed Owners................................. 10
Section 4.4 Cancellation of Warrant Certificates.................. 10
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/1/ The Table of Contents is not a part of the Warrant Agreement.
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ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants
or Warrant Certificates............................. 10
Section 5.2 Holder of Warrant Certificate May Enforce Rights...... 10
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent......................................... 11
Section 6.2 Conditions of Warrant Agent's Obligations............. 11
Section 6.3 Resignation, Removal and Appointment of Successor..... 12
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Corporation and
Sales, Leases and Conveyances Permitted Subject to
Certain Conditions.................................. 14
Section 7.2 Rights and Duties of Successor Company................ 14
Section 7.3 Amendment............................................. 14
Section 7.4 Notices and Demands to the Company and Warrant Agent.. 14
Section 7.5 Notices to Warrant Holders............................ 15
Section 7.6 Addresses............................................. 16
Section 7.7 GOVERNING LAW......................................... 16
Section 7.8 Delivery of Prospectus................................ 16
Section 7.9 Obtaining of Governmental Approvals................... 16
Section 7.10 Persons Having Rights Under Warrant Agreement........ 16
Section 7.11 Headings............................................. 16
Section 7.12 Counterparts......................................... 17
Section 7.13 Inspection of Agreement.............................. 17
Exhibit A - Form of Warrant Certificate
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THIS WARRANT AGREEMENT dated as of between CNF Transportation Inc.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and , a organized and existing under
the laws of , as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF OTHER SECURITIES AND WARRANTS -
title of other Securities being offered] (the "Offered Securities") with]
warrant certificates (such warrant certificates and other warrant certificates
issued pursuant to this Agreement herein called the "Warrant Certificates")
evidencing one or more warrants (the "Warrants" or, individually, a "Warrant")
each representing the right to purchase shares of the Company's common
stock, par value $0.625 per share (the "Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be
issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. [IF WARRANTS ALONE -- Upon
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issuance, each Warrant Certificate shall evidence one or more Warrants.] [IF
OFFERED SECURITIES AND WARRANTS -- Warrant Certificates shall be [initially]
issued in units with the Offered Securities and shall [not] be separately
transferable [before (the "Detachable Date").] Each such unit shall
consist of and a Warrant Certificate or Certificates evidencing an
aggregate of Warrants.] Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
[one] share of Stock, subject to adjustment pursuant to Section 3.2.
Section 1.2 Form of Warrant Certificate. The Warrant Certificates
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(including the form[s] of exercise [and assignment] to be set forth on the
reverse thereof) shall be in substantially the form set forth in Exhibit A
hereto, shall be printed, lithographed, photocopied, word processed,
typewritten, mimeographed or otherwise reproduced in any manner determined by
the officers of the Company executing such Warrant Certificates, with the
execution thereof by such officers conclusively evidencing such determination,
and the Warrant Certificates may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon 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 securities exchange on which the
Warrant Certificates may be listed or as may, consistently herewith, be
determined by the officers of the Company executing such Warrant Certificates,
with the execution thereof by such officers conclusively evidencing such
determination.
Section 1.3 Execution and Authentication of Warrant Certificates. The
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Warrant Certificates shall be executed on behalf of the Company by its Chairman,
its President, its Chief Executive Officer, any of its Vice Presidents (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), or its
Treasurer (each, an "Authorized Officer") and attested by any Vice President,
its Treasurer, any Assistant Treasurer, its Secretary or any Assistant
Secretary. The signature of any of these officers on the Warrant Certificates
may be manual or facsimile and may be imprinted or otherwise reproduced on the
Warrant Certificates.
Warrant Certificates evidencing the right to purchase up to shares
of Stock (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
authenticate such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the written order of the Company signed by an Authorized
Officer. Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall authenticate a Warrant Certificate only if the Warrant
Certificate is issued in exchange or in substitution for one or more previously
authenticated Warrant Certificates or in connection with their transfer, as
hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication by
the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory 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 on behalf of the
Company (as provided in this Section 1.3) shall be conclusive evidence, and the
only evidence, that the Warrant Certificate so authenticated has been duly
issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of any
individual who was at the time a proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Warrant Certificates or did not
hold such office at the date of such Warrant Certificates.
Section 1.4 Temporary Warrant Certificates. Pending the preparation of
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definitive Warrant Certificates, the Company may execute, and upon the written
order of the Company signed by an Authorized Officer, the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, photocopied, typewritten, word processed, mimeographed or
otherwise produced substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, with the execution thereof by
such officers conclusively evidencing such determination.
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If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or at ], without charge to the Holder (as defined in
Section 1.6 hereof) so long as the definitive Warrant Certificates are
registered in the same names as the temporary Warrant Certificates so
surrendered. Upon surrender for cancellation of any one or more temporary
Warrant Certificates, the Company shall execute and the Warrant Agent shall
authenticate and deliver in exchange therefor definitive Warrant Certificates
representing the same aggregate number of Warrants. Until so exchanged, the
temporary Warrant Certificates shall in all respects be entitled to the same
benefits under this Agreement as definitive Warrant Certificates.
Section 1.5 Payment of Taxes. The Company will pay all stamp taxes and
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other duties, if any, to which, under the federal laws of the United States of
America, this Agreement or the original issuance of the Warrant Certificates may
be subject.
Section 1.6 Definition of Holder. The term "Holder" as used herein shall
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mean [IF OFFERED SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE -- prior
to the Detachable Date, the registered owner of the Offered Security to which
such Warrant Certificate is attached, and, after such Detachable Date,] the
person in whose name at the time such Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose pursuant
to Section 4.1. [IF OFFERED SECURITIES AND WARRANTS ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, the Company will, or will cause the
registrar of the Offered Securities to, make available to the Warrant Agent such
information as is necessary to keep the Warrant Agent's records up to date with
respect to the Holders of the Offered Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price. During the period set forth in Section 2.2,
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each Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company [one] share of Stock at the exercise
price of $ ([as the same may be adjusted from time to time as herein
provided,] the "Exercise Price").
Section 2.2 Duration of Warrants. Any Warrant may be exercised, in whole
--------------------
and not in part, at any time, as specified herein, on or after [the date
thereof] [ , ] and at or before 5:00 p.m. New York City time
on , (the "Expiration Date"). Each Warrant not exercised at or
before 5:00 p.m., New York City time, on the Expiration Date shall become void,
and all rights of the Holder of such Warrant, under this Agreement or otherwise,
shall cease.
Section 2.3 Exercise of Warrants. (a) During the period specified in
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Section 2.2, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants, with the form of exercise set
forth in the Warrant Certificate duly executed, accompanied by payment in full,
in lawful money of the United States of America, [in cash or by certified check
or official bank check in immediately available funds] [by wire transfer in
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immediately available funds,] of the Exercise Price for each Warrant exercised,
to the Warrant Agent at its corporate trust office [or at ]. The later
of the date on which payment in full of the Exercise Price for a Warrant and the
date on which the Warrant Certificate together with a duly executed and
completed form of exercise are received by the Warrant Agent shall be deemed to
be the date on which such Warrant is exercised; provided that any such payment
or certificate received after 5:00 p.m. New York City time on any day shall be
deemed to have been received on the next succeeding business day. The Warrant
Agent shall deposit all funds received by it as payment for the exercise of
Warrants to the account of the Company maintained with it for such purpose (or
shall transfer such funds in accordance with the instructions of any Authorized
Officer of the Company) and shall advise the Company by telephone at the end of
each day on which such a payment is received of the amount so deposited to its
account or transferred, as the case may be. The Warrant Agent shall promptly
confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as practicable
after the exercise of any Warrants in accordance with the terms and conditions
of this Agreement and the Warrant Certificates, advise the Company of (i) the
number of Warrants so exercised, (ii) the instructions of each Holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
certificate or certificates representing shares of Stock to which such Holder is
entitled upon such exercise, and instructions of such Holder as to delivery of
Warrant Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iii) such other information as the Company may
request.
(c) As soon as practicable after the exercise of any Warrants, the Company
shall issue to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, a certificate or certificates representing the number
of shares of Stock to which such Holder is entitled, registered in such name or
names as may be directed by such Holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised, the Company shall execute
and the Warrant Agent shall authenticate and deliver a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Stock; and in the event that any such transfer
is involved, the Company and the Warrant Agent shall not be required to issue or
deliver any shares of Stock until such tax or other charge shall have been paid
or it has been established to the Company's and the Warrant Agent's satisfaction
that no such tax or other charge is due.
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Section 2.4 Reservation of Shares. For the purpose of enabling it to
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satisfy any obligation to issue shares of Stock upon exercise of Warrants, the
Company will, at all times through 5:00 p.m. New York City time on the
Expiration Date, reserve and keep available, free from preemptive rights and out
of its authorized but unissued shares of Stock, the number of shares of Stock
deliverable upon the exercise of all outstanding Warrants. In addition, so long
as the Stock is listed on a national stock exchange or is quoted on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), the
Company will use its best efforts to list, or to be quoted, as the case may be,
subject to notice of issuance, the Stock issuable upon the exercise of the
Warrants on any such stock exchange or on NASDAQ, as the case may be.
The Company covenants that all shares of Stock issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all preemptive rights.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Company. IF WARRANTS ISSUED
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HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right to
call and repurchase any or all Warrants on or after , (the "Call
Date") and upon the occurrence of [describe events or circumstances under which
the Company may call the Warrants] (the "Call Terms") at a price of $ per
Warrant (the "Call Price"). Notice of such Call Price, Call Date and Call Terms
shall be given to registered Holders of Warrants in the manner provided in
Section 7.5.]
Section 3.2 Adjustment of Exercise Rate. [TO BE REVISED AS APPROPRIATE --
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The number of shares of Stock purchasable upon the exercise of each Warrant (the
"Exercise Rate") shall be subject to adjustment as provided in this Section.
(a) If the Company shall (i) pay a dividend in or make a distribution of
shares of its capital stock, whether in shares of Stock or shares of its capital
stock of any other class, (ii) subdivide its outstanding shares of Stock into a
greater number of shares of Stock, (iii) combine its outstanding shares of Stock
into a smaller number of shares of Stock or (iv) issue any shares of its capital
stock in a reclassification of the Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), the Exercise Rate immediately prior thereto and the exercise
privilege shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of shares of Stock or other securities of the
Company which such Holder would have owned or been entitled to receive
immediately after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event,
retroactive to immediately prior to the opening of business on the day following
the record date, if any, for such event.
(b) In case the Company shall issue rights or warrants to all holders of
shares of its Stock, without any charge to such holders, entitling them to
subscribe for or purchase shares of Stock at
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a price per share less than the current market price (determined as provided in
paragraph (e) of this Section 3.2) per share of Stock on the date fixed for the
determination of stockholders entitled to receive such rights or warrants, the
Exercise Rate shall be adjusted by dividing such Exercise Rate by a fraction of
which (i) the numerator shall be the number of shares of Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Stock which the aggregate offering price of the total number of
shares of Stock so offered for subscription or purchase would purchase at such
current market price and (ii) the denominator shall be the number of shares of
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Stock so offered for subscription or
purchase. Such adjustment shall be made whenever such rights or warrants are
issued, retroactive to immediately prior to the opening of business on the day
following the date fixed for such determination. If at the end of the period
during which such rights or warrants are exercisable, not all such rights and
warrants shall have been exercised, the Exercise Rate shall be immediately
readjusted to what it would have been if the adjustment made pursuant to the
foregoing formula had been based upon the number of options or warrants which
were actually exercised. For the purposes of this paragraph (b), the number of
shares of Stock at any time outstanding shall not include shares held in the
treasury of the Company. The Company will not issue any rights or warrants in
respect of shares of Stock held in the treasury of the Company.
(c) In case the Company shall, by dividend or otherwise, distribute to all
holders of shares of Stock evidences of its indebtedness or assets (including
securities, but excluding any dividend or distribution referred to in paragraph
(a) or (b) of this Section 3.2 or any dividend or distribution paid in cash out
of net income for the then current or the immediately preceding fiscal year or
out of capital surplus), the Exercise Rate shall be adjusted by dividing the
Exercise Rate in effect immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which (i) the numerator shall be the current
market price (determined as provided in paragraph (e) of this Section 3.2) per
share of Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors of the Company or any duly
authorized committee thereof, in the exercise of its sole and absolute
discretion and whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness so distributed applicable to one share of
Stock and (ii) the denominator shall be such current market price per share of
Stock. Such adjustment shall be made whenever such distribution is made and
shall be made retroactive to immediately prior to the opening of business on the
day following the date fixed for the determination of stockholders entitled to
receive such distribution.
(d) In the event of any capital reorganization or any reclassification of
the Stock (except as provided in paragraphs (a) through (c) above), any Holder
of Warrants upon exercise thereof shall be entitled to receive, in lieu of the
Stock to which he or she would have become entitled upon exercise immediately
prior to such reorganization or reclassification, the shares (of any class or
classes) or other securities or property of the Company that he or she would
have been entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto.
(e) Current Market Price. For the purpose of any computation under
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paragraphs (b) and (c) of this Section 3.2, the current market price per share
of Stock on any date shall be deemed to be the average of the daily closing
prices (as defined) for the consecutive trading days selected
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by the Company commencing not less than nor more than trading
days before the day in question. The closing price for each day shall be the
last reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange (the "NYSE") or, if
such Stock is not listed or admitted to trading on the NYSE, on the principal
United States national securities exchange on which such Stock is listed or
admitted to trading or, if not listed or admitted to trading on any United
States national securities exchange, on NASDAQ or, if such Stock is not listed
or admitted to trading on any United States national securities exchange or
quoted on NASDAQ, the average of the closing bid and asked prices in the over-
the-counter market as furnished by any NYSE member firm selected from time to
time by the Company for such purpose. In the event that no such trading market
exists, the current market price will be determined by a nationally recognized
investment banking firm selected by the Company in such manner as the Board of
Directors of the Company or any duly authorized committee thereof deems
appropriate.
(f) Adjustments for Tax Purposes. The Company may make such adjustments in
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the Exercise Price, in addition to those required by paragraphs (a), (b), (c)
and (d) of this Section 3.2, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(g) No Adjustment Below Par Value. Notwithstanding the provisions of this
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Section 3.2, the Exercise Rate shall not be increased such that the price paid
per share of Stock would be less than the par value thereof as a result of any
adjustment made hereunder unless, under applicable law then in effect, Warrants
may be exercised at such Exercise Rate for legally issued, fully paid and
nonassessable shares of Stock.
(h) Permitted Distributions. Anything herein to the contrary
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notwithstanding, the granting, issuance or distribution of rights or options to
purchase shares of Stock (whether from treasury shares or otherwise) pursuant to
(i) any dividend or interest reinvestment plan or stock purchase plan providing
for the reinvestment of dividends or interest payable on securities of the
Company and/or the investment of periodic optional payments or any similar plan
or (ii) any stock option plan and/or employee or director benefit or similar
plans , or the issuance or distribution of rights pursuant to any shareholder
rights or similar plan, shall not require any adjustment to the Exercise Rate or
Exercise Price or other adjustment under this Section 3.2.
(i) No Adjustments Necessary. No adjustment in the Exercise Rate shall be
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required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, provided, however, that any adjustment
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which by reason of this paragraph (i) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 3.2 shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(j) Company Determination Final. Any determination by the Company or the
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Board of Directors of the Company or any duly authorized committee thereof
pursuant to this Section 3.2 is conclusive.
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(k) Adjustments and Warrant Certificates. Irrespective of any adjustments
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in the number or kind of shares or property purchasable upon the exercise of the
Warrants, Warrant Certificates theretofore or thereafter issued may continue to
express the same number and kind of shares per Warrant as are stated on the
Warrant Certificates initially issuable pursuant to this Agreement.
(l) Anything herein to the contrary notwithstanding, the Company shall not
be required to issue fractions of shares of Stock upon exercise of the Warrants
or to distribute certificates which evidence fractional shares. If more than one
Warrant shall be surrendered for exercise at any one time by the same Holder,
the number of shares of Common Stock which shall be delivered upon exercise
thereof shall be computed on the basis of the aggregate number of the Warrants
so surrendered. In lieu of fractional shares, there shall be paid to the Holders
of Warrants at the time the Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the closing price of a
share of Stock. For purposes of this paragraph (l), the closing price of a share
of Stock shall be the closing price (determined as set forth in Section 3.2(e))
of a share of Stock on the trading day immediately prior to the date of such
exercise.
(m) To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the amount of cash into which such Warrants are
exercisable. Interest will not accrue on the cash.
(n) [Whenever the Exercise Rate is adjusted as herein provided, the
Exercise Price payable upon the exercise of each Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of shares of Stock
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of shares of Stock
so purchasable immediately thereafter.]]
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant Certificates.
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The Warrant Agent shall keep, at its corporate trust office [and at ],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and transfers of outstanding Warrant
Certificates.
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --
Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer or exchange of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer or exchange the Warrant Certificate or Certificates to which
such Offered Security was initially attached. After
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the Detachable Date, upon] [IF OFFERED SECURITIES AND WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE -- Upon] surrender at the corporate
trust office of the Warrant Agent [or at ] of Warrant Certificates
properly endorsed or accompanied by appropriate instruments of transfer and
accompanied by written instructions for [transfer or] exchange, all in form
satisfactory to the Company and the Warrant Agent, such Warrant Certificates may
be exchanged for other Warrant Certificates or may be transferred in whole or in
part; provided that Warrant Certificates issued in exchange for or upon transfer
of surrendered Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. No service charge shall be
made for any exchange or transfer of Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other tax or
governmental charge that may be imposed in connection with any such exchange or
transfer. Whenever any Warrant Certificates are so surrendered for exchange or
transfer, the Company shall execute and an authorized officer of the Warrant
Agent shall manually authenticate and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates as so requested. The
Warrant Agent shall not be required to effect any exchange or transfer which
would result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or transfer of Warrant Certificates shall
evidence the same obligations, and be entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If
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any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Corporation shall executed and an officer of the Warrant Agent shall manually
authenticate and deliver in exchange therefor a new Warrant Certificate of like
tenor, evidencing a like number of Warrants, and bearing a number not
contemporaneously outstanding. If there shall be delivered to the Company and
the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Warrant Certificate and of the ownership thereof and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Warrant Agent that such Warrant Certificate has been acquired by a bona
fide purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like
tenor, evidencing a like number of Warrants, and bearing a number not
contemporaneously outstanding. Upon the issuance of any new Warrant Certificate
under this Section 4.2, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) connected therewith. Every new Warrant Certificate issued pursuant to
this Section 4.2 in lieu of any destroyed, lost or stolen Warrant Certificate
shall evidence 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
Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. To the extent permitted by law, the
provisions of this Section 4.2 are exclusive and shall preclude all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Warrant Certificates.
9
Section 4.3 Persons Deemed Owners. [IF OFFERED SECURITIES AND WARRANTS
---------------------
WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of any
Offered Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date, and] Prior to due
presentment of a Warrant Certificate for registration of transfer, the Company,
the Warrant Agent and all other persons may treat the Holder as the owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.4 Cancellation of Warrant Certificates. Any Warrant Certificate
------------------------------------
surrendered for exchange, transfer or exercise of the Warrants evidenced thereby
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by it and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in
lieu or in exchange thereof. The Company may at any time deliver to the Warrant
Agent for cancellation any Warrant Certificates previously issued 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. All
cancelled Warrant Certificates held by the Warrant Agent shall be disposed of,
as instructed by the Company, subject to applicable law.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants or Warrant
----------------------------------------------------------
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle
------------
the Holder thereof to any of the rights of a stockholder, including, without
limitation, the right to vote or to receive dividends.
Section 5.2 Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent or the Holder of
any other Warrant Certificate, may, on its own behalf and for its own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce or otherwise in respect of its right to exercise
the Warrant or Warrants evidenced by his or her Warrant Certificate in the
manner provided in the Warrant Certificates and in this Agreement.
10
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent. The Company hereby appoints as Warrant
-------------
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and hereby
accepts such appointment. The Warrant Agent shall have the power and authority
granted to and conferred upon it in the Warrant Certificates and hereby and such
further power and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it in writing. All of the terms and provisions
with respect to such power and authority contained in the Warrant Certificates
are subject to and governed by the terms and provisions hereof.
Section 6.2 Conditions of Warrant Agent's Obligations. The Warrant Agent
-----------------------------------------
accepts its obligations herein set forth, upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees to pay the
--------------------------------
Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
hold it harmless against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent hereunder,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance at any time of
its powers or duties hereunder. The obligations of the Corporation under this
subsection (a) shall survive the exercise of the Warrant Certificates and the
resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Warrant Agreement and in
---------------------
connection with the Warrant Certificates, 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 Warrant
Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which may
-------
include counsel for the Company, and the written advice of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered, or omitted by it hereunder in good faith and in reliance thereon.
(d) Documents. The Warrant Agent shall be protected and shall incur no
---------
liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificates, 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.
11
(e) Certain Transactions. The Warrant Agent, any of its officers,
--------------------
directors and employees, or any other agent of the Company, in its individual or
any other capacity, may become the owner of, or acquire any interest in, any
Warrant Certificates, with the same rights that it would have if it were not
such Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of securities
or other obligations of the Company as freely as if it were not such Warrant
Agent, officer, director, employee or other agent.
(f) No Liability for Interest. The Warrant Agent shall not be under any
-------------------------
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates unless
otherwise agreed to in writing by the Company and the Warrant Agent and except
for the negligence, bad faith or willful misconduct of the Warrant Agent.
(g) No Liability for Invalidity. The Warrant Agent shall not incur any
---------------------------
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall not be
-------------------------------------
responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except as to the Warrant Agent's certificate of
authentication thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement
or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall
not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a reasonable
time 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 any of the Warrant Certificates authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates or any
exercise of the Warrants evidenced thereby. 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 Warrant Certificates or
in the case of the receipt of any written demand from a Holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 7.4 hereof, to make any demand upon the Company.
Section 6.3 Resignation, Removal and Appointment of Successor. (a) The
-------------------------------------------------
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all of the Warrant Certificates 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 it desires its
12
resignation to become effective; provided that, without the consent of the
Company, such date shall not be less than three months after the date on which
such notice is given. The Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on behalf of the
Company by an Authorized Officer and specifying such removal and the date on
which the Company expects such removal to become effective. Such resignation or
removal shall take effect upon the appointment by the Company of a successor
Warrant Agent (which shall be a bank or trust company organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia and authorized under such laws to exercise corporate
trust powers) by an instrument in writing filed with such successor Warrant
Agent and the acceptance of such appointment by such successor Warrant Agent
pursuant to Section 6.3(d) hereof.
(c) In case at any time the Warrant Agent shall resign, or be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall file a petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law 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 assets, 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 of all or any substantial part of its property or
assets shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of Title 11 of the United States Code, as
now constituted or hereafter amended, or under any other applicable Federal or
State bankruptcy law or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property, assets or affairs for
the purpose of rehabilitation, conservation or liquidation, it shall be
disqualified from serving as Warrant Agent and 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 disqualified shall cease to be the 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 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 or other entity into which the Warrant Agent hereunder
may be merged or converted or any corporation or other entity with which the
Warrant Agent may be consolidated, or any corporation or other entity resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation or other entity succeeding to all or substantially
all of the corporate trust business of the Warrant Agent, provided that it shall
be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
13
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and Sales, Leases
-----------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company shall not
-------------------------------------------------------
merge or consolidate with or into, or sell, lease, transfer or otherwise convey
all or substantially all of its assets to, any other corporation or other entity
unless, in any such case, either (i) the Company shall be the continuing
corporation or other entity or (ii) the corporation or other entity (if other
than the Company) formed by such consolidation or into which the Company is
merged or which shall have acquired such assets by sale, transfer, lease or
other conveyance shall expressly assume the obligations of the Company
hereunder.
Section 7.2 Rights and Duties of Successor Company. In case of any such
--------------------------------------
consolidation, merger, sale, lease, transfer or other conveyance referred to in
Section 7.1 hereof in which the Company is not the continuing corporation or
other entity, the successor corporation or entity shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein, and the predecessor, except in the event of a lease, shall be relieved
of any further obligation under this Agreement and the Warrants. Such successor
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Warrant Certificates issuable pursuant to
the terms hereof.
In case of any such sale, lease, transfer or other conveyance referred to
in Section 7.1 hereof in which the Company is not the continuing corporation or
other entity, such changes in phraseology and form (but not in substance) may be
made in Warrant Certificates thereafter to be issued as may be appropriate.
Section 7.3 Amendment. This Agreement may be amended by the parties
---------
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making such provisions in regard to
matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect the
interests of the Holders of the Warrant Certificates in any material respect.
Any amendment or supplement to this Agreement or the Warrants that has a
material adverse effect on the interests of Holders of any series of Warrants
shall require the written consent of the Holders of a majority of the then
outstanding Warrants of such series; provided that, except as set forth in
Section 3.2 hereof, the consent of each Holder of a Warrant affected shall be
required for any amendment pursuant to which (i) the Exercise Price would be
increased or (ii) the number of shares of Stock purchasable upon exercise of
Warrants would be decreased. The Warrant Agent may, but shall not be obligated
to, enter into any amendment to this Agreement which affects the Warrant Agent's
own rights, duties or immunities under this Agreement or otherwise.
Section 7.4 Notices and Demands to the Company and Warrant Agent. If the
----------------------------------------------------
Warrant Agent shall receive any notice or demand addressed to the Company by the
Holder of a Warrant Certificate pursuant to the provisions of this Agreement or
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
14
Section 7.5 Notices to Warrant Holders. Upon any adjustment of the
--------------------------
Exercise Rate [or the Exercise Price] pursuant to Section 3.2, the Company
within 60 calendar days thereafter shall (i) cause to be filed with the Warrant
Agent a certificate signed by an Authorized Officer setting forth the Exercise
Rate [or Exercise Price], as the case may be, after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such adjustment are made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered Holders of the Warrant Certificates at such Holder's address
appearing on the Warrant register written notice of such adjustments by first-
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the
provisions of this Section 7.5.
Pursuant to Sections 3.1 [add other sections as applicable], the Company
shall cause written notice of such Call Price, Call Date and Call Terms
[reference other items as applicable], as the case may be, to be given as soon
as practicable to the Warrant Agent and to each of the registered Holders of the
Warrant Certificates by first-class mail, postage prepaid, at such Holder's
address appearing on the Warrant register.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of Stock or make any distribution (other than a cash
dividend) to the holders of its Stock; or
(b) the Company shall offer to the holders of its Stock any additional
shares of Stock or securities convertible into shares of Stock or any
right to subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding up of the
Corporation (other than in connection with a consolidation, merger, or
sale, lease or other transfer of all or substantially all of its
assets);
then the Company shall cause written notice of such event to be filed with the
Warrant Agent and shall cause written notice of such event to be given to each
Holder of Warrant Certificates at such Holder's address appearing on the Warrant
register, by first-class mail, postage prepaid, such giving of notice to be
completed at least calendar days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. The failure
to give the notice required by this Section 7.5 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
dissolution, liquidation or winding up or the vote upon or any other action
taken in connection therewith.
Section 7.6 Addresses. Any communications from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: , and any communications from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to CNF Transportation Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
15
Section 7.7 GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
-------------
ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Section 7.8 Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus, appropriately amended or
supplemented, relating to the Stock (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant and simultaneously with or prior to
the delivery of any shares of Stock issuable upon such exercise, the Warrant
Agent will deliver a Prospectus to each person designated to receive any shares
of Stock.
Section 7.9 Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals under United States
Federal and State securities laws (including, without limitation, to the extent
required, the maintenance of the effectiveness of a registration statement in
respect of the Stock under the Securities Act of 1933, as amended), which may be
required in connection with the original issuance and delivery of the Stock
issued upon exercise of the Warrants.
Section 7.10 Persons Having Rights Under Warrant Agreement. Nothing in
---------------------------------------------
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions herein 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 of the Warrant Certificates 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 contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
Holders of the Warrant Certificates.
Section 7.11 Headings. The Article and Section headings herein and the
--------
Table of Contents are for convenience of reference only and shall not affect the
construction of any of the provisions hereof.
Section 7.12 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 7.13 Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent [and at ] for inspection by the Holder of any Warrant
Certificate. The Warrant Agent may require such Holder to submit its Warrant
Certificate for inspection by it.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
CNF TRANSPORTATION INC.
By: ________________________________
Name:
Title:
[NAME OF WARRANT AGENT]
By: ________________________________
Name:
Title:
17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face of Warrant Certificate]
[Form of Legend if Offered Securities with [Prior to , this Warrant Certificate may be
Warrants which are not immediately transferred or exchanged if and only if the
detachable] [Title of Security] to which it was initially
attached is so transferred or exchanged.]
[Form of Legend if Warrants are not [Prior to , Warrants evidenced by this Warrant
immediately exercisable] Certificate cannot be exercised in whole or in part.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. (NEW YORK CITY TIME) ON ,
CNF TRANSPORTATION INC.
Warrant Certificate representing
Warrants to purchase
[name of security]
as described herein.
No. Warrants
This certifies that or registered assigns is the registered owner
of the above indicated number of Warrants, each Warrant entitling such
registered owner to purchase, at any time [after 5:00 p.m. (New York City time)
on , , and] on or before 5:00 p.m. (New York City time) on ,
(the "Expiration Date"), [one] share of the common stock, par value
$0.625 per share (the "Stock"), of CNF Transportation Inc. (the "Company"), on
the following basis.* During such period, each Warrant shall entitle the Holder
thereof, subject to the provisions of the Warrant Agreement (as defined below),
to purchase from the Company [one] share of Stock at the exercise price of
$ (the "Exercise Price"). The Holder of this Warrant Certificate may
exercise the Warrants evidenced hereby, in whole or in part, by surrendering
this Warrant Certificate, with the exercise form set forth hereon duly
completed, accompanied by payment in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in immediately
available funds] [by wire transfer in immediately available funds], the
----------------------
*Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
A-1
Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor, as warrant agent (the "Warrant Agent") [or at ], and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement. The number of shares of Stock issuable upon exercise of the
Warrants evidenced hereby and certain other terms relating thereto are subject
to adjustment on the terms and subject to the conditions set forth in the
Warrant Agreement referred to below.
The term "Holder" as used herein shall mean [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to , (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which such Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase [any number of whole] shares of Stock. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the registered owner hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of , (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 the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE
-- Prior to , (the "Detachable Date"), this Warrant Certificate may be exchanged
or transferred only together with the [title of Offered Security] (the "Offered
Security") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Additionally, on or prior to the Detachable Date, each
transfer of such Offered Security on the register of the Offered Securities
shall operate also to transfer this Warrant Certificate. After the Detachable
Date, this] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE OR WARRANTS ALONE -- This] Warrant Certificate and all rights
hereunder, may be transferred when surrendered at the corporate trust office of
the Warrant Agent [or at ] by the registered owner or his assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE
-- Except as provided in the immediately preceding paragraph, after] [IF OFFERED
DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS
ALONE -- After] authentication by the Warrant Agent and prior to the
Expiration Date, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at ] for Warrant Certificates
representing the same aggregate number of Warrants.
A-2
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a stockholder, including, without limitation, the right [to
vote or] to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed.
Dated: _______________
CNF TRANSPORTATION INC.
By: ________________________________
Name:
Title:
Attest:
___________________________
Name:
Title:
Certificate of Authentication
This is one of the Warrant Certificates referred to in the within-mentioned
Warrant Agreement.
___________________________
As Warrant Agent
By:________________________
Authorized Signature
A-3
[FORM OF WARRANT CERTIFICATE]
[Reverse Face of Warrant Certificate]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check
payable in immediately available funds] [by wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants exercised,
to , Corporate Trust Department, , Attn: [or at ],
which payment should specify the name of the Holder of this Warrant Certificate
and the number of Warrants exercised by such Holder. In addition, the Holder of
this Warrant Certificate should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to the
Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants, represented
by this Warrant Certificate, to purchase ____________ shares of the common
stock, par value $0.625 per share (the "Stock"), of CNF Transportation Inc. and
represents that he or she has tendered payment for such shares of Stock [in cash
or by certified check or official bank check payable in immediately available
funds] [by wire transfer in immediately available funds] to the order of CNF
Transportation Inc., in the amount of $____________ in accordance with the terms
hereof. The undersigned requests that said shares of Stock be registered in
such names and delivered, all as specified in accordance with the instructions
set forth below.
If said number of shares of Stock is less than all of the shares of Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of the Warrants evidenced hereby be issued
and delivered to the undersigned unless otherwise specified in the instructions
below.
Dated:
Name: ___________________________
(Please Print)
_________________________
(Insert Social Security
or Other Identifying
Number of Holder)
Address: _____________________________
______________________________________
______________________________________
_______________________________________
Signature
(Signature must conform in all respects to
name of Holder as specified on the front face
of the Warrant Certificate and must be
guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker,
savings and loan association or credit union
meeting the requirements of the Warrant Agent,
which requirements include membership or
participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Warrant Agent in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
Signature Guaranteed: ____________________________
___________________________________________________
This Warrant may be exercised at the following addresses:
By hand at: ______________________________________
______________________________________
______________________________________
By mail at: ______________________________________
______________________________________
______________________________________
(Instructions as to form and delivery of certificates representing shares
of Stock and/or Warrant Certificates):
_______________________________________________
_______________________________________________
_______________________________________________
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[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED ____________________________ hereby sells, assigns and
transfers unto
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Please print name and address
(including zip code)
Please insert social security or
other identifying number
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the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
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Signature
(Signature must conform in all respects to name
of Holder as specified on the front face of the
Warrant Certificate and must be guaranteed by an
"eligible guarantor institution," that is, a
bank, stockbroker, savings and loan association
or credit union meeting the requirements of the
Warrant Agent, which requirements include
membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Warrant Agent in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
Signature Guaranteed:
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