Exhibit 10.10
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WARRANT AGREEMENT
BETWEEN
SAMSONITE CORPORATION
AND
BANKBOSTON, N.A.
AS
WARRANT AGENT
_________________________
DATED AS OF JUNE 24, 1998
TABLE OF CONTENTS
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Page
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SECTION 1. Appointment of Warrant Agent
SECTION 2. Warrant Certificates
SECTION 3. Execution of Warrant Certificates
SECTION 4. Registration and Countersignature
SECTION 5. Transfer and Exchange of Warrants
SECTION 6. Registration of Transfers and Exchanges
SECTION 7. Terms of Warrants; Exercise of Warrants
SECTION 8. Payment of Taxes
SECTION 9. Mutilated or Missing Warrant Certificates
SECTION 10. Reservation of Warrant Shares
SECTION 11. [RESERVED]
SECTION 12. Adjustment of Exercise Price and Number of Warrant Shares
Issuable
SECTION 13. Fractional Interests
SECTION 14. Notices to Warrant Holders
SECTION 15. Notices to the Company and Warrant Agent
SECTION 16. Supplements and Amendments
SECTION 17. Concerning the Warrant Agent
SECTION 18. Change of Warrant Agent
SECTION 19. [RESERVED]
SECTION 20. Registration Rights
SECTION 21. Successors
SECTION 22. Termination
SECTION 23. GOVERNING LAW
SECTION 24. Benefits of This Agreement
SECTION 25. Counterparts
SECTION 26. Headings
Exhibit A. Form of Warrant Certificate
A-1
Exhibit B. Certificate
B-2
Exhibit C. Legends
C-1
Exhibit D. Transferee Letter
D-1
WARRANT AGREEMENT (the "Agreement"), dated as of June24, 1998, between Samsonite
Corporation, a Delaware corporation (together with any successors and assigns,
the "Company"), and BANKBOSTON, N.A., a national banking association, as Warrant
Agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell pursuant to a Purchase
Agreement, dated as of June18, 1998, between the Company and CIBC ▇▇▇▇▇▇▇▇▇▇▇
Corp., as initial purchaser (the "Initial Purchaser") (the "Purchase Agreement),
175,000 shares of 137/8% Senior Redeemable Exchangeable Preferred Stock, $1,000
liquidation preference per share (the "Senior Preferred Stock"), along with
Warrants (each a "Warrant," and collectively, the "Warrants") for the purchase
of an aggregate of 1,959,000 shares of its Common Stock, par value $.01 per
share (the "Common Stock," and the shares of Common Stock issuable upon exercise
of the Warrants being referred to herein as the "Warrant Shares"). The Notes
and Warrants will be sold in units (the "Units"), each Unit consisting of one
share of Senior Preferred Stock and one Warrant, each such Warrant entitling the
holder thereof to purchase 11.194 shares of Common Stock;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company
and the Warrant Agent is willing to act in connection with the issuance,
transfer, exchange and exercise of Warrants as provided herein; and
WHEREAS, the holders of Warrants and Warrant
Shares shall, from time to time, have certain rights and obligations with
respect thereto as set forth in the Common Stock Registration Rights Agreement,
dated as of June24, 1998, between the Company and the Initial Purchaser;
NOW, THEREFORE, in consideration of the premises and mutual agreements herein,
the Company and the Warrant Agent hereby agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints the
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Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Warrant Certificates. The Warrants will initially be issued in
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global form (the "Global Warrants"), substantially in the form of Exhibit A
hereto (including footnote 1 thereto). Any certificates (the "Warrant
Certificates") evidencing the Global Warrants to be delivered pursuant to this
Agreement shall be substantially in the form set forth in Exhibit A hereto.
Such Global Warrants shall represent such of the outstanding Warrants as shall
be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Warrants from time to time endorsed thereon and
that the aggregate amount of outstanding Warrants represented thereby may from
time to time be reduced or increased, as appropriate. Any endorsement of a
Global Warrant to reflect the amount of any increase or decrease in the amount
of outstanding Warrants represented thereby shall be made by the Warrant Agent
and Depositary (as defined below) in accordance with instructions given by the
holder thereof. The Depository Trust Company shall act as the Depositary with
respect to the Global Warrants until a successor shall be appointed by the
Company. Upon written request, a Warrant holder may receive from the Depositary
and Warrant Agent Warrants in registered form as definitive Warrant Certificates
(the "Definitive Warrants") as set forth in Section 6 below.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates shall be
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signed on behalf of the Company by its Chairman of the Board, its President,
Chief Executive Officer, Chief Operating Officer or Chief Financial Officer or
Treasurer or a Vice President and by its Secretary or an Assistant Secretary.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the present or any future Chairman of the Board,
President, Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, a Vice President, Secretary or Assistant Secretary and may be
imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, Treasurer, a Vice President,
Secretary or an Assistant Secretary, notwithstanding the fact that at the time
the Warrant Certificates shall be countersigned and delivered or disposed of
such person shall have ceased to hold such office.
In case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent, or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such officer
of the Company; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any
such person was not such officer.
Warrant Certificates shall be dated the date of countersignature by the Warrant
Agent.
SECTION 4. Registration and Countersignature. The Warrants shall be numbered
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and shall be registered on the books of the Company maintained at the principal
office of the Warrant Agent in the Borough of Manhattan, City of New York (the
"Warrant Register") as they are issued.
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. The Warrant Agent
shall, upon written instructions of the Chairman of the Board, the President,
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, a
Vice President, the Secretary or an Assistant Secretary of the Company,
initially countersign and deliver Warrants entitling the holders thereof to
purchase not more than the number of Warrant Shares referred to above in the
first recital hereof and shall thereafter countersign and deliver Warrants as
otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the registered holders (the
"Holders") of the Warrant Certificates as the absolute owners
thereof (notwithstanding any notation of ownership or other writing thereon made
by anyone) for all purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary.
SECTION 5. Transfer and Exchange of Warrants. The Warrant Agent shall from time
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to time, subject to the limitations of Section6, register the transfer of any
outstanding Warrants upon the records to be maintained by it for that purpose,
upon surrender thereof duly endorsed or accompanied (if so required by it) by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent, duly executed by the registered Holder or Holders thereof or by
the duly appointed legal representative thereof or by a duly authorized
attorney. Subject to the terms of this Agreement, each Warrant Certificate may
be exchanged for another certificate or certificates entitling the Holder
thereof to purchase a like aggregate number of Warrant Shares as the certificate
or certificates surrendered then entitle each Holder to purchase. Any Holder
desiring to exchange a Warrant Certificate or Certificates shall make such
request in writing delivered to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged.
Upon registration of transfer, the Warrant Agent shall countersign and deliver
by certified or first class mail a new Warrant Certificate or Certificates to
the persons entitled thereto. The Warrant Certificates may be exchanged at the
option of the Holder thereof, when surrendered at the office or agency of the
Company maintained for such purpose, which initially will be the corporate trust
office of the Warrant Agent in New York, New York, for another Warrant
Certificate, or other Warrant Certificates of different denominations, of like
tenor and representing in the aggregate the right to purchase a like number of
Warrant Shares.
No service charge shall be made for any exchange or registration of transfer of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that is imposed in
connection with any such exchange or registration of transfer.
SECTION 6. Registration of Transfers and Exchanges.
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(a) Transfer and Exchange of Definitive Warrants. When Definitive Warrants are
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presented to the Warrant Agent with a request:
(i) to register the transfer of the Definitive Warrants; or
(ii) to exchange such Definitive Warrants for an equal number of Definitive
Warrants of other authorized denominations, the Warrant Agent shall register the
transfer or make the exchange as requested if its requirements under this
Agreement are met; provided, however, that the Definitive Warrants presented
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or surrendered for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written instruction of transfer
in form satisfactory to the Warrant Agent, duly executed by the Holder
thereof or by such Holder's attorney, duly authorized in writing; and
(y) in the case of Warrants (the "Restricted Warrants") which constitute
Restricted Securities (as such term is defined in Rule 144(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act")), such Warrants shall
be accompanied, in the sole discretion of the Company, by the following
additional information and documents, as applicable, however, it being
understood that the Warrant Agent need not determine which clause (A) through
(C) below is applicable:
(A) if such Restricted Warrant is being delivered to the Warrant Agent by a
Holder for registration in the name of such Holder, without transfer, a
certification from such holder to that effect (in substantially the form of
Exhibit B hereto); or
(B) if such Restricted Warrant is being transferred to a qualified institutional
buyer (as defined in Rule 144A under the Securities Act, a "QIB") in accordance
with Rule 144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act or Regulation
S under the Securities Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect (in substantially the
form of Exhibit B hereto) and, with respect to transfers pursuant to Rule 144 or
Regulation S, an opinion of counsel reasonably acceptable to the Company and the
Warrant Agent to the effect that such transfer does not require registration
under the Securities Act; or
(C) if such Restricted Warrant is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect (in substantially the form
of Exhibit B hereto) and an opinion of counsel reasonably acceptable to the
Company and to the Warrant Agent to the effect that such transfer does not
require registration under the Securities Act and/or other information
reasonably satisfactory to the Company and the Warrant Agent.
(b) Restrictions on Transfer of a Definitive Warrant for a Beneficial Interest
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in a Global Warrant. A Definitive Warrant may not be exchanged for a beneficial
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interest in a Global Warrant except upon satisfaction of the requirements set
forth below. Upon receipt by the Warrant Agent of a Definitive Warrant, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Warrant Agent, together with:
(A) if such Definitive Warrant constitutes a Restricted Warrant, certification,
substantially in the form of Exhibit B hereto, that such Definitive Warrant is
being transferred to a QIB in accordance with Rule 144A under the Securities Act
or pursuant to Regulation S under the Securities Act; and
(B) written instructions directing the Warrant Agent to make, or to direct the
Depositary to make, an endorsement on the Global Warrant to reflect an increase
in the aggregate amount of the Warrants represented by the Global Warrant,
then the Warrant Agent shall cancel such Definitive Warrant and cause, or direct
the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the number of
Warrant Shares represented by the Global Warrant to be increased accordingly.
If no Global Warrant is then outstanding, the Company shall issue and the
Warrant Agent shall countersign a new Global Warrant in the appropriate amount.
(c) Transfer and Exchange of Global Warrants. The transfer and exchange of
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Global Warrants or beneficial interests therein shall be effected through the
Depositary, in accordance with this Warrant Agreement (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor.
(d) Transfer of a Beneficial Interest in a Global Warrant for a Definitive
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Warrant.
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(i) Any person having a beneficial interest
in a Global Warrant may upon request exchange such beneficial interest for a
Definitive Warrant. Upon receipt by the Warrant Agent of written instructions or
such other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Global Warrant and upon receipt by the Warrant Agent of a written order or
such other form of instructions as is customary for the Depositary or the person
designated by the Depositary as having such a beneficial interest containing
registration instructions and, in the case of a beneficial interest in
Restricted Warrants, the following additional information and documents,
however, it being understood that the Warrant Agent need not determine which
clause (A) through (C) below is applicable:
(A) If such beneficial interest is being transferred to the person designated
by the Depositary as being the beneficial owner, a certification from such
person to that effect (in substantially the form of Exhibit B hereto); or
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Regulation S under the Securities
Act or pursuant to an effective registration statement under the Securities Act,
a certification to that effect from the transferee or transferor (in
substantially the form of Exhibit B hereto) and, with respect to transfers
pursuant to Rule 144 or Regulation S, an opinion of counsel reasonably
acceptable to the Company and the Warrant Agent to the effect that such transfer
does not require registration under the Securities Act; or
(C) if such beneficial interest is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect from the transferee or transferor (in substantially
the form of Exhibit B hereto) and an opinion of counsel from the transferee or
transferor reasonably acceptable to the Company and to the Warrant Agent to the
effect that such transfer does not require registration under the Securities Act
and/or other information reasonably satisfactory to the Company and the Warrant
Agent,
then the Warrant Agent will cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Warrant Agent, the
aggregate amount of the Global Warrant to be reduced and, following such
reduction, the Company will execute and, upon receipt of a countersignature, the
Warrant Agent will countersign and deliver to the transferee a Definitive
Warrant.
(ii) Definitive Warrants issued in exchange for a beneficial interest in a
Global Warrant pursuant to this Section 6(d) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Warrant Agent in writing, provided such designation is in accordance with this
Section 6(d). The Warrant Agent shall deliver such Definitive Warrants to the
persons in whose names such Definitive Warrants are registered.
(e) Restrictions on Transfer and Exchange of Global Warrants. Notwithstanding
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any other provisions of this Warrant Agreement (other than the provisions set
forth in subsection (f) of this Section 6), a Global Warrant may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(f) Authentication of Definitive Warrants in Absence of Depositary. If at any
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time:
(i) the Depositary for the Global Warrants notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Warrant and a successor Depositary for the Global Warrant is not appointed by
the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Warrant Agent in writing
that it elects to cause the issuance of Definitive Warrants under this Warrant
Agreement, then the Company will execute, and the Warrant Agent, upon receipt of
an Officers' Certificate (as defined in the Indenture) requesting the
countersignature and delivery of Definitive Warrants, will countersign and
deliver Definitive Warrants, in an aggregate number equal to the aggregate
number of Warrants represented by the Global Warrant, in exchange for such
Global Warrant.
(g) Legends.
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(i) Except as permitted by the following paragraph (ii), each Warrant
Certificate evidencing the Global Warrants and the Definitive Warrants (and all
Warrants issued in exchange
therefor or substitution thereof) shall bear a legend substantially as set forth
in ExhibitC.
(ii) Upon any sale or transfer of a Warrant pursuant to Rule 144 under the
Securities Act or an effective registration statement under the Securities
Act:
(A) in the case of any Warrant that is a Definitive Warrant, the Warrant Agent
shall permit the Holder thereof to exchange such Restricted Warrant for a
Definitive Warrant that does not bear the first paragraph of the legend set
forth in ExhibitC and rescind any related restriction on the transfer of such
Warrant; and
(B) any such Warrant represented by a Global Warrant shall not be subject to the
provisions set forth in (i) above (such sales or transfers being subject only to
the provisions of Section 6(c) hereof); provided, however, that with respect to
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any request for an exchange of a Warrant that is represented by a Global Warrant
for a Definitive Warrant that does not bear the first paragraph of the legend
set forth in Exhibit C, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Warrant Agent that such request
is being made pursuant to Rule 144 (such certification to be substantially in
the form of Exhibit B hereto) and shall obtain an opinion of counsel, reasonably
acceptable to the Company and the Warrant Agent, to the effect that such
transfer does not require registration under the Securities Act.
(h) Cancellation and/or Adjustment of a Global Warrant. At such time as all
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beneficial interests in a Global Warrant have either been exchanged for
Definitive Warrants, redeemed, repurchased or cancelled, such Global Warrant
shall be returned to or retained and cancelled by the Warrant Agent. At any time
prior to such cancellation, if any beneficial interest in a Global Warrant is
exchanged for Definitive Warrants, redeemed, repurchased or cancelled, the
number of Warrants represented by such Global Warrant shall be reduced and an
endorsement shall be made on such Global Warrant, by the Warrant Agent to
reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Definitive Warrants.
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(i) To permit registrations of transfers and exchanges in accordance with the
terms of this Agreement, the Company shall execute, and the Warrant Agent shall
countersign Definitive
Warrants and Global Warrants.
(ii) All Definitive Warrants and Global Warrants issued upon any registration,
transfer or exchange of Definitive Warrants or Global Warrants shall be the
valid obligations of the Company, entitled to the same benefits under this
Warrant Agreement as the Definitive Warrants or Global Warrants surrendered upon
the registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any Warrant, the
Warrant Agent and the Company may deem and treat the person in whose name any
Warrant is registered as the absolute owner of such Warrant, and neither the
Warrant Agent nor the Company shall be affected by notice to the contrary.
SECTION 7. Terms of Warrants; Exercise of Warrants. Subject to the terms of
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this Agreement, each Warrant Holder shall have the right, which may be exercised
commencing on or after the Exercisability Date (as defined below) and until 5:00
p.m., New York City time, on June15, 2010 (the "Expiration Date"), to receive
from the Company the number of fully paid and nonassessable Warrant Shares which
the Holder may at the time be entitled to receive on exercise of such Warrants
and payment of the Exercise Price (as defined below) then in effect for such
Warrant Shares. Subject to the next paragraph of this Section, each Warrant not
exercised prior to the Expiration Date shall become void and all rights
thereunder and all rights in respect thereof under this Agreement shall cease as
of such time. No adjustments as to dividends will be made upon exercise of the
Warrants.
"Exercisability Date" shall mean the date beginning on the Business Day
following the first date on which the Exercise Price can be determined and
ending on the Expiration Date.
The initial price per share at which Warrant Shares shall be purchasable upon
exercise of Warrants (the "Exercise Price") shall equal 110% of the average of
the closing prices of the Company's Common Stock on the five consecutive trading
days commencing with the trading day immediately following the closing of the
Tender Offer (as defined in the Offering Memorandum dated June 18, 1998 pursuant
to which the Warrants were offered) as reported by the Nasdaq National Market,
subject to adjustment as provided below. A Warrant may be exercised upon
surrender at the office or agency of the Company maintained for such purpose,
which initially will be the corporate trust office of the Warrant Agent or its
agents in New York, New York, of the certificate or certificates evidencing the
Warrants to be exercised with the form of election to purchase on the reverse
thereof duly filled in and signed, which signature shall be guaranteed by a
participant in a recognized Signature Guarantee Medallion Program, and upon
payment to the Warrant Agent for the account of the Company of the Exercise
Price, as adjusted as herein provided, for the number of Warrant Shares in
respect of which such Warrants are then exercised. Payment of the Exercise
Price may be made (a) in the form of cash or by certified or official bank check
payable to the order of the Company in New York Clearing House Funds, (b) by
tendering shares of Senior Preferred Stock with an aggregate liquidation
preference equal to the aggregate Exercise Price, (c) by delivering to the
Company a copy of irrevocable instructions to a registered broker/dealer (which
shall have been countersigned and agreed to by such registered broker/dealer) to
promptly deliver to the Company (but in no event later than the third business
day following the sale referred to below) an amount of the proceeds from the
sale of Warrant Shares to be issued upon exercise of the Warrants being
exercised sufficient to pay the Exercise Price ("Cashless Exercise") or (d) any
combination of (a), (b) or (c) above.
Subject to the provisions of Section 6 hereof, upon such surrender of Warrants
and payment of the Exercise Price, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Holder and in such name or names as the Warrant Holder may designate a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants together with cash as provided in Section 13.
Such certificate or certificates shall be deemed to have been issued and any
person so named therein shall be deemed to have become a holder of record of
such Warrant Shares as of the date of the surrender of such Warrants and payment
of the Exercise Price.
The Warrants shall be exercisable, at the election of the Holders thereof,
either in full or from time to time in part and, in the event that a certificate
evidencing Warrants is exercised in respect of fewer than all of the Warrant
Shares issuable on such exercise at any time prior to the date of expiration of
the Warrants, a new certificate evidencing the remaining Warrant or Warrants
will be issued, and the Warrant Agent is hereby irrevocably authorized to
countersign and
to deliver the required new Warrant Certificate or Certificates pursuant to the
provisions of this Section 7 and of Section 3 hereof, and the Company, whenever
required by the Warrant Agent, will promptly supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall then
be either delivered to the Company or disposed of by the Warrant Agent in a
manner consistent with the Warrant Agent's customary procedure for such disposal
and in a manner reasonably satisfactory to the Company. The Warrant Agent shall
account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all monies received by the Warrant Agent for the
purchase of the Warrant Shares through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for inspection
by the Holders during normal business hours at its office. The Company shall
supply the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may request.
SECTION 8. Payment of Taxes. The Company will pay all documentary stamp taxes
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attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants; provided, however, that the Company shall not be required to pay any
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tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Warrant Shares in a
name other than that of the registered Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. In case any of the
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Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue and the Warrant Agent may countersign, in exchange
and substitution for and upon cancellation of the mutilated Warrant Certificate,
or in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number
of Warrants, but only upon receipt of evidence satisfactory to the Company and
the Warrant Agent of such loss, theft or destruction of such Warrant Certificate
and indemnity, if requested, also satisfactory to them. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe.
SECTION 10. Reservation of Warrant Shares. The Company will at all times
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reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
The Company will keep a copy of this Agreement on file with the transfer agent
for the Common Stock (the "Transfer Agent") and with every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of the rights of purchase represented by the Warrants. The Warrant Agent is
hereby irrevocably authorized to requisition from time to time from such
Transfer Agent the stock certificates required to honor outstanding Warrants
upon exercise thereof in accordance with the terms of this Agreement. The
Company will supply such Transfer Agent with duly executed certificates for such
purposes and will provide or otherwise make available any cash which may be
payable as provided in Section13. The Company will furnish such Transfer Agent a
copy of all notices of adjustments and certificates related thereto transmitted
to each Holder pursuant to Section 14 hereof.
The Company covenants that all Warrant Shares which may be issued upon exercise
of Warrants will, upon payment of the Exercise Price therefor and issue, be
validly authorized and issued, fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issuance thereof. The Company will not enter into any agreements
inconsistent in any material respect with the rights of Holders hereunder. The
Company will use its reasonable best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Agreement.
SECTION 11. [RESERVED].
SECTION 12. Adjustment of Exercise Price and Number of Warrant Shares Issuable.
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The Exercise Price and the number of shares of Common Stock issuable upon the
exercise of each Warrant (the "Exercise Rate") is subject to adjustment from
time to time upon the occurrence of the events enumerated in this Section 12.
(a) Adjustment for Change in Capital Stock. If the Company:
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(1) pays a dividend or makes a distribution on its Common Stock in shares of
its Common Stock or other capital stock of the Company; or
(2) subdivides, combines or reclassifies its outstanding shares of Common
Stock, then the Exercise Rate in effect immediately prior to such action shall
be proportionately adjusted so that the Holder of any Warrant thereafter
exercised may receive the aggregate number and kind of shares of capital stock
of the Company which such Holder would have owned immediately following such
action if such Warrant had been exercised immediately prior to such action and
the Exercise Price in effect immediately prior to such action shall be adjusted
to a price determined by multiplying the Exercise Price in effect immediately
prior to such action by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding before giving effect to such action and
the denominator of which shall be the number of shares of Common Stock and/or
such other capital stock outstanding referred to in the foregoing clause (a)(1)
after giving effect to such action.
The adjustment shall become effective immediately after the record date in the
case of a dividend or distribution and immediately after the effective date in
the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of the Company, the board of
directors of the Company shall determine the allocation of the adjusted Exercise
Price between the classes of capital stock. After such allocation, the exercise
privilege and the Exercise Price of each class of capital stock shall thereafter
be subject to adjustment on terms comparable to those applicable to Common Stock
in this Section 12.
Such adjustment shall be made successively whenever any event listed above shall
occur.
(b) Adjustment for Certain Issuances of Common Stock. If the Company issues or
------------------------------------------------
sells to all holders of its Common Stock shares of its Common Stock or
distributes to all holders of its Common Stock any rights, options or warrants
entitling
them to purchase shares of Common Stock, or securities convertible into or
exchangeable for Common Stock, in each case, at a price per share less than the
Current Market Value on the record date for determining entitlements of holders
of Common Stock to participate in such issuance, sale or distribution (the "Time
of Determination"), the Exercise Rate shall be adjusted in accordance with the
formula:
E' = E x O + N
------
O + N x P
-----
M
and the Exercise Price shall be adjusted in accordance with the following
formula:
EP' = EP x E
-
E'
where:
E' = the adjusted Exercise Rate.
E = the Exercise Rate immediately prior to the Time of Determination for
any such issuance, sale or distribution.
EP'= the Adjusted Exercise Price.
EP = the Exercise Price immediately prior to the Time of Determination for
any such issuance, sale or distribution.
O = the number of Fully Diluted Shares (as defined below) outstanding
immediately prior to the Time of Determination for any such issuance,
sale or distribution.
N = the number of additional shares of Common Stock issued, sold or
issuable upon exercise of such rights, options or warrants.
P = the per share price received and receivable by the Company in the case
of any issuance or sale of Common Stock or rights, options or warrants
inclusive of the exercise price per share of Common Stock payable upon
exercise of such rights, options or warrants.
M = the Current Market Value per share of Common Stock on the Time of
Determination for any such issuance, sale or distribution.
For purposes of this Section12 the term "Fully Diluted Shares" shall mean (i)
the shares of Common Stock outstanding as of a specified date, and (ii) the
shares of Common Stock into or for which rights, options, warrants or other
securities outstanding as of such date are exercisable or convertible (other
than the Warrants).
The adjustments shall be made successively whenever any such rights, options or
warrants are issued and shall become effective immediately after the relevant
Time of Determination.
Notwithstanding the foregoing, the Exercise Rate and the Exercise Price shall
not be subject to adjustment in connection with (i)the issuance of any shares of
Common Stock upon exercise of any such rights, options or warrants which have
previously been the subject of an adjustment under this Agreement for which the
required adjustment has been made and (ii) any exercise of the Warrants. If at
the end of the period during which any such rights, options or warrants are
exercisable, not all rights, options or warrants shall have been exercised, the
Warrant shall be immediately readjusted to what it would have been if "N" in
each of the above formulas had been the number of shares actually issued.
(c) Adjustment for Other Distributions. If the Company distributes to all
----------------------------------
holders of its Common Stock (i)any evidences of indebtedness of the Company or
any of its subsidiaries, (ii)any assets of the Company or any of its
subsidiaries (other than cash dividends or other cash distributions that
constitute an Ordinary Cash Distribution and other than any dividend or
distribution to all holders of Common Stock in connection with the liquidation,
dissolution or winding-up of the Company), or (iii)any rights, options or
warrants to acquire any of the foregoing or to acquire any other securities of
the Company, the Exercise Rate shall be adjusted in accordance with the formula:
E' = E x M
---
M - F
and the Exercise Price shall be decreased (but not increased) in accordance with
the following formula:
EP' = EP x E
-
E'
where:
E' = the adjusted Exercise Rate.
E = the current Exercise Rate on the record date referred to in this
paragraph (c) below.
EP'= the Adjusted Exercise Price.
EP = the current Exercise Price on the record date referred to in this
paragraph (c) below.
M = the Current Market Value per share of Common Stock on the record date
referred to in this paragraph (c) below.
F = the fair market value (as determined in good faith by the Company's
board of directors) on the record date referred to in this paragraph
(c) below of the indebtedness, assets, rights, options or warrants
distributable in respect of one share of Common Stock.
The adjustments shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution. If any
adjustment is made pursuant to clause(iii) above of this subsection(c) as a
result of the issuance of rights, options or warrants and at the end of the
period during which any such rights, options or warrants are exercisable, not
all such rights, options or warrants shall have been exercised, the Warrant
shall be immediately readjusted as if "F" in the above formula was the fair
market value on the record date of the indebtedness or assets actually
distributed upon exercise of such rights, options or warrants divided by the
number of shares of Common Stock outstanding on the record date.
Notwithstanding anything to the contrary contained in this subsection (c), if
"M-F" in the above formula is less than $1.00 (or is a negative number) then in
lieu of the adjustment otherwise required by this subsection (c), the Company
may elect to distribute to the holders of the Warrants, upon exercise thereof,
the evidences of indebtedness, assets, rights, options or warrants which would
have been distributed to such holders had such warrants been exercised
immediately prior to the record date for such distribution.
This subsection does not apply to rights, options or warrants referred to in
subsection(b) of this Section12.
(d) Current Market Value. "Current Market Value" per share of Common Stock or
--------------------
of any other security (herein collectively referred to as a "Security") at any
date shall be:
(1) if the Security is not registered under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (i)the value of the Security determined in good
faith by the board of directors of the Company and certified in a board
resolution, based on the most recently completed arm's length transaction
between the Company and a person other than an Affiliate of the Company and the
closing of which occurs on such date or shall have occurred within the six
months preceding such date or (ii)if no such transaction shall have occurred on
such date or within such six-month period, the value of the Security determined
as of a date within 30 days preceding such date by an Independent Financial
Expert, or
(2) if the Security is registered under the Exchange Act, the average
of the daily closing bid prices of such Security for 30 consecutive Business
Days selected by the Company from the
period of 45 Business Days preceding such date, but only if such Security shall
have been listed on a national securities exchange or the Nasdaq National Market
or traded through an automated quotation system during such entire 45 Business
Day period.
The "closing bid price" for any Security on each Business Day means the closing
price, regular way, on such day on the principal exchange on which such Security
is traded, or if no sale takes place on such day, the average of the closing bid
and asked prices on such day.
"Independent Financial Expert" shall mean any nationally recognized investment
banking firm that is not an Affiliate of the Company. Any such person may
receive customary compensation and indemnification by the Company for opinions
or services it provides as an Independent Financial Expert.
"Affiliate" of any specified person means any other person which directly or
indirectly through one or more intermediaries controls or is controlled by, or
is under common control with, such specified person. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") as used with
respect to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of at least 10% of the
-------- -------
voting securities of a person shall be deemed to be control.
A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is a
Saturday, a Sunday, a federally-recognized holiday or a day on which banking
institutions are not required to be open in the State of New York.
"Ordinary Cash Distribution" means any quarterly cash dividend on the Common
Stock to the extent that the aggregate cash dividend per share of Common Stock
in any calendar quarter does not exceed the greater of (x) the amount per share
of Common Stock of the next preceding quarterly cash dividend on the Common
Stock to the extent that such preceding quarterly dividend did not require an
adjustment to the Exercise Price pursuant to paragraph (c)(ii) of this Section12
(as adjusted to reflect subdivisions or combinations of the Common Stock) and
(y) 3.0% of the average of the last reported sales prices of the Common Stock
during the ten trading days immediately prior to
the date of declaration of such dividend.
(e) When De Minimis Adjustment May Be Deferred. No adjustment in the Exercise
------------------------------------------
Rate and Exercise Price need be made unless the adjustment would require an
increase or decrease of at least 1% in the Exercise Rate and Exercise Price.
Notwithstanding the foregoing, any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment, provided
that no such adjustment shall be deferred beyond the date on which a Warrant is
exercised. All calculations under this Section12 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
(f) When No Adjustment Required. If an adjustment is made upon the
---------------------------
establishment of a record date for an issuance, sale or distribution subject to
subsection(a), (b) or (c) hereof and such issuance, sale or distribution is
subsequently cancelled or is not otherwise made, the Exercise Rate and Exercise
Price then in effect shall be readjusted, effective as of the date when the
board of directors determines to cancel such issuance, sale or distribution or
when it is otherwise evident that such issuance, sale or distribution will not
be so made, to that which would have been in effect if such record date had not
been fixed. If an adjustment would be required under two or more of
subsections(a), (b) and (c), such adjustments will be determined without
duplication.
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.
(g) Notice of Adjustment. Whenever the Exercise Rate or Exercise Price is
--------------------
adjusted, the Company shall provide the notices required by Section14 hereof.
(h) Voluntary Reduction. The Company from time to time may increase the
-------------------
Exercise Rate or reduce the Exercise Price by any amount for any period of time
(including, without limitation, permanently) if the period is at least 20
Business Days.
An increase of the Exercise Rate or reduction in the Exercise Price under this
subsection(h) (other than a permanent increase) does not change or adjust the
Exercise Rate otherwise in effect for purposes of subsections(a), (b) or (c) of
this Section 12.
(i) When Issuance or Payment May Be Deferred. In any case in which this
----------------------------------------
Section12 shall require that an adjustment in the Exercise Rate or
Exercise Price be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event (i)issuing to the
Holder of any Warrant exercised after such record date the Warrant Shares and
other capital stock of the Company, if any, issuable upon such exercise over and
above the Warrant Shares and other capital stock of the Company, if any,
issuable upon such exercise on the basis of the Exercise Rate prior to such
adjustment, and (ii)paying to such Holder any amount in cash in lieu of a
fractional share pursuant to Section13; provided, however, that the Company
-------- -------
shall deliver to the Warrant Agent and shall cause the Warrant Agent, on behalf
of and at the expense of the Company, to deliver to such Holder a due ▇▇▇▇ or
other appropriate instrument evidencing such Holder's right to receive such
additional Warrant Shares, other capital stock and cash upon the occurrence of
the event requiring such adjustment.
(j) Reorganizations. In case of any capital reorganization, other than in the
---------------
cases referred to in Section12(a), (b) or (c) hereof and other than any capital
reorganization that does not result in any reclassification of the outstanding
shares of Common Stock into shares of other stock or other securities or
property, or the consolidation or merger of the Company with or into another
corporation (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification of the
outstanding shares of Common Stock into shares of other stock or other
securities or property), or the sale of all or substantially all of the assets
of the Company (collectively such actions being hereinafter referred to as
"Reorganizations"), there shall thereafter be deliverable upon exercise of any
Warrant (in lieu of the number of shares of Common Stock theretofore
deliverable) the number of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock that would otherwise have
been deliverable upon the exercise of such Warrant would have been entitled upon
such Reorganization if such Warrant had been exercised in full immediately prior
to such Reorganization. In case of any Reorganization, appropriate adjustment,
as determined in good faith by the board of directors of the Company, whose
determination shall be described in a duly adopted resolution certified by the
Company's Secretary or Assistant Secretary, shall be made in the application of
the provisions
herein set forth with respect to the rights and interests of Holders so that the
provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any such shares or other securities or property
thereafter deliverable upon exercise of Warrants.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if other
than the Company) resulting from such Reorganization or the corporation or other
entity purchasing such assets shall (i)expressly assume, by a supplemental
warrant agreement or other acknowledgment executed and delivered to the Warrant
Agent the obligation to deliver to the Warrant Agent and to cause the Warrant
Agent to deliver to each such Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Holder may be entitled to
purchase, and the due and punctual performance and observance of each and every
covenant, condition, obligation and liability under this Agreement to be
performed and observed by the Company in the manner prescribed herein and (ii)if
such Reorganization takes place prior to consummation by the Company of all of
its registration obligations under the Common Stock Registration Rights
Agreement, enter into an agreement providing to the Holders rights and benefits
substantially similar to those enjoyed by the Holders under the Common Stock
Registration Rights Agreement of even date herewith.
The foregoing provisions of this Section12(j) shall apply to successive
Reorganization transactions.
(k) Form of Warrants. Irrespective of any adjustments in the number or kind of
----------------
shares purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
(l) Warrant Agent's Disclaimer. The Warrant Agent has no duty to determine
--------------------------
when an adjustment under this Section12 should be made, how it should be made or
what it should be. The Warrant Agent has no duty to determine whether any
provisions of a supplemental warrant agreement under subsection (j) of this
Section12 are correct. The Warrant Agent makes no representation as to the
validity or value of any securities or assets issued upon exercise of Warrants.
The Warrant Agent shall not be responsible for the Company's failure to comply
with this Section 12.
(m) Miscellaneous. For purpose of this Section12 the term "shares of Common
-------------
Stock" shall mean (i)shares of the class of stock designated as the Common
Stock, par value $.01 per share, of the Company (the "Common Stock") as of the
date of this Agreement, and (ii)shares of any other class of stock resulting
from successive changes or reclassification of such shares consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value. In the event that at any time, as a result of an adjustment made
pursuant to this Section12, the Holders of Warrants shall become entitled to
purchase any securities of the Company other than, or in addition to, shares of
Common Stock, thereafter the number or amount of such other securities so
purchasable upon exercise of each Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Warrant Shares contained in subsections(a)
through (m) of this Section12, inclusive, and the provisions of Sections7, 8, 10
and 13 with respect to the Warrant Shares or the Common Stock shall apply on
like terms to any such other securities.
SECTION 13. Fractional Interests. The Company shall not be required to issue
--------------------
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same Holder, the
number of full Warrant Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of the Warrants so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 13, be issuable
on the exercise of any Warrants (or specified portion thereof), the Company
shall pay an amount in cash equal to the excess of the value (as determined by
the Board of Directors in good faith) of a Warrant Share over the Exercise Price
on the day immediately preceding the date the Warrant is presented for exercise,
multiplied by such fraction.
SECTION 14. Notices to Warrant Holders. Upon any adjustment pursuant to
--------------------------
Section 12 hereof, the Company shall give prompt written notice of such
adjustment to the Warrant Agent and shall cause the Warrant Agent, on behalf of
and at the expense of the Company, within 10 days after notification is received
by the Warrant Agent of such adjustment, to mail by first class mail, postage
prepaid, to each Holder a notice of such
adjustment(s) and shall deliver to the Warrant Agent a certificate of the Chief
Financial Officer of the Company, setting forth in reasonable detail (i)the
number of Warrant Shares purchasable upon the exercise of each Warrant and the
Exercise Price of such Warrant after such adjustment(s), (ii)a brief statement
of the facts requiring such adjustment(s) and (iii)the computation by which such
adjustment(s) was made. Where appropriate, such notice may be given in advance
and included as a part of the notice required under the other provisions of this
Section14.
In case:
(a) the Company shall authorize the issuance to all holders of shares of Common
Stock of rights, options or warrants to subscribe for or purchase shares of
Common Stock or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all holders of shares of
Common Stock of evidences of its indebtedness or assets; or
(c) of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for shares of
Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of
the Company; or
(e) the Company proposes to take any action that would require an adjustment to
the Exercise Rate pursuant to Section12; then the Company shall give prompt
written notice to the Warrant Agent and shall cause the Warrant Agent, on behalf
of and at the expense of the Company to give to each of the registered holders
of the Warrant Certificates at his or its address appearing on the Warrant
Register, at least 30 days (or 20 days in any case specified in clauses(a) or
(b) above) prior to the applicable record date hereinafter specified, or the
date of the event in the case of events for which there is no record date, by
first-class mail, postage prepaid, a written notice stating (i)the date as of
which the holders of record of shares of Common Stock to be entitled to receive
any such rights, options, warrants or distribution are to be determined, or
(ii)the initial expiration date set forth in any tender offer or exchange offer
for shares of Common Stock, or (iii)the date on which any such consolidation,
merger, conveyance, transfer,
dissolution, liquidation or winding up is expected to become effective or
consummated, and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up. The failure by the Company or the Warrant Agent to give such notice or any
defect therein shall not affect the legality or validity of any distribution,
right, option, warrant, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up, or the vote upon any action.
The Company shall give prompt written notice to the Warrant Agent and shall
cause the Warrant Agent, on behalf of and at the expense of the Company to give
to each Holder written notice of any determination to make a distribution or
dividend to the holders of its Common Stock of any assets (including cash (other
than any Ordinary Cash Distribution)), debt securities, preferred stock, or any
rights or warrants to purchase debt securities, preferred stock, assets or other
securities (other than Common Stock, or rights, options, or warrants to purchase
Common Stock) of the Company, which notice shall state the nature and amount of
such planned dividend or distribution and the record date therefor, and shall be
given by the Company at least 20 days prior to such record date therefor.
Nothing contained in this Agreement or in any Warrant Certificate shall be
construed as conferring upon the Holders the right to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company.
SECTION 15. Notices to the Company and Warrant Agent. Any notice or demand
----------------------------------------
authorized by this Agreement to be given or made by the Warrant Agent or by any
Holder to or on the Company shall be sufficiently given or made when received at
the office of the Company expressly designated by the Company as its office for
purposes of this Agreement (until the Warrant Agent is otherwise notified in
accordance with this Section15 by the Company), as follows:
Samsonite Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with copy to General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Any notice pursuant to this Agreement to be given by the Company or by any
Holder(s) to the Warrant Agent shall be sufficiently given when received by the
Warrant Agent at the address appearing below (until the Company is otherwise
notified in accordance with this Section by the Warrant Agent).
BankBoston, N.A.
c/o Boston EquiServe, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
SECTION 16. Supplements and Amendments. The Company and the Warrant Agent may
--------------------------
from time to time supplement or amend this Agreement without the approval of any
holders of Warrants in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not in any way adversely affect the
rights of any holder of Warrants hereunder. Any amendment or supplement to this
Agreement that has a material adverse effect on the rights of holders hereunder
shall require the written consent of registered holders of a majority of the
then outstanding Warrants. The consent of each holder of a Warrant affected
shall be required for any amendment pursuant to which the Exercise Price would
be increased or the number of Warrant Shares purchasable upon exercise of
Warrants would be decreased (not including adjustments contemplated hereunder).
The Warrant Agent shall be entitled to receive and shall be fully protected in
relying upon an officers' certificate and opinion of counsel as conclusive
evidence that any such amendment or supplement is authorized or permitted
hereunder, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
SECTION 17. Concerning the Warrant Agent. The Warrant Agent undertakes the
----------------------------
duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the Holders, by
their acceptance of Warrants, shall be bound:
(a) The statements contained herein and in the Warrant Certificate shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or any action taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company
to comply with the covenants contained in this Agreement or in the Warrants to
be complied with by the Company.
(c) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself (through its
employees) or by or through its attorneys or agents (which shall not include its
employees) and shall not be responsible for the misconduct of any agent
appointed with due care.
(d) The Warrant Agent may consult at any time with legal counsel satisfactory
to it (who may be counsel for the Company), and the Warrant Agent shall incur no
liability or responsibility to the Company or to any Holder in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel.
(e) Whenever in the performance of its duties under this Agreement the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless such evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, the President, Chief
Financial Officer, one of the Vice Presidents, the Treasurer or the Secretary of
the Company and delivered to the Warrant Agent; and such certificate shall be
full authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(f) The Company agrees to pay the Warrant Agent reasonable compensation for all
services rendered by the Warrant Agent in the performance of its duties under
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind
and nature incurred by the Warrant Agent (including reasonable fees and expenses
of the Warrant Agent's counsel and agents) in the performance of its duties
under this Agreement, and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and counsel fees,
for anything done or omitted by the Warrant Agent in the performance of its
duties under this Agreement, except as a result of the Warrant Agent's
negligence or bad faith.
(g) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more Holders shall furnish the Warrant Agent with
reasonable security and indemnity satisfactory to the Warrant Agent for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as the Warrant Agent may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding relative thereto, and
any such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery of judgment shall be for
the ratable benefit of the Holders, as their respective rights or interests may
appear.
(h) The Warrant Agent and any stockholder, director, officer or employee of the
Warrant Agent may buy, sell or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transactions in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement or such director, officer or employee. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Company or for any
other legal entity including, without limitation, acting as Transfer Agent or as
a lender to the Company or an affiliate thereof.
(i) The Warrant Agent shall act hereunder solely as agent, and its duties shall
be determined solely by the provisions hereof. The Warrant Agent shall not be
liable for anything which it may do or refrain from doing in connection with
this Agreement except for its own negligence or
bad faith.
(j) The Warrant Agent will not incur any liability or responsibility to the
Company or to any Holder for any action taken in reliance on any notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument reasonably believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties.
(k) The Warrant Agent shall not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except the due
execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant (except its countersignature thereof); nor shall the
Warrant Agent by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Warrant Shares (or other
stock) to be issued pursuant to this Agreement or any Warrant, or as to whether
any Warrant Shares (or other stock) will, when issued, be validly issued, fully
paid and nonassessable, or as to the Exercise Price or the number or amount of
Warrant Shares or other securities or other property issuable upon exercise of
any Warrant.
(l) The Warrant Agent is hereby authorized and directed to accept instructions
with respect to the performance of its duties hereunder from the Chairman of the
Board, the President, any Vice President or the Secretary of the Company, and to
apply to such officers for advice or instructions in connection with its duties,
and shall not be liable for any action taken or suffered to be taken by it in
good faith and without negligence in accordance with instructions of any such
officer or officers.
SECTION 18. Change of Warrant Agent. The Warrant Agent may resign at any time
-----------------------
and be discharged from its duties under this Agreement by giving to the Company
30 days' notice in writing. The Warrant Agent may be removed by like notice to
the Warrant Agent from the Company. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Holder (who shall with such notice submit
his Warrant for inspection by the Company), then any Holder may apply to any
court of competent jurisdiction for
the appointment of a successor to the Warrant Agent. Pending appointment of a
successor warrant agent, either by the Company or by such court, the duties of
the Warrant Agent shall be carried out by the Company. Any successor warrant
agent, whether appointed by the Company or such a court, shall be a bank or
trust company in good standing, incorporated under the laws of the United States
of America or any State thereof or the District of Columbia and having at the
time of its appointment as warrant agent a combined capital and surplus of at
least $10,000,000. After appointment, the successor warrant agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor warrant agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for such purpose. Failure
to file any notice provided for in this Section 18, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent, as the
case may be. In the event of such resignation or removal, the Company or the
successor warrant agent shall mail by first class mail, postage prepaid, to each
Holder, written notice of such removal or resignation and the name and address
of such successor warrant agent.
SECTION 19. [RESERVED]
SECTION 20. Registration Rights. The Holders shall be entitled to all of the
-------------------
benefits of that certain Common Stock Registration Rights Agreement between the
Company and the Initial Purchasers dated the date hereof, in connection with the
Common Stock to be issued in connection with the exercise of the Warrants.
SECTION 21. Successors. All the covenants and provisions of this Agreement by
----------
or for the benefit of the Company, the Warrant Agent or any holder of Warrants
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 22. Termination. This Agreement shall terminate at 5:00p.m. New York
-----------
City time on June15, 2010. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if all Warrants have been exercised or redeemed
pursuant to this Agreement.
SECTION 23. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED
-------------
HEREUNDER SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
SECTION 24. Benefits of This Agreement. Nothing in this Agreement shall be
--------------------------
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered Holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered Holders of the Warrant Certificates.
SECTION 25. Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 26. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
SAMSONITE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BANKBOSTON, N.A.
as Warrant Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
================================
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Administration Secretary
EXHIBIT A
[Form of Warrant Certificate]
[Face]
[THIS SECURITY IS A GLOBAL CERTIFICATE AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY
IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE WARRANT AGREEMENT DATED AS OF JUNE24, 1998 BETWEEN THE COMPANY AND
THE WARRANT AGENT (THE "WARRANT AGREEMENT"), AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE WARRANT AGREEMENT. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW
YORK CORPORATION) ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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.]
EXERCISABLE ON OR AFTER THE EXERCISABILITY DATE
AND ON OR BEFORE JUNE15, 2010
No. _______
_______ Warrants
Warrant Certificate
SAMSONITE CORPORATION
This Warrant Certificate certifies that ______, or registered assigns, is the
registered holder of Warrants expiring June15, 2010 (the "Warrants") to purchase
shares of Common Stock, par value $.01 per share (the "Common Stock"), of
Samsonite Corporation, a Delaware corporation (the "Company"). Each Warrant
entitles the holder upon exercise to receive from the Company on or after the
Exercisability Date and on or before 5:00 p.m. New York City Time on June15,
2010, 11.194 fully paid and nonassessable shares of Common Stock (each such
share a "Warrant Share") at the initial exercise price (the "Exercise Price")
equal to 110% of the average of the closing prices of the Company's Common Stock
on the five consecutive trading days commencing the trading day immediately
following the closing of the tender offer by the Company for up to 10.5 million
shares of Common Stock pursuant to an offer to purchase dated May 20, 1998, as
supplemented by a supplement dated June 9, 1998 as reported on the Nasdaq
National Market payable upon surrender of this Warrant Certificate and payment
of the Exercise Price in the manner set forth in the Warrant Agreement, subject
only to the conditions set forth herein and in the Warrant Agreement
referred to on the reverse hereof. The Exercise Price and number of Warrant
Shares issuable upon exercise of the Warrants are subject to adjustment upon the
occurrence of certain events as set forth in the Warrant Agreement.
No Warrant may be exercised before the Exercisability Date or after 5:00 p.m.,
New York City Time, on June15, 2010 and to the extent not exercised by such time
such Warrants shall become void.
This Warrant Certificate shall not be valid unless countersigned by the Warrant
Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed and construed in accordance with the
internal laws of the State of New York.
IN WITNESS WHEREOF, Samsonite Corporation has caused this Warrant Certificate to
be signed by its and by its Secretary, each by a facsimile of his signature,
and has caused a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
Dated: , 1998
SAMSONITE CORPORATION
By: _________________________
[]
By: _________________________
Secretary
Countersigned:
BANKBOSTON, N.A.,
as Warrant Agent
By: _________________________
Authorized Signature
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants expiring June15, 2010, entitling the holder on exercise to
receive shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock"), and are issued or to be issued pursuant to a Warrant Agreement
dated as of June24, 1998 (the "Warrant Agreement"), duly executed and delivered
by the Company to BankBoston, N.A., a national banking association corporation,
as warrant agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants. A
copy of the Warrant Agreement may be obtained by the holder hereof upon written
request to the Company.
Warrants may be exercised at any time on or after the "Exercisability Date" and
on or before June15, 2010, subject to extension as provided in the Warrant
Agreement. The holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment in the manner provided for in the Warrant Agreement at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
The Warrant Agreement provides that upon the occurrence of certain events the
number of Warrants set forth on the face hereof and the Exercise Price may,
subject to certain conditions, be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
The holders of the Warrants are entitled to certain registration rights with
respect to the Common Stock purchasable upon exercise thereof. Such registration
rights are set forth in the Common Stock Registration Rights Agreement, dated as
of June24, 1998, between the Company and the Initial Purchaser.
Warrant Certificates, when surrendered at the office of the Warrant Agent by the
registered holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate
at the office of the Warrant Agent a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations
provided in the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, of any distribution to the holder(s) hereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary. Neither the Warrants nor this Warrant
Certificate entitles any holder hereof to any rights of a stockholder of the
Company.
[Form of Election to Purchase]
(To Be Executed upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to receive _____ shares of Common Stock and herewith
tenders payment for such shares to the order of Samsonite Corporation in the
amount of $_____ payable in (select one or more: (i) cash, (ii) shares of Senior
Preferred Stock and/or (iii) pursuant to a Cashless Exercise) in accordance with
the terms hereof and of the Warrant Agreement. The undersigned requests that a
certificate for such shares be registered in the name of ______________, whose
address is __________ and that such shares be delivered to _________ whose
address is ______________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of _____________, whose address is ________, and that
such Warrant Certificate be delivered to ___________, whose address is
________________.
Date: Signature:
Signature Guaranteed:
SCHEDULE OF EXCHANGES OF CERTIFICATED WARRANTS
----------------------------------------------
The following exchanges of a part of this Global Warrant for certificated
Warrants have been made:
Date of Exchange
Amount of decrease in Number of Warrants of this Global Warrant
Amount of increase in Number of Warrants of this Global Warrant
Number of Warrants of this Global Warrant following such decrease (or increase)
Signature of authorized officer of Warrant Agent
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Purchase Common Stock (the "Warrants")
of Samsonite Corporation
This Certificate relates to ____ Warrants held in* ___ book-entry or* _______
certificated form by ______ (the "Transferor").
The Transferor:*
[_] has requested the Warrant Agent by written order to deliver in
exchange for its beneficial interest in the Global Warrant held by the
depository a Warrant or Warrants in definitive, registered form equal to its
beneficial interest in Warrants represented by such Global Warrant (or the
portion thereof indicated above); or
[_] has requested the Warrant Agent by written order to exchange or
register the transfer of a Warrant or Warrants.
In connection with such request, the Transferor does hereby certify that
Transferor is familiar with the Warrant Agreement (the "Agreement") relating to
the Warrants and the restrictions on transfers thereof as provided in Section 6
of such Agreement, and that the transfer of this Warrant requested hereby does
not require registration under the Securities Act (as defined below) because[*]:
[_] Such Warrant is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 6(a)(y)(A) or Section 6(d)(i)(A) of
the Agreement).
[_] Such Warrant is being transferred to a qualified institutional buyer
(as defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")), in reliance on Rule 144A or in accordance with Regulation S
under the 1933 Act. If such transfer is in accordance with Regulation S, an
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
[_] Such Warrant is being transferred in accordance with Rule 144 under
the Securities Act. An opinion of counsel to the effect that such transfer does
not require registration under the Securities Act accompanies this Certificate.
[_] Such Warrant is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A or Rule 144 or Regulation S under the Securities Act. An
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
______________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
Date: _____________
*Check applicable box.
EXHIBIT C
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(K) (OR ANY
SUCCESSOR PROVISION THEREOF) AS PERMITTING THE RESALE BY NON-AFFILIATES OF
RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH
OTHER APPLICABLE LAWS. THE HOLDER MUST FURNISH TO THE COMPANY AND THE WARRANT
AGENT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E)
ABOVE, AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THE LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
