COMMON STOCK WARRANT AGREEMENT
dated as of July 9, 1998
between
FIRST SECURITY CORPORATION
and
FIRST SECURITY BANK, N. A., as Warrant Agent
Common Stock Warrants
Expiring ________________, ____
TABLE OF CONTENTS
Page
----
ARTICLE I
---------
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants........................................... 2
SECTION 1.02 Form, Execution and Delivery of Warrant Certificates........... 2
SECTION 1.03 Transfer of Warrants........................................... 4
SECTION 1.04 Lost, Stolen, Mutilated or Destroyed Warrant Certificates...... 5
SECTION 1.05 Cancellation of Warrant Certificates........................... 6
SECTION 1.06 Treatment of Holders [IF WARRANTS ARE TO BE ISSUED IN BOOK-
ENTRY FORM: and Beneficial Owners] of Warrant Certificates................. 6
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Exercise Price................................................. 7
SECTION 2.02 Duration of
Warrants.................................................................... 7
SECTION 2.03 Exercise of Warrants........................................... 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry form:
AND BENEFICIAL OWNERS OF WARRANTS
SECTION 3.01 No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates............................................ 10
SECTION 3.02 Holder [If Warrants are to be issued in Book-Entry form: and
Beneficial Owner] of Warrant May Enforce Rights............................. 10
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01 Warrant Agent.................................................. 10
SECTION 4.02 Limitations on Warrant Agent's Obligations..................... 11
SECTION 4.03 Compliance With Applicable Laws................................ 12
SECTION 4.04 Resignation and Appointment of Successor....................... 12
i
ARTICLE V
MISCELLANEOUS
SECTION 5.02 Amendments............................................ 11
SECTION 5.02 Merger, Consolidation, Sale, Transfer or Conveyance... 11
SECTION 5.03 Notices and Demands to the Company and Warrant Agent.. 11
SECTION 5.04 Addresses............................................. 11
SECTION 5.05 GOVERNING LAW......................................... 11
SECTION 5.06 Delivery of Prospectus................................ 11
SECTION 5.07 Obtaining of Governmental Approvals................... 11
SECTION 5.08 Payment of Taxes...................................... 11
SECTION 5.09 Benefits of Warrant Agreement......................... 11
SECTION 5.10 Headings.............................................. 11
SECTION 5.11 Severability.......................................... 11
SECTION 5.12 Counterparts.......................................... 11
SECTION 5.13 Inspection of Agreement............................... 11
ii
COMMON STOCK WARRANT AGREEMENT
COMMON STOCK WARRANT AGREEMENT, dated as of July 9, 1998 (as modified,
amended or supplemented, this "Agreement"), between FIRST SECURITY CORPORATION,
a Delaware corporation (the "Company") and FIRST SECURITY BANK, a national bank,
as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
(If Securities and Warrants are to be offered together: WHEREAS, the
Company proposes to sell [title of Securities being Offered] (the "Offered
Securities") together with warrants (each, a "Warrant") representing the right
to purchase [title of Securities purchasable upon exercise of Warrants] [If
Warrants for Depositary Shares are to be offered, each representing a 1/___th
interest in a share of [title of securities represented by Depositary Shares]]
(the "Warrant Securities" [If Warrants for Depositary Shares are to be offered:
, which term shall also refer, as appropriate, to such [title of securities
represented by Depositary Shares]), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and]
(If offer consists of Warrants alone: WHEREAS, the Company proposes to
sell warrant certificates evidencing one or more warrants (each, a "Warrant")
representing the right to purchase [title of Securities purchasable upon
exercise of Warrants] [If Warrants for Depositary Shares are to be offered: each
representing a 1/____th interest in a share of [title of securities represented
by the Depositary Shares]] (the "Warrant securities" [If Warrants for Depositary
Shares are to be offered: , which term shall also refer, as appropriate, to such
[title of securities represented by the Depositary Shares]), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants. Each Warrant shall represent
------------ --------------------
the right subject to the provisions contained herein and therein, to purchase
[______] Warrant Securities [in the aggregate principal amount of $______] at
the Exercise Price set forth in Section 2.01. [If Securities and Warrants are to
be offered together: Warrants shall be issued in units with the Offered
Securities [If Warrants are not immediately detachable: and shall not be
separately transferable [Unless Warrants are not detachable: before ___________,
____ (the "Detachment Date")]].] [If Warrants are to be offered separate:
Warrants shall be issued as a separate security and shall be transferable from
and after the date of issuance.' [If Warrants are to be offered in Book-Entry
form: [All] [A portion] of the Warrants shall initially be represented by one or
more global certificates (each, a "Global Warrant Certificate").] [If Securities
and Warrants are to be offered together and in definitive form: Each Warrant
Certificate included in such a unit shall evidence [______] Warrants for each
[$______ principal amount of] [______] Offered Securities included in such
unit.} [If Warrants are to be offered separately and in definitive form: Each
Warrant Certificate shall evidence [_______] Warrants.]
SECTION 1.02 Form, Execution and Delivery of Warrant Certificates.
------------ ----------------------------------------------------
(a) One or more Warrant Certificate evidencing Warrants to purchase
not more than [______] [$______ in aggregate principal amount of] Warrant
Securities (except as provided in Sections 1.03, 1.04 and 2.03(e) 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.
(b) Each Warrant Certificate, whenever issued, shall be in
registered form substantially in the form set forth in Exhibit A hereto, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement. [If Warrants are issued in Book-
Entry form: Each Global Warrant Certificate shall bear such legend or legends as
may be required by the Depository in order for it to accept the Warrants for its
book-entry settlement system.] Each Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or on steel engraved borders or
otherwise reproduced in any other manner as may be approved by the officers
executing the same (such be conclusive evidence of such approval) and may have
such letters, number or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (such execution to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any regulation of any
stock exchange on which the Warrants [If Securities and Warrants are to be
offered together: , the Offered Securities] or the Warrant Securities may be
listed, or to conform to usage. Each Warrant Certificate shall be signed on
behalf of the Company by its Chief
2
Executive Officer, President or any Executive or Senior Vice President. The
signature of any such officer on any Warrant Certificate may be manual or
facsimile. Each Warrant Certificate, when so signed on behalf of the Company,
shall be delivered to the Warrant Agent together with an order for the
countersignature and delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate
duly executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order o the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) 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 may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
(e) If any officer of the Company who has signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before such Warrant Certificate shall have been countersigned and
delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company as specified in this Section 1.02, regardless of whether
at the date of the execution of this Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry
form: , except as stated below with respect to Warrants evidenced by a global
Warrant Certificate,] be entitled to receive Warrants in physical, certificated
form.
[If Warrants are to be issued in Book-Entry form: (g) A Global Warrant
Certificate may be exchanged for a new Global Warrant Certificate, or one or
more new global Warrant Certificates may be issued, to reflect the issuance by
the Company of additional Warrants. To effect such an exchange, the Company
shall deliver to the Warrant Agent one or more new Global Warrant Certificates
duly executed on behalf of the Company as provided in Section 1.02. The Warrant
Agent shall authenticate each new Global Warrant Certificate as provided in
Section 1.02 and shall deliver each new Global Warrant Certificate to the
Depository. The Warrant Agent shall cancel each Global Warrant Certificate
delivered to it by the Depository in exchange therefor, if any.]
SECTION 1.03 Transfer of Warrants.
--------------------
[If Warrants are to be issued in Book-Entry form: (a) [All] [A portion] of
the Warrants shall initially be represented by one or more Global Warrant
Certificates deposited with [the
3
Depository Trust Company] (the "Depository") and registered in the name of [Cede
& Co.], a nominee of the Depository. The Depository, or such other entity as is
agreed to by the Depository, may hold each Global Warrant Certificate as
custodian for Depository. Except as provided for in Section 1.03(b) hereof, no
person acquiring Warrants traded on any securities exchange with book-entry
settlement through the Depository shall receive or be entitled to receive
physical delivery of definitive Warrant Certificates evidencing such Warrants.
Ownership of beneficial interests in the Warrants shall be shown on, and the
transfer of such ownership shall be effected through, records maintained by (i)
the Depository or its nominee for each Global Warrant Certificate, or (ii)
institutions that have accounts with the Depository (such institution, with
respect to a Warrant in its account, a "Participant").]
[If Warrants are to be issued in Book-Entry form: (b) If the Depository
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the receipts are not
eligible for, or it is no longer necessary to have the Warrants available in,
book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent for cancellation each Global Warrant
Certificate, and the Company shall instruct the Warrant Agent to deliver to the
Depository definitive Warrant Certificates in physical form evidencing such
Warrants. Such definitive Warrant Certificates shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
provided above.]
[If Securities and Warrants are to be offered together: (c) [If Warrants
are not immediately detachable: Prior to the Detachment Date,] Warrants may be
transferred or exchanged only together with the Offered Security to which such
Warrant is attached, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Offered Security. Furthermore, [If
Warrants are not immediately detachable: on or prior to the Detachment Date,]
each transfer of an Offered Security on the register relating to such Offered
Securities shall operate also to transfer the Warrants to which such Offered
Security was initially attached. [If Warrants are not immediately detachable:
From and after the Detachment Date, the above provisions shall be of no further
force and effect.]
(d) A Warrant Certificate may be transferred at the option of the
Holder thereof upon surrender of such Warrant Certificate at the corporate trust
office of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent {If Warrants are to be issued
in Book-Entry form: ; provided, however, that except as otherwise provided
herein or in any Global Warrant Certificate, each Global Warrant Certificate may
be transferred only in whole and only to the Depository, to another nominee of
the Depository, to a successor depository, or to a nominee of a successor
depository]. Upon any such registration of transfer, the Company shall execute,
and the Warrant Agent shall countersign and deliver, as provided in Section
1.02, in the name of the designated transferee a new Warrant Certificate or
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants.
4
(e) [If Warrants are not immediately detachable: After the Detachment
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
(f) The Warrant Agent shall keep, at its corporate trust office, books
in which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange 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 may be imposed in
connection with any such transfer or exchange.
SECTION 1.04 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
------------ ---------------------------------------------------------
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity satisfactory to them and, in the case of
mutilation, upon surrender of such Warrant Certificate to the Warrant Agent for
cancellation, 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 an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. No service charge shall be
made for any replacement of Warrant Certificates, but the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange. To
the extent permitted under applicable law, the provisions of this Section 1.04
are exclusive with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates and shall preclude any and all other rights or
remedies.
SECTION 1.05 Cancellation of Warrant Certificates. Any Warrant
------------ ------------------------------------
Certificate surrendered to the Warrant Agent for transfer, exchange or exercise
of the Warrants evidenced thereby shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu
5
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner satisfactory to
the Company. Any Warrant Certificate surrendered to the Company for transfer,
exchange or exercise of the Warrants evidenced thereby shall be promptly
delivered to the Warrant Agent and such transfer, exchange or exercise shall not
be effective until such Warrant Certificate has been received by the Warrant
Agent.
SECTION 1.06 Treatment of Holders [IF WARRANTS ARE TO BE ISSUED IN
-----------------------------------------------------
BOOK-ENTRY FORM: and Beneficial Owners] of Warrant Certificates.
----------------------------------------------------------------
(a) The term "Holder", as used herein, shall mean any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose [If Securities and Warrants
that are not immediately detachable are offered: or, prior to the Detachment
Date, the person in whose name the Offered Security to which such Warrant
Certificate was initially attached is registered upon the register relating to
such Offered Securities. At all times prior to the Detachment Date, the Company
will, or will cause the registrar of the Offered Securities to, make available
to the Warrant Agent such information as to holders of the Offered Securities as
may be necessary to keep the Warrant Agent's records current]. [If Warrants are
to be issued in Book-Entry form: the Holder of each Global Warrant Certificate
shall initially be [Cede & Co.], a nominee of the Depository.]
[If Warrants are to be issued in Book-Entry Form: (b) The term "Beneficial
Owner" as used herein shall mean any person in whose name ownership of
beneficial interests in Warrants evidenced by a Global Warrant Certificate is
recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Securities and Warrants that are not immediately detachable are
offered: , or, prior to the Detachment Date, the person in whose name the
Offered Security to which such Warrant Certificate was initially attached is
registered upon the register relating to such Offered Securities].]
( ) Every Holder [If Warrants are to be issued in Book-Entry form: and
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book-Entry
form: and Beneficial Owner] that until the Warrant Certificate is transferred
on the books of the Warrant Agent, the Company and the Warrant Agent may treat
the registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
6
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Exercise Price. The exercise price of each Warrant
--------------
shall be $______ (the "Exercise Price") [modify as appropriate to reflect terms
of offered Warrants].
SECTION 2.02 Duration of Warrants. [Subject to the limitations set
---------------------
forth herein,] Each Warrant may be exercised in whole but not in part [Unless
Warrants may be exercised on only one date: on any Business Day (as defined
below) occurring during the period (the "Exercise Period") commencing on [its
date of issuance] [________, _____] and ending at 5:00 P.M., New York time,] on
_________, _____ (the "Expiration Date"). Each Warrant remaining unexercised
after 5:00 P.M., New York time, on the Expiration Date shall become void, and
all rights of the Holder under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York and North Carolina.
SECTION 2.03 Exercise of Warrants.
--------------------
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to the Warrant Agent at its
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form: and, in the
case of a Global Warrant Certificate, the Warrants to be exercised (the "Book-
Entry Warrants") free on the records of the Depository to an account of the
Warrant Agent at the Depository designated for such purpose in writing by the
Warrant Agent to the Depository from time to time,] (ii) an election to purchase
the Warrant Securities ("Election to Purchase"), properly completed and executed
by the Holder on the reverse of the Warrant Certificate [If Warrants are to be
issued in Book-Entry form: or, in the case of a Global Warrant Certificate,
properly executed by the Participant and substantially in the form included on
the reverse of each Warrant Certificate,] and (iii) the Exercise Price for each
Warrant to be exercised in lawful money of the United States of America by
certified or official bank check or by bank wire transfer in immediately
available funds. If any of (a) the Warrant Certificate [If Warrants are to be
issued in Book-Entry form: or the Book-Entry Warrants,] (b) the Election to
Purchase, or (c) the Exercise Price therefor is received by the Warrant Agent
after 5:00 P.M., New York time, on [Unless Warrants may be exercised on only one
date: the specified Exercise Date, the Warrants will be deemed to be received
and exercised on the Business Day next succeeding the Exercise Date. If the date
specified as the Exercise Date is not a Business Day, the Warrants will be
deemed to be received and exercised on the next succeeding day which is a
Business Day. If the Warrants are received or deemed to be received after] the
Expiration Date, the exercise thereof will be null and void and any funds
delivered to the Warrant Agent will be returned to the Holder [If Warrants are
to be issued in Book-Entry form: or Participant, as the case may be,] as soon as
practicable. In no
7
event will interest accrue on funds deposited with the Warrant Agent in respect
of an exercise or attempted exercise of Warrants. The validity of any exercise
of Warrants will be determined by the Warrant Agent in its sole discretion and
such determination will be final and binding upon the Holder and the Company.
Neither the Company nor the Warrant Agent shall have any obligation to inform a
Holder of the invalidity of any exercise of Warrants. The Warrant Agent shall
deposit all funds received by it in payment of the Exercise Price in the account
of the company maintained with the Warrant Agent for such purpose and shall
advise the Company by telephone at the end of each day on which funds for the
exercise of the Warrants are received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephonic advice to the Company
in writing.
(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day
following the [Unless Warrants may be exercised on only one date: Exercise Date
of any Warrant] [If Warrants may be exercised on only one date: Expiration
Date], advise the Company and the [Trustee under the Indenture applicable to]
[the transfer agent and registrar in respect of] the Warrant Securities issuable
upon such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
Warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
to be issued in Book-Entry form: or one or more Global Warrant Certificates, as
appropriate,] evidencing the balance, if any, of the Warrants remaining after
such exercise, and such other information as the Company or such [Trustee]
[transfer agent and registrar] shall reasonable require.
(c) The Company shall, by 5:00 P.M., New York time, on the third
Business Day next succeeding the [Unless Warrants may be exercised on only one
date: Exercise Date of any Warrant] [If Warrants may be exercised on only one
date: Expiration Date], execute, issue and deliver to the Warrant Agent,
[pursuant to the Indenture applicable to the Warrant Securities, the Warrant
Securities, duly authenticated by the Trustee of such Indenture and in
authorized denominations] [the Warrant Securities] to which such Holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such Holder [If Warrants are to be issued in Book-Entry form: or the
Participant, as the case may be]. Upon receipt of such Warrant Securities, the
Warrant Agent shall, by 5:00 P.M., new York time, on the fifth business Day next
succeeding [Unless Warrants may be exercised on only one date: such Exercise
Date] [If Warrants may be exercised on only one date: the Expiration Date],
transmit such Warrant Securities, to or upon the order of the Holder [If
warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] together with, or preceded by the prospectus referred to in Section 5.06
hereof. The company agrees that it will provide such information and documents
to the Warrant Agent as may be necessary for the Warrant Agent to fulfill its
obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [articles of amendment] and such Warrant
Securities. From and after the issuance of such Warrant Securities, the former
Holder of the Warrants exercised will be entitled to the
8
benefits of the [Indenture] [articles of amendment] under which such Warrant
Securities are issued and such former Holder's right to receive payments of
[principal of (and premium, if any) and interest, if any, on] [dividends and any
other amounts payable in respect of] the Warrant Securities shall be governed
by, and shall be subject to, the terms and provisions of such [Indenture]
[articles of amendment] and the Warrant Securities.
(e) Warrants may be exercised only in whole numbers of Warrants.
[Unless Warrants may be exercised on only one date: If fewer than all of the
Warrants evidenced by a Warrant Certificate are exercised, a new Warrant
Certificate for the number of Warrants remaining unexercised shall be executed
by the Company and countersigned by the Warrant Agent as provided in Section
1.02 hereof, an delivered to the Holder at the address specified on the books of
the Warrant Agent or as otherwise specified by such Holder.]
(f) 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 issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered: .SECTION 2.04. Adjustment
----------
Under Certain Circumstances. The Exercise Price and the number of Warrant
---------------------------
Securities purchasable upon the exercise of each Warrant shall be subject to
adjustment upon (i) the issuance of a stock dividend to the holders of the
outstanding shares of Warrant Securities or a combination, subdivision or
reclassification of the Warrant Securities; (ii) the issuance of rights,
warrants or options to all holders of the Warrant Securities entitling the
holders thereof to purchase Warrant Securities for an aggregate consideration
per share less than the current market price per share of the Warrant
Securities; or (iii) any distribution by the Company to the holders of the
Warrant Securities of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value of
any fractional shares otherwise issuable. The adjustments to be made under this
Section 2.03 shall be determined by the Warrant Agent and such determination
shall be final and binding upon the Holders and the Company.]
9
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry form:
AND BENEFICIAL OWNERS OF WARRANTS
SECTION 3.01 No Rights as Holders of Warrant Securities 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 holder of any
Warrant Securities, including, without limitation, the right to receive
dividends, if any, or payments upon the liquidation, dissolution or winding up
of the Company or to exercise voting rights if any.
SECTION 3.02 Holder [If Warrants are to be issued in Book-Entry form: and
Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any Holder [If Warrants are to be issued in Book-
Entry form: and any Beneficial Owner] of any Warrant, without the consent of the
Warrant Agent or the Holder of any warrant, may, on such Holder's [If Warrants
are to be issued in Book-Entry form: or Beneficial owner's] own behalf and for
his own benefit, enforce, and may institute and maintain any suit, actin or
proceeding against the Company to enforce, or otherwise in respect of, such
Holder's [If Warrants are to be issued in Book-Entry form: or Beneficial
Owner's] right to exercise the Warrants evidenced by any Warrant Certificate in
the manner provided in this Agreement and such Warrant Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01 Warrant Agent. The Company hereby appoints [Name of
------------ -------------
Warrant Agent] as Warrant Agent of the Company in respect of the Warrants upon
the terms and subject to the conditions herein set forth, and [Name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further power
sand authority to act on behalf of the Company as the Company may hereafter
grant to or confer upon it.
SECTION 4.02 Limitations on Warrant Agent's Obligations'. The Warrant
------------ -------------------------------------------
Agent accepts its obligation 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 shall be subject.
(a) Compensation and Indemnification. The Company agrees to pay the
--- --------------------------------
Warrant Agent compensation to be agreed upon with the Company for all services
rendered by
10
the Warrant Agent and to reimburse the Warrant Agent for all reasonable out-of-
pocket expenses(including reasonable counsel fees) incurred by the Warrant Agent
in connection with the services rendered by it hereunder. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, bad faith or breach of
this Agreement on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant Agent
--- ---------------------
under this Agreement, the Warrant Agent is acting solely as agent of the Company
and does not assume any obligation or relationship of agency or trust with any
of the owners or holders of the Warrants except as expressly set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
--- -------
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or committed by it hereunder in good faith and in accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
--- ---------
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be genuine and to have
been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--- --------------------
directors and employees, may become the owner of, or acquire any interest in,
any Warrant, with the same rights that it or they would have were it not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as a depositary, trustee or agent for, any committee
or body of holders of Warrants [If Securities and Warrants are being offered
together: , Offered Securities] or Warrant Securities, or other securities or
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under any
--- -------------------------
liability for interest on any monies at any time received by its pursuant to any
of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
--- ---------------------------
any responsibility with respect to the validity or sufficiency of this Agreement
or the execution and delivery hereof (except the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution of the
Warrant Certificates (except its countersignature thereon).
(h) No Responsibility for Recitals. The recitals contained herein and
--- ------------------------------
in the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon) shall be taken as
11
the statements of the Company and the Warrant Agent assumes no responsibility
hereby for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
--- ----------------------
perform such duties as are specifically set forth herein and no implied duties
or obligations shall be read into this Agreement 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 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 Warrant Certificate authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the application
by the Company of the proceeds of the issue and sale, or exercise, of the
Warrants. 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 any Warrant Certificate or in the case of the receipt of
any written demand from a Holder 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 5.03 hereof, to make any demand upon the Company.
SECTION 4.03 Compliance With Applicable Laws. The Warrant Agent agrees
------------ -------------------------------
to comply with all applicable federal and state laws imposing obligations on it
in respect of the services rendered by it under this Agreement and in connection
with the Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04 Resignation and Appointment of Successor.
------------ ----------------------------------------
(a) The Company agrees, for the benefit of the Holders from time to
time, that there hall at all times be a Warrant Agent hereunder until all the
Warrants issued hereunder have been exercised or have expired in accordance with
their terms, which Warrant Agent shall be a bank or trust company organized
under the laws of the United States of America or one of the states thereof,
which is authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers, has a combined capital and surplus of at least
$50,000,000 and has an office or an agent's office in the United States of
America.
(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 such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent at
any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect
12
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company qualified as set forth in
Section 4.04(a)) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 4.02(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to
be qualified as set forth in Section 4.04(a), or shall be removed, or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or
shall file a petition seeking relief under any applicable Federal or State
bankruptcy or insolvency law or similar law, or make an assignment for the
benefit of it creditors or consent to the appointment of a receiver, conservator
or custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or to meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of any applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as set forth
in Section 4.04(a), shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as herein
provided of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be Warrant Agent
under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, 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 obligation of such
predecessor with like effect as if originally named as Warrant Agent under this
Agreement, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, in each case provided that it shall be
qualified as set forth in Section 4.04(a), 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 to this Agreement, including, without
limitation, any successor to the Warrant Agent first named above.
13
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Amendments.
----------
(a) This Agreement and any Warrant Certificate may be amended by the
parties hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the Holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form: (iv) evidencing and
providing for the acceptance of appointment by a successor Depository with
respect to each Global Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenant of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, or (vii)
amending this Agreement and the Warrants in any manner that the Company may deem
to be necessary or desirable and that will not adversely affect the interests of
the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement and the
Warrants by executing a Supplemental Agreement with the consent of the Holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders under this Agreement; provided, however, that,
without the consent of each Holder of Warrants affected thereby, no such
amendment may be made that (i) changes the Warrants so as to reduce the
[principal amount] [number] of Warrant Securities purchasable upon exercise of
the Warrants or so as to increase the exercise price [If Warrants for Common
Stock are offered: (other than as provided by Section 2.03)], (ii) shortens the
period of time during which the Warrants may be exercised, (iii) otherwise
adversely affects the exercise rights of the Holders in any material respect, or
(iv) reduces the number of unexercised Warrants the consent of the Holders of
which is required for amendment of this Agreement or the Warrants.
SECTION 5.02 Merger, Consolidation, Sale, Transfer or Conveyance. The
---------------------------------------------------
company may consolidate or merge with or into any other corporation or sell,
lease, transfer or convey all or substantially all of the assets to any other
corporation, provided that (i) either (x) the company is the continuing
corporation or (y) the corporation (if other than the Company) that is formed by
or results from any such consolidation or merger or that receives such assets is
a corporation organized and existing under the laws of the United States of
America or a state thereof and such
14
corporation assumes the obligations of the Company with respect to the
performance and observance of all of the covenants and conditions of this
Agreement to be performed or observed by the company and (ii) the Company or
such successor corporation, as the case may be, must not immediately be in
default under this Agreement. If at any time there shall be any consolidation or
merger or any sale, lease, transfer, conveyance or other disposition of all or
substantially all of the assets of the Company, then in any such event the
successor assuming corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein and in the Warrant
Certificates as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and, in the event of any
such sale, lease, transfer, conveyance (other than by way of lease) or other
disposition, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, Warrant Certificates evidencing the Warrants
not theretofore exercised, in exchange and substitution for the Warrant
Certificates theretofore issued. Such Warrant Certificates shall in all respects
have the same legal rank and benefit under this Agreement as the Warrant
Certificates evidencing the Warrants theretofore issued in accordance with the
terms of this Agreement as though such new warrant Certificates had been issued
at the date of the execution hereof. In any case of any such merger or
consolidation or sale, lease, transfer, conveyance or other disposition of all
or substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Warrant certificates, as
may be appropriate.
SECTION 5.03 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 [If Warrants are to be issued in book-entry forms: or a Participant,
as the case may be], the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 5.04 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 First Security Corporation, ββ βββββ ββββ
ββββββ, ββββ ββββ ββββ, ββββ βββββ, Attention: Executive Vice President and
General Counsel (or such other address as shall be specified in writing by the
Warrant Agent or by the Company as the case may be). The company or the Warrant
Agent shall give notice to the Holders of Warrants by mailing written notice by
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the books and records of the Warrant Agent [or, prior to the
Detachment Date, on the register of the Offered Securities].
SECTION 5.05 GOVERNING LAW.. THIS AGREEMENT AND EACH WARRANT
--------------
CERTIFICATE AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
15
SECTION 5.06 Delivery of Prospectus.. The company shall furnish to the
-----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
shall deliver a Prospectus to the Holder of such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07 Obtaining of Governmental Approvals.. The Company shall
------------------------------------
from time to time take all actin which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
state laws, which the Company may deem necessary or appropriate in connection
with the issuance, sale, transfer and delivery of the Warrants, the exercise of
the Warrants, the issuance, sale, transfer and delivery of the Warrant
Securities to be issued upon exercise of Warrants or upon the expiration of the
period during which the Warrants are exercisable.
SECTION 5.08 Payment of Taxes.. The Company will pay all stamp and
-----------------
other duties, if any, to which, under the laws of the United Sates of America,
this Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09 Benefits of Warrant Agreement.. Nothing in this Agreement
------------------------------
or any Warrant Certificate expressed or implied and nothing that may be inferred
from any of the provisions hereof or thereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and their respective successors and assigns, [If Warrants ere
to be issued in book-entry form: the Beneficial Owners] and the Holders any
right, remedy or claim under or by reason of this Agreement or any Warrant
Certificate or of any covenant, condition, stipulation, promise or agreement
hereof or thereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement or any Warrant Certificate shall be for
the sole and exclusive benefit of the company and the Warrant Agent and their
respective successors and assigns and of the [If Warrants are to be issued in
Book-Entry form: Beneficial Owners and] Holders.
SECTION 5.10 Headings.. The descriptive headings of the several
----------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 5.11 Severability.. If any provision in this Agreement or in an
-------------
Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions I any other jurisdiction, shall not in any way
be affected or impaired thereby.
SECTION 5.12 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
16
shall together constitute but one and the same instrument.
SECTION 5.13 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 the office of the Company at ββ βββββ ββββ ββββββ, ββββ
ββββ ββββ, ββββ βββββ, for inspection by any Holder. The Warrant Agent may
require any such Holder to submit satisfactory proof of ownership for inspection
by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FIRST SECURITY CORPORATION
By: _______________________________
Authorized Officer
FIRST SECURITY BANK N. A.
By: _______________________________
Authorized Officer
17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately
detachable or Warrants that are not immediately exercisable are offered: [PRIOR
TO ________________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [TITLE OF OFFERED SECURITY] AND (ii) ] CANNOT BE
EXERCISED IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[title of Warrant Securities]
as described herein.
FIRST SECURITY CORPORATION
No. _____________ CUSIP No. ____________
VOID AFTER [5:00 P.M>], NEW YORK TIME, ON _________ __, _____
This certifies that _______________________ or registered assigns is the
registered holder of [Insert number initially issued] warrants to purchase
certain securities (the "warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from First Security Corporation, a Delaware corporation
(the "Company"), [$______________ principal amount] [________] of the Company's
[title of Securities purchasable upon exercise of Warrants] [If Warrants for
Depositary shares are to be offered: , each representing a 1/__th interest in a
share of [title of securities represented by the Depositary Shares]] (the
"Warrant Securities" [If Warrants for Depositary shares are to be offered: ,
which term shall also refer, as appropriate, to such [title of securities
represented by the Depositary Shares]), [issued or to be issued under the
indenture (as hereinafter defined)], at the Exercise price set forth below. The
exercise price of each Warrant (the "Exercise Price") shall be [modify as
appropriate to reflect the terms of the offered Warrants].
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, [Unless Warrants may be exercised on only one date: on any business Day
(as defined below) occurring during the period
A-1
(the "Exercise Period") commencing on [the date of issuance thereof]
[___________ ___, ____] and ending at 5:00 P.M., New York time,] on
_______________ ___, _____ (the "Expiration Date"). Each Warrant remaining
unexercised after 5:00 P.M., New York time, on the Expiration Date shall become
void, and all rights of the holder of this Warrant Certificate evidencing such
Warrant shall cease.
The holder of the Warrants represented by this Warrant Certificate may
exercise any Warrant evidence hereby by delivering, not later than 5:00 P.M.,
New York time, on [Unless warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] {If Warrants may
be exercised on only one date: The Expiration date] to [name of Warrant Agent]
(the "Warrant Agent", which term includes any successor warrant agent under the
Warrant Agreement described below) at its corporate trust department at
_______________, (i) this Warrant Certificate [For global Warrant Certificate:
and the Warrants to be exercised (the "Book-Entry Warrants") free on the records
of [The Depository Trust company] (the "Depository") to an account of the
warrant Agent at the Depository designated for such purpose in writing by the
Warrant Agent to the Depository], (ii) an election to purchase ("election to
Purchase"), [For definitive Warrant Certificates: properly executed by the
holder hereof on the reverse of this Warrant Certificate] [For global Warrant
Certificates: properly executed by the institution in whose account the warrant
is recorded on the records of the Depository (the "Participant"), and
substantially I the form included on the reverse of therefor] and (iii) the
Exercise Price for each Warrant to be exercised in lawful money of the United
States of America by certified or official bank check or by bank wire transfer
in immediately available funds. If any of (a) this Warrant Certificate [for
global Warrant Certificates: or the Book-entry Warrants], (b) the Election to
Purchase, or (c) the Exercise Price therefor, is received by the Warrant Agent
after 5:00 P.M., New York time, on [Unless Warrants may be exercised on only one
date: the specified Exercise Date, the Warrants will be deemed to be received
and exercised on the Business Day next succeeding the Exercise Date. If the
date specified as the Exercise Date is not a Business Day, the warrants will be
deemed to be received and exercised on the next succeeding day which is a
business Day. If the warrants to be exercised are received or deemed to be
received after] the Expiration Date, the exercise thereof will be null and void
and any funds delivered to the Warrant Agent will be returned to the holder as
soon as practicable. In no event will interest accrue on funds deposited with
the Warrant Agent in respect of an exercise or attempted exercise of Warrants.
The Validity of any exercise of Warrants will be determined by he Warrant Agent
in its sole discretion and such determination will be final and binding upon the
holder of the Warrants and the Company. Neither the Warrant agent nor the
company shall have any obligation to inform a holder of Warrants of the
invalidity of any exercise of Warrants. As used herein, the term "Business day"
means any date which is not a Saturday or Sunday and is not a legal holiday or a
day on which banking institutions generally are authorized or obligated by law
or regulation to close in ________________________.
Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by this Warrant Certificate are exercised, a new Warrant Certificate
for the number of Warrants remaining unexercised shall be executed by the
company and countersigned by the Warrant Agent as
A-2
provided in Section 1.02 of the Warrant Agreement, and delivered to the holder
of this Warrant Certificate at the address specified on the books of the Warrant
Agent or as otherwise specified by such registered holder.]
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 [For global Warrant
Certificate: and the beneficial owners of the Warrants represented by this
Warrant Certificate] consent[s] by acceptance hereof. Copies of the Warrant
Agreement are on file and can be inspected at the above-mentioned office of the
Warrant Agent and at the office of the Company at ββ βββββ ββββ ββββββ, ββββ
ββββ ββββ, ββββ βββββ.
[If Warrants for Common Stock are offered: the Exercise Price and the number of
Warrant Securities purchasable upon the exercise of each Warrant shall be
subject to adjustment upon (i) the issuance of a stock dividend to the holders
of the outstanding shares of Warrant Securities or a combination, subdivision or
reclassification of the Warrant Securities; (ii) the issuance of rights,
warrants or options to all holders of the Warrant Securities entitling the
holders thereof to purchase Warrant Securities for an aggregate consideration
per share less than the current market price per share of the Warrant
Securities; or (iii) any distribution by the Company to the holders of the
Warrant Securities of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value of
any fractional shares otherwise issuable. The adjustments to be made under this
section 2.03 shall be determined by the Warrant Agent and such determination
shall be final and binding upon the holders of the Warrants and the Company.]
[If Securities and Warrants are to be offered together: [If Warrants
are not immediately detachable: Prior to the Detachment date,] The Warrants
represented by this Warrant Certificate may be exchanged or transferred only
together with the [title of Offered Security] (the ""Offered Security") to which
the Warrants are attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, [If Warrants are not immediately detachable: on or prior to the
Detachment Date,] each transfer of such Offered Security on the register of the
Offered Securities shall operate also to transfer the Warrants to which such
Offered Securities was initially attached. [If Warrants are not immediately
detachable: From and after the Detachment Date, the above provisions shall be
of no further force and effect.]] Upon due presentment for registration of
transfer or exchange of this Warrant Certificate at the corporate trust office
of the warrant Agent, the company shall execute, and the Warrant Agent shall
countersign and deliver, as provided in Section 1.02 of the Warrant Agreement,
in the name of the designated transferee one or more new Warrant Certificates of
any authorized
A-3
denomination evidencing in he aggregate a like number of unexercised Warrants,
subject to the limitations provided in the Warrant Agreement.
Neither this Warrant Certificate nor the warrants evidenced hereby
shall entitle the holder hereof or thereof to any of the rights of a holder of
the Warrant Securities, including, without limitation, the right to receive
dividends, if any, or payment upon the liquidation, dissolution or winding up of
the Company or to exercise voting rights, if any.
The warrant Agreement and this Warrant Certificate may be amended as
provided in the Warrant Agreement including, under certain circumstances
described therein, without the consent of the holder of this Warrant Certificate
or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE
WARRANT AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant agent.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated as of ______________ ___, ____
FIRST SECURITY CORPORATION
By: - FORM ONLY -
-------------------------------
Authorized officer
FIRST SECURITY BANK, N. A.
as Warrant Agent
By: - FORM ONLY -
---------------------------------
Authorized Officer
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[REVERSE]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder [For global
Warrant Certificate: or Participant] must, by 5:00 P.M., New York time, on the
specified Exercise Date, deliver to the Warrant Agent at its corporate trust
department, a certified or official bank check or a wire transfer in immediately
available funds, in each cash payable to the Warrant Agent at Account No. ____,
in an amount equal to the Exercise Price in full for the Warrants exercised. In
addition, the Warrant holder [For Global Warrant Certificates: or Participant]
must provide the information required below and deliver this Warrant Certificate
to the Warrant Agent at the address set forth below [For Global Warrant
Certificates: and the Book-Entry Warrants to the Warrant Agent in its account
with the Depository designated for such purpose]. This Warrant Certificate and
the Election to Purchase must be received by the Warrant Agent by 5:00 P.M., New
York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on
____________, ____ (the "Exercise Date"), _____________ Warrants, evidenced by
this Warrant Certificate, to purchase, [$______________ principal amount]
[_______________] of the [title of Securities purchasable upon exercise of
Warrants] [If Warrants for Depositary Shares are to be offered, each
representing a 1/__th interest in a share of [title of securities represented by
the Depositary Shares]] (the "Warrant Securities") of First Security
Corporation, a Delaware corporation (the "Company"), and represents that on or
before the Exercise Date such holder has tendered payment for such Warrant
Securities by certified or official bank check or bank wire transfer in
immediately available funds to the order of the Company c/o [Name and address of
Warrant Agent], in the amount of $_____________ in accordance with the terms
hereof. The undersigned requests that said [principal amount of] [number of]
Warrant Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
[Unless Warrants may be exercised on only one date: If said [principal
amount] [number] of Warrant Securities is less than all of the Warrant
Securities purchasable hereunder, the undersigned requests that a new Warrant
Certificate evidencing the remaining balance of the Warrants evidenced hereby be
issued and delivered to the holder of the Warrant Certificate unless otherwise
specified in the instructions below.]
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Dated:______________________
Name__________________________________
___________________
(Please Print
(Insert Social Security or Other Identifying
Number of Holder)
Address_____________________
_________________________________
Signature________________________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
the exercising holder and the delivery of this Warrant Certificate will be
deemed to be made only when actually received by the Warrant Agent. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
Name in which Warrant Securities are to be registered if other than in the name
of the registered holder of this Warrant
Certificate:______________________________________________
Address to which Warrant Securities are to be mailed if other than to the
address of the registered holder of this Warrant Certificate as shown on the
books of the Warrant Agent:
_____________________________________
(Street Address)
_____________________________________
(City and State) (Zip Code)
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(Except for Global Warrant
Certificate: Name in which Warrant
Certificate evidencing unexercised
Warrants, if any, are to be registered
if other than in the name of the
registered holder of this Warrant
Certificate:
_____________________________________
Address to which certificate representing unexercised Warrants, if any, are to
be mailed if other than to the address of the registered holder of this Warrant
Certificate as shown on the books of the Warrant Agent:
_____________________________________
(Street Address)
_____________________________________
(City and State) (Zip Code)
Dated:______________________
____________________________________
Signature
([Except for Global Warrant Certificate: Signature
must conform in all respects to the name of the
holder as specified on the face of this Warrant
Certificate.] If Warrant Securities, or a Warrant
Certificate evidencing unexercised Warrants, are
to be issued in a name other than that of the
registered holder hereof or are to be delivered to
an address other than the address of such holder
as shown on the books of the Warrant Agent, the
above signature must be guaranteed by a member
firm of a registered national stock exchange, a
member of the National Association of Securities
Dealers, Inc., a participant in the Security
Transfer Agents Medallion Program or the Stock
Exchange Medallion Program, or by a commercial
bank or trust company having an office or
correspondent in the United States.
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SIGNATURE GUARANTEE
Name of Firm______________________
Address___________________________
Area Code
And Number_______________________
Authorized
Signature__________________________
Name_____________________________
Title______________________________
Dated: ______________________, 19__
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED ________________________ hereby sells, assigns and
transfers unto ____________________________________
______________________________ _______________________________________
(Please print name and address (Please insert social security or other
including zip code) identifying number)
the rights 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 in the premises.
Dated:______________________
______________________________________
Signature
(Signature must confirm in all respects to the
name of the holder as specified on the face of
this Warrant Certificate and must bear a signature
guarantee by a member firm of a registered
national
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securities exchange, a member of the
National Association of Securities Dealers, Inc.,
a participant in the Security Transfer Agents
Medallion Program or the Stock Exchange Medallion
Program, or by a commercial bank or trust company
having an office or correspondent in the United
States)
SIGNATURE GUARANTEE
Name of Firm______________________
Address___________________________
Area Code
And Number_______________________
Authorized
Signature__________________________
Name_____________________________
Title______________________________
Dated: ______________________, 19__
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