EXHIBIT 4.7
________________________________________________________________________________
________________________________________________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
AND
______________________________, AS WARRANT AGENT
_____________________
FORM OF COMMON STOCK
WARRANT AGREEMENT
_____________________
DATED AS OF ________, ____
________________________________________________________________________________
________________________________________________________________________________
TABLE OF CONTENTS
PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Appointment of Warrant Agent . . . . . . . . . . . . . . . 1
SECTION 2. Form of Warrant. . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Countersignature and Registration. . . . . . . . . . . . . 2
SECTION 4. Transfers and Exchanges. . . . . . . . . . . . . . . . . . 2
SECTION 5. Exercise of Warrants . . . . . . . . . . . . . . . . . . . 3
SECTION 6. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 4
SECTION 7. Mutilated or Missing Warrants. . . . . . . . . . . . . . . 4
SECTION 8. Reservation of Shares, etc.. . . . . . . . . . . . . . . . 4
SECTION 9. Warrant Price; Adjustments . . . . . . . . . . . . . . . . 5
SECTION 10. Notice to Warrantholders . . . . . . . . . . . . . . . . . 13
SECTION 11. Certain Covenants of the Company . . . . . . . . . . . . . 13
SECTION 12. Disposition of Proceeds, etc.. . . . . . . . . . . . . . . 14
SECTION 13. Merger or Consolidation or Change of Name of
Warrant Agent. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 14. Duties of Warrant Agent. . . . . . . . . . . . . . . . . . 14
SECTION 15. Change of Warrant Agent. . . . . . . . . . . . . . . . . . 16
SECTION 16. Identity of Transfer Agent . . . . . . . . . . . . . . . . 17
SECTION 17. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 18. Supplements and Amendments . . . . . . . . . . . . . . . . 18
i
SECTION 19. Successors . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 20. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 21. Benefits of This Agreement . . . . . . . . . . . . . . . . 18
SECTION 22. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 18
[SECTION 23. Acceleration of Warrants by the Company. . . . . . . . . . 19]
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
EXHIBIT A: Form of Warrant. . . . . . . . . . . . . . . . . . . . . . A-1
ii
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
Form of Common Stock Warrant Agreement
COMMON STOCK WARRANT AGREEMENT, dated as of ________, ____, between ▇▇▇▇
▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation (hereinafter called the "Company"),
and ____________________ having a corporate trust office in __________________,
as warrant agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue [Class __] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ______ shares of Common Stock of the Company (par value $.125 per
share) (hereinafter called the "Shares") at an initial cash purchase price of
$_____ per Share at any time [after __________ and] prior to [____] p.m., [City]
time, on ________, ____ (hereinafter called the "Expiration Date") (unless
extended as provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
WHEREAS, the Warrants will be offered in Units, each of which consists of
________________ and Warrants to purchase _______ Shares; 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, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company,
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. FORM OF WARRANT. The text of the Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the terms of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise price of $_____ per Share; PROVIDED, HOWEVER, that the Warrant
Exercise Price and the number of Shares issuable upon exercise of Warrants are
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman of the Board, President or Vice President
of the Company, under its seal, affixed or in facsimile, and by the manual or
facsimile signature of the present or any future Secretary or Assistant
Secretary of the Company.
The Company shall promptly notify the Warrant Agent from time to time in
writing of the number of Warrants to be issued and furnish written instructions
in connection therewith signed by an executive officer of the Company; such
notification and instructions may, but need not be, in the form of a general or
continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of each
initial issuance, and as of the date of issuance thereof upon any transfer or
exchange thereof.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The
Warrants shall be countersigned by the Warrant Agent (or by any successor to the
Warrant Agent then acting as warrant agent under this Agreement) and shall not
be valid for any purpose unless so countersigned. Such Warrants may be so
countersigned, however, by the Warrant Agent (or by its successor as warrant
agent) and be delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature or delivery. Upon issuance of any Warrant, the Company will
present the same, or cause the same to be presented, to the Warrant Agent for
countersignature of such Warrant.
SECTION 4. TRANSFERS AND EXCHANGES. The Warrant Agent shall transfer,
from time to time, any outstanding Warrants upon the books to be maintained by
the Warrant Agent for that purpose, upon the surrender thereof for transfer
properly endorsed or accompanied by appropriate instructions for transfer. Upon
any such transfer, a new Warrant of like tenor shall be issued to the transferee
and the surrendered Warrant shall be canceled by the Warrant Agent. All such
Warrants so canceled shall be delivered by the Warrant Agent to the Company from
time to time. The Warrants may be exchanged at the option of the holder
thereof, when surrendered at the office in _____________________ of the Warrant
Agent, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like number
of Shares. The Warrant Agent is hereby irrevocably authorized to countersign
and deliver, in accordance with the provisions of this Section and Section 3 of
this Agreement, such new Warrants required pursuant to the provisions of this
Section,
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and the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
Notwithstanding the foregoing, until ________________________, the Warrants
shall not be transferable apart from the _______________________ to which they
are attached, any transfer of the _____________________________ shall be deemed
a transfer of the Warrants attached thereto, and any attempt to transfer the
Warrants apart from the _________ shall be void and of no effect. Each Warrant
shall contain a legend to the foregoing effect.]
SECTION 5. EXERCISE OF WARRANTS. The registered holder of each Warrant
shall have the right, which may be exercised as in such Warrant expressed, to
purchase from the Company (and the Company shall issue and sell to such
registered holder) the number of Shares specified in such Warrants, upon
surrender to the Company, at the office in ________________________________
of the Warrant Agent of such Warrant, with the form of election to purchase
on the reverse thereof duly filled in and signed, and upon payment to the
Warrant Agent for the account of the Company of the Warrant Exercise Price,
determined in accordance with the provisions of Section 9 of this Agreement,
for the number of Shares in respect of which such Warrant is then exercised.
Payment of such Warrant Exercise Price may be made in cash, or by certified
check or bank draft or postal or express money order, payable in United
States dollars, to the order of the Warrant Agent. No adjustment shall be
made for any dividends on any Shares issuable upon exercise of any Warrant.
Subject to Section 6, upon such surrender of Warrants, and payment of the
Warrant Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants, and in such name or names as such
registered holder may designate, a certificate or certificates for the number
of full Shares so purchased upon the exercise of such Warrants, together with
cash, as provided in Section 9 of this Agreement, in respect of any fraction
of a Share otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of record of such
Shares as of the date of the surrender of such Warrants and payment of the
Warrant Exercise Price as aforesaid; PROVIDED, HOWEVER, that if, at the date
of surrender of such Warrants and payment of such Warrant Exercise Price, the
transfer books for the Shares purchasable upon the exercise of such Warrants
shall be closed, no such surrender of such Warrants and no such payment of
such Warrant Exercise Price shall be effective to constitute the person so
designated to be named therein as the holder of record of such Shares on such
date, but shall be effective to constitute such person as the holder of
record of such Shares for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Shares purchasable upon
the exercise of such Warrants shall
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be opened, and the certificates for the Shares in respect of which such Warrants
are then exercised shall be issuable as of the date on which such books shall
next be opened, and until such date the Company shall be under no duty to
deliver any certificate for such Shares. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the registered holders
thereof, either as an entirety or from time to time for part only of the Shares
specified therein and, in the event that any Warrant is exercised in respect of
less than all of the Shares specified therein at any time prior to the
Expiration Date of the Warrants, a new Warrant or Warrants of like tenor will be
issued for the remaining number of Shares specified in the Warrant so
surrendered, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrants pursuant to the provisions
of this Section and of Section 3 of this Agreement, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
SECTION 6. PAYMENT OF TAXES. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Shares issuable upon the exercise
of Warrants; PROVIDED, HOWEVER, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a name other than that of
the registered holder of Warrants in respect of which such Shares are issued and
the Company shall not be required to issue and deliver the certificates for such
Shares unless and until the holder has paid to the Company the amount of any tax
which may be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Company that such tax has been paid.
SECTION 7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants
shall be mutilated, lost, stolen or destroyed, the Company will issue and the
Warrant Agent will countersign and deliver in exchange and substitution for and
upon cancellation of the mutilated Warrant, or in lieu of and substitution for
the Warrant lost, stolen or destroyed, a new Warrant of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrants and indemnity, if requested, also satisfactory to
them. Applicants for such substitute Warrants shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe. Any such new Warrant shall constitute an
original contractual obligation of the Company whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
SECTION 8. RESERVATION OF SHARES, ETC. Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the Expiration Date keep reserved, out of its authorized and unissued
Common Stock, a number of Shares sufficient to provide for the exercise of the
rights of purchase
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represented by the Warrants, and the Transfer Agent for the Shares and every
subsequent Transfer Agent for the Shares issuable upon the exercise of any of
the rights of purchase aforesaid are hereby irrevocably authorized and directed
at all times to reserve such number of authorized and unissued Shares as shall
be requisite for such purpose. The Company will keep a copy of this Agreement
on file with the Transfer Agent for the Shares and with every subsequent
Transfer Agent for the Shares 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
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in Section 9 of this Agreement. All Warrants
surrendered in the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or partial exercise shall be canceled by the Warrant Agent
and shall thereafter be delivered to the Company.
SECTION 9. WARRANT PRICE; ADJUSTMENTS. A. The warrant price per share
at which Shares shall be purchasable upon exercise of Warrants (herein called
the "Warrant Exercise Price") to and including the Expiration Date (unless the
Expiration Date is extended as provided below in this Section 9A) shall be $____
per share, or, if adjusted as provided in this Section, shall be such price as
so adjusted. The Warrants will not be exercisable prior to [the close of
business on the date of any initial issuance thereof] [_________________] and
will expire at [_______] p.m., [City] time, on the Expiration Date; PROVIDED
THAT the Company reserves the right to, and may, in its sole discretion, at any
time and from time to time, at such time or times as the Company so determines,
extend the Expiration Date of the Warrants for such periods of time as it
chooses; FURTHER PROVIDED that in no case may the Expiration Date of the
Warrants (as extended) be extended beyond five years from the Expiration Date
set forth above. Whenever the Expiration Date of the Warrants is so extended,
the Company shall at least 20 days prior to the then Expiration Date cause to be
mailed to the Warrant Agent and the registered holders of the Warrants in
accordance with the provisions of Section 17 hereof a notice stating that the
Expiration Date has been extended and setting forth the new Expiration Date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable
upon exercise of each Warrant and the number of Warrants outstanding
shall be subject to adjustment as follows:
(a) In case the Company shall at any time after the date of
this Agreement (i) pay a dividend, or make a distribution, on the
Common Stock which is payable in shares of its capital stock
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(whether shares of Common Stock or of capital stock of any other
class), (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of securities (including
shares of Common Stock), or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of
shares (including shares of Common Stock), the number of shares
purchasable upon exercise of each Warrant immediately prior to
the occurrence of such event shall be adjusted so that the holder
of each Warrant shall be entitled to receive upon payment of the
warrant purchase price the aggregate number of shares of the
Company which, if such Warrant had been exercised immediately
prior to the occurrence of such event, such holder would have
owned or have been entitled to receive immediately after the
occurrence of such event. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately after the
record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision
or combination. If, as a result of an adjustment made pursuant
to this subparagraph (a), the holder of any Warrant thereafter
exercised shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors
of the Company (whose determination shall be conclusive) shall
determine the allocation between or among shares of such classes
of capital stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive any shares
or other securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so received
upon exercise of any 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 shares of
Common Stock contained in this paragraph, and other provisions of
this paragraph 9B(1) with respect to the shares of Common Stock
shall apply on like terms to any such other shares or other
securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after such
record date) to subscribe for or purchase Common Stock at a price
per share less than the current market price per share of
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Common Stock (as defined in subparagraph (e) below) at such
record date, the warrant purchase price shall be determined by
multiplying the warrant purchase price in effect immediately
prior to such record date by a fraction, the numerator of which
shall be the number of Shares of Common Stock outstanding on such
record date plus the number of Shares of Common Stock which the
aggregate offering price of the total number of Shares so offered
would purchase at such current market price, and the denominator
of which shall be the number of Shares of Common Stock
outstanding on such record date plus the number of additional
Shares of Common Stock offered for subscription or purchase.
Such adjustment shall be made successively whenever such a record
date is fixed, and shall become effective immediately after such
record date. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of common
stock at less than such current market price, and in determining
the aggregate offering price of such shares, there shall be taken
into account any consideration received by the Company for such
rights or warrants, the value of such consideration, if other
than cash, to be determined by the Board of Directors of the
Company. Common Stock owned by or held for the account of the
Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subparagraph (b).
(c) In case the Company shall fix a record date for making
a distribution to all holders of its Common Stock of evidences of
its indebtedness or assets (excluding regular quarterly or other
periodic or recurring cash dividends or distributions and cash
dividends or distributions paid from retained earnings or
referred to in subparagraph (a) above) or rights or warrants to
subscribe or warrants to purchase (excluding those referred to in
subparagraph (b) above), then in each such case the warrant
purchase price shall be determined by multiplying the warrant
purchase price in effect immediately prior to such record date by
a fraction (x) the numerator of which shall be such current
market price (as defined in subparagraph (e) below) per Share of
Common Stock on such record date, less the then fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the assets
or evidences of indebtedness so distributed or of such
subscription rights or warrants applicable to one share of the
Common Stock and (y) the denominator of which shall be the
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current market price per share of the Common Stock on such record
date. Such adjustment shall be made successively whenever such a
record date is fixed and shall become effective immediately after
such record date. Notwithstanding the foregoing, in the event
that the Company shall distribute any rights or warrants to
acquire capital stock ("Rights") pursuant to this subparagraph
(c), the distribution of separate certificates representing such
Rights subsequent to their initial distribution (whether or not
such distribution shall have occurred prior to the date of the
issuance of such Warrants) shall be deemed to be the distribution
of such Rights for purposes of this subparagraph (c), provided
that the Company may, in lieu of making any adjustment pursuant
to this subparagraph (c) upon a distribution of separate
certificates representing such Rights, make proper provision so
that each holder of such Warrants who exercises such Warrants (or
any portion thereof) (A) before the record date for such
distribution of separate certificates shall be entitled to
receive upon such exercise shares of Common Stock issued with
Rights and (B) after such record date and prior to the
expiration, redemption or termination of such Rights shall be
entitled to receive upon such exercise, in addition to the shares
of Common Stock issuable upon such exercise, the same number of
such Rights as would a holder of the number of shares of Common
Stock that such Warrants so exercised would have entitled the
holder thereof to purchase in accordance with the terms and
provisions of and applicable to the Rights if such Warrants were
exercised immediately prior to the record date for such
distribution. Common Stock owned by or held for the account of
the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subparagraph (c).
(d) After each adjustment of the number of shares
purchasable upon exercise of each Warrant pursuant to
subparagraph 9B(1)(a), the Warrant Exercise Price shall be
adjusted by multiplying such Warrant Exercise Price immediately
prior to such adjustment by a fraction of which the numerator
shall be the number of Shares purchasable upon exercise of each
Warrant immediately prior to such adjustment, and the denominator
of which shall be the number of Shares so purchasable immediately
thereafter. After each adjustment of the Warrant Exercise Price
pursuant to subparagraph 9B(1)(b) or (c), the total number of
Shares or fractional part thereof purchasable upon the exercise
of each Warrant shall be
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proportionately adjusted to such number of shares or fractional
parts thereof as the aggregate Warrant Exercise Price of the
number of shares or fractional part thereof purchasable
immediately prior to such adjustment will buy at the adjusted
Warrant Exercise Price.
(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of
Common Stock at any date shall be deemed to be the average of the
daily closing prices for the 30 consecutive business days
commencing 45 business days before the day in question. The
closing price for each day shall be (i) if the Common Stock is
listed or admitted for trading on the New York Stock Exchange,
the last sale price (regular way), or the average of the closing
bid and ask prices (regular way), if no sale occurred, of Common
Stock, in either case as reported on the New York Stock Exchange
Composite Tape or, if the Common Stock is not listed or admitted
to trading on the New York Stock Exchange, on the principal
national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market
System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, (ii) if not listed or
quoted as described in (i), the mean between the closing high bid
and low asked quotations of Common Stock reported by NASDAQ, or
any similar system for automated dissemination of quotations of
securities prices then in common use, if so quoted, or (iii) if
not quoted as described in clause (ii), the mean between the high
bid and low asked quotations for Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities
dealers have inserted both bid and asked quotations for Common
Stock on at least 5 of the 10 preceding days. If none of the
conditions set forth above is met, the closing price of Common
Stock on any day or the average of such closing prices for any
period shall be the fair market value of Common Stock as
determined by a member firm of the New York Stock Exchange
selected by the Company.
(f) (A) Nothing contained herein shall be construed to
require an adjustment as a result of the issuance of Common Stock
pursuant to, or the granting or exercise of any rights under, the
Company's [LIST EMPLOYEE AND SHAREHOLDER PLANS, IF ANY, THAT
MIGHT OTHERWISE RESULT IN ADJUSTMENTS].
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(B) In addition, no adjustment in the Warrant Exercise
Price shall be required unless and until the earlier of the
following shall have occurred: (x) such adjustment would
require an increase or decrease of at least 1% in the
Warrant Exercise Price or (y) a period of 3 years shall have
elapsed from the date of the occurrence of any event
requiring any such adjustment pursuant to subparagraphs
9B(1)(a), (b) or (c) above. All adjustments shall be made
to the nearest one hundredth of a Share and the nearest
cent, and any adjustments which by reason of this
subparagraph (f) are not required to be made shall be
carried forward cumulatively and taken into account in any
subsequent adjustment which (including such carry-forward)
is required to be made under this subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall
require that an adjustment be made retroactively immediately
following a record date, the Company may elect to defer (but only
until five business days following the mailing of the notice
described in subparagraph 9B(5) below) issuing to the holder of
any Warrant exercised after such record date the Shares of the
Company issuable upon such exercise over and above the Shares
issuable upon such exercise only on the basis of the Warrant
Exercise Price prior to adjustment.
(h) The Company may, at its option, at any time until the
Expiration Date, reduce the then current Warrant Exercise Price
to any amount deemed appropriate by the Board of Directors of the
Company for any period not exceeding twenty (20) consecutive days
(as evidenced in a resolution adopted by such Board of
Directors), but only upon giving the notices required by
subparagraph 9(B)(5) twenty (20) days prior to taking such
action.
(i) Except as herein otherwise expressly provided, no
adjustment in the Warrant Exercise Price shall be made by reason
of the issuance of Shares, or securities convertible into or
exchangeable for Shares, or securities carrying the right to
purchase any of the foregoing or for any other reason whatsoever.
(j) Irrespective of any of the adjustments in the Warrant
Exercise Price or the number of Shares, Warrant Certificates
theretofore issued may continue to express the same prices and
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number of Shares as are stated in a similar Warrant Certificate
issuable initially, or at some subsequent time, pursuant to this
Agreement and such number of Shares specified therein shall be deemed
to have been so adjusted.
(2) No fractional Shares of Common Stock shall be issued upon
the exercise of Warrants. If more than one Warrant shall be exercised
at one time by the same holder, the number of full Shares which shall
be issuable upon such exercise shall be computed on the basis of the
aggregate number of Shares purchased pursuant to the Warrants so
exercised. Instead of any fractional Share of Common Stock which
would otherwise be issuable upon exercise of any Warrant, the Company
shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last sales price (or bid price if
there were no sales) per Share of Common Stock, in either case as
reported on the New York Stock Exchange Composite Tape on the business
day which next precedes the day of exercise or, if the Common Stock is
not then listed or admitted to trading on the New York Stock Exchange,
an amount equal to the same fraction of the market price per share of
Common Stock (as determined in a manner described by the Board of
Directors of the Company) at the close of business on the business day
which next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants
are outstanding: (a) any reclassification or change of the
outstanding Shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value);
or (b) any consolidation or merger to which the Company is a party
(other than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of Common
Stock issuable upon exercise of the Warrants); or (c) any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety; then the Company, or such
successor or purchasing corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or otherwise so
that the holders of the Warrants then outstanding shall have the right
at any time thereafter, upon exercise of such Warrants, to purchase
the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as would be received by a holder of the
number of shares of Common Stock issuable upon exercise of such
Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such provision shall
provide for
-11-
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 9. The above
provisions of this subparagraph 9B(3) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales
or conveyances.
(4) Before taking any action which would cause an adjustment
decreasing the Warrant Exercise Price so that the Warrant Exercise
Price is below the then par value of the shares of Common Stock, the
Company will take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Shares of Common Stock at
the Warrant Exercise Price as so adjusted.
(5) Whenever the Warrant Exercise Price then in effect is
adjusted as herein provided, the Company shall mail to each holder of
the Warrants at such holder's address as it shall appear on the books
of the Company a statement setting forth the adjusted Warrant Exercise
Price then and thereafter effective under the provisions hereof,
together with the facts, in reasonable detail, upon which such
adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in cash
out of its current or retained earnings, or (ii) the Company shall
authorize the granting to the holders of its Common Stock of rights to
subscribe for or purchase any shares of capital stock of any class or
of any other rights, or (iii) there is to be any reclassification of
the Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock), or any
consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or (iv) any
distribution is to be made on or in respect of the Common Stock in
connection with the dissolution, liquidation or winding up of the
Company, then the Company shall mail to each holder of Warrants at
such holder's address as it shall appear on the books of the Company,
at least twenty days (or ten days in any case specified in clause (i)
or (ii) above) prior to the applicable record date hereinafter
specified, a notice stating (x) the record date for such dividend,
distribution or rights, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights are to be determined, or (y) the
date on which such reclassification, consolidation, merger,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that
-12-
holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable
upon such reclassification, consolidation, merger, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such
transaction or any adjustment in the Warrant Exercise Price required
by this Section 9.
SECTION 10. NOTICE TO WARRANTHOLDERS. Nothing contained in this Agreement
or in any of the Warrants shall be construed as conferring upon the holders
thereof the right to vote or to consent or to receive notice as shareholders in
respect of the meetings of shareholders or the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
SECTION 11. CERTAIN COVENANTS OF THE COMPANY.
A. So long as any unexpired Warrants remain outstanding and if
required in order to comply with the Securities Act of 1933, as amended
(the "Act"), the Company covenants and agrees that it will file such
post-effective amendments to the registration statement filed pursuant to
the Act with respect to the Warrants (File No. 333-__________) (or such
other registration statements or post-effective amendments or supplements)
as may be necessary to permit the Company to deliver to each person
exercising a Warrant a prospectus meeting the requirements of Section
10(a)(3) of the Act and otherwise complying therewith, and will deliver
such a prospectus to each such person. The Company further covenants and
agrees that it will obtain and keep effective all permits, consents and
approvals of governmental agencies and authorities, and will use its best
efforts to take all action which may be necessary to qualify the Shares for
sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance,
sale, transfer and delivery of the Shares issued upon exercise of the
Warrants, and to maintain such qualifications during the entire period in
which the Warrants are exercisable.
B. The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Shares will at the time of
delivery of certificates for such Shares (subject to payment of the Warrant
Exercise Price) be duly and validly authorized and issued and fully paid
and nonassessable Shares, free from any preemptive rights and taxes, liens,
charges and security interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action
which may be necessary to cause the Shares to be duly listed on the New
York Stock Exchange or any securities exchange on which the other shares of
-13-
Common Stock of the Company are listed or on the National Market System of
NASDAQ at the dates of exercise of the Warrants.
SECTION 12. DISPOSITION OF PROCEEDS, ETC.
A. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all
moneys received by the Warrant Agent for the purchase of Shares through the
exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours at its
principal office in the City of ________________________, ____________.
SECTION 13. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, PROVIDED that such
corporation would be eligible for appointment as a successor Warrant Agent under
the provisions of Section 15 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and if any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrants
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant shall have the full
force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrants so countersigned; and in case at that time any of the Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
SECTION 14. DUTIES OF 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 of Warrants, by their
acceptance thereof, shall be bound:
-14-
A. The statements contained herein and in the Warrants 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 action taken or to be 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 any of 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 or
by or through its attorneys, agents or employees, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys, agents or employees or for any loss to
the Company resulting from such neglect or misconduct, provided reasonable
care shall have been exercised in the selection and continued employment
thereof.
D. The Warrant Agent may consult at any time with 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 of any Warrant 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. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of 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 in the execution of 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 execution of this Agreement except
as a result of the Warrant Agent's gross 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
-15-
expense unless the Company or one or more registered holders of Warrants
shall furnish the Warrant Agent with reasonable security and indemnity 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 registered
holders of the Warrants, as their respective rights or interests may
appear.
▇. The Warrant Agent and any shareholder, 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
transaction in which the Company may be interested, or contract with or
lend money to or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in
a ministerial capacity, 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 gross negligence or bad faith.
SECTION 15. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, and to the holders of the Warrants notice by publication, of such
resignation, specifying a date when such resignation shall take effect, which
notice shall be published at the expense of the Company at least once a week for
two consecutive weeks in a newspaper of general circulation in the City of
[City] prior to the date so specified. The Warrant Agent may be removed by the
Company by like notice from the Company to the Warrant Agent and the holders of
Warrants at the expense of 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 the
-16-
registered holder of a Warrant (who shall, with such notice, submit his
Warrant for inspection by the Company), then, at the expense of the Company,
the Warrant Agent or the registered holder of any Warrant may apply to any
court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company
or by such a court, shall be a bank or trust company, in good standing,
incorporated under the laws of any State or of the United States of America,
having at the time of its appointment as Warrant Agent a combined capital and
surplus of at least $100,000,000. 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 the purpose. Failure to file or publish any notice provided
for in this Section, 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.
SECTION 16. IDENTITY OF TRANSFER AGENT. Forthwith upon the
appointment of any Transfer Agent for the Shares or of any subsequent Transfer
Agent for Shares issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
SECTION 17. NOTICES. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any Warrant to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Secretary
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
-17-
Any notice pursuant to this Agreement to be given or made by the Company or
the Warrant Agent to the registered holder of any Warrant shall be sufficiently
given or made (unless otherwise specifically provided for herein) if sent by
first-class mail, postage prepaid, addressed to said registered holder at his
address appearing on the Warrant register.
SECTION 18. 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 will not materially adversely affect
the interest of the registered holders of the Warrants.
SECTION 19. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 20. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of [______________].
SECTION 21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or entity other than the Company and the
Warrant Agent and the holders of Warrants 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 and the Warrant Agent and the holders of
Warrants.
SECTION 22. 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.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT -
-18-
SECTION 23. ACCELERATION OF WARRANTS BY THE COMPANY.
A. At any time on or after ____________________, the Company shall
have the right to accelerate any or all Warrants at any time by causing
them to expire at the close of business on the day next preceding a
specified date (the "Acceleration Date"), if the Market Price (as
hereinafter defined) of the Common Stock equals or exceeds _________
percent (____%) of the then effective Warrant Exercise Price, adjusted as
if no changes in such Warrant Exercise Price had been made pursuant to
subsection 9B, on any 20 Trading Days (as hereinafter defined) within a
period of 30 consecutive Trading Days ending no more than five Trading Days
prior to the date on which the Company gives notice to the Warrant Agent of
its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common
Stock is listed or admitted for trading on the New York Stock Exchange, the
last reported sale price, regular way (or, if no such price is reported,
the average of the reported closing bid and asked prices, regular way) of
Common Stock, in either case as reported on the New York Stock Exchange
Composite Tape or, if the Common Stock is not listed or admitted to trading
on the New York Stock Exchange, on the principal national securities
exchange on which Common Stock is not listed or admitted to trading or, if
not listed or admitted to trading on any national securities exchange, on
the National Market System of NASDAQ or, if not listed or admitted to
trading on any national securities exchange or quoted on the National
Market System of NASDAQ, the average of the closing high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ, or such other
system then in use, or if on any such date the Shares of Common Stock are
not quoted by any such organization, the average of the closing bid and
asked prices as furnished by any New York Stock Exchange firm selected from
time to time by the Company for that purpose. "Trading Day" shall be each
Monday through Friday, other than any day on which securities are not
traded in the system or on the exchange that is the principal market for
the Common Stock, as determined by the Board of Directors of the Company.
C. In the event of an acceleration of less than all of the
Warrants, the Warrant Agent shall select the Warrants to be accelerated by
lot, pro rata or in such other manner as it deems, in its discretion, to be
fair and appropriate.
D. Notice of an acceleration specifying the Acceleration Date
shall be sent by mailing first class, postage prepaid, to each registered
holder of a Warrant Certificate representing a Warrant accelerated at such
holder's address appearing on the Warrant register not more than 60 days
nor less than 30 days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than 20 days, and no less than 10
days, prior to the
-19-
mailing of notice to registered holders of Warrants pursuant to this
Section, by publication at least once in a newspaper of general circulation
in the City of New York.
E. Any Warrant accelerated may be exercised until [_______] p.m.,
[City] time, on the business day next preceding the Acceleration Date. The
Warrant Exercise Price shall be payable as provided in Section 5]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By_________________________
Its_____________________
Attest:
______________________________
____________________________, as
Warrant Agent
By__________________________
Its_____________________
Attest:
______________________________
-20-
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[IF WARRANTS ARE ATTACHED TO Prior to _______________ this
OTHER SECURITIES AND ARE NOT Warrant Certificate cannot be
IMMEDIATELY DETACHABLE. transferred or exchanged unless
attached to a [Title of Other
Securities].]
[FORM OF LEGEND IF WARRANTS ARE Prior to _______________,
NOT IMMEDIATELY EXERCISABLE. Warrants evidenced by this
Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [______] P.M., [CITY] TIME, ON ____________, 19__
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
Warrants to Purchase
Warrant Certificate Representing
[Title of Warrant Securities]
No. __________ ___________ Warrants
This certifies that ____________________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT
IMMEDIATELY DETACHABLE - , subject to the registered owner qualifying as a
"Holder" of this Warrant Certificate, as hereinafter defined) to purchase, at
any time [after [___] P.M., [City] time, on _______________ and] on or before
[___] P.M., [City] time, on ____________________, ____________ shares of [Title
of Warrant Securities] (the "Warrant Securities"), of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
(the "Company") on the following basis: during the period from _______________,
through and including ______________, the exercise price of each Warrant will be
___________; during the period from ________, through and including ________,
the exercise price of each warrant will be ________ (the "Warrant Price"). No
adjustment shall be made for any dividends on any Warrant Securities
A-1
issuable upon exercise of any Warrant. The Holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof
and by paying in full [in lawful money of the United States of America] [in cash
or by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in immediately available funds, the Warrant Price
for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ________________________],
which is, on the date hereof, at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
The term "Holder" as used herein shall mean [IF WARRANTS ARE ATTACHED TO
OTHER SECURITIES AND ARE NOT IMMEDIATELY DETACHABLE - prior to ___________, __
(the "Detachable Date"), the registered owner of the Company's [title of Other
Securities] to which this Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of____________, __ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at __________________________________________].
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT IMMEDIATELY
DETACHABLE - Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"Other Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Additionally, on or prior to the Detachable
Date, each transfer of such Other Security or the register of the Other
Securities shall operate also to transfer this Warrant Certificate. After such
date, transfer of this] [IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE
NOT IMMEDIATELY DETACHABLE - Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the
A-2
corporate trust office of the Warrant Agent [or _________________________] by
the registered owner of such owner's assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
[IF OTHER SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -
Except as provided in the immediately preceding paragraph, after] [IF OTHER
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANT ALONE -
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or ____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: _________________, ________
▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By ________________________________
Its ____________________________
ATTEST:
___________________________________
Countersigned:
___________________________________
As Warrant Agent
By ________________________________
Authorized Signature
A-3
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the Holder must pay [in United
States dollars] [in cash or by certified check or official bank check or by bank
wire transfer, in each case] [by bank wire transfer in immediately available
funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: __________________, which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below and present
this Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth below.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the payment.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase ______ shares of the [Title
of Warrant Securities] (the "Warrant Securities") of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
and represents that he has tendered payment for such Warrant Securities [in
Dollars] [in cash or by certified check or official bank check or by bank wire
transfer, in each case] [by bank wire transfer in immediately available funds]
to the order of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, c/o [insert name and address of
Warrant Agent], in the amount of ________ in accordance with the terms hereof.
The undersigned requests that said principal amount 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.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated:___________________________ Name________________________________
(Please Print)
_________________________________ Address_____________________________
(Insert Social Security or Other
Identifying Number of Holder) _____________________________
A-4
Signature Guaranteed
______________________________ Signature_____________________________
[FOR REGISTERED WARRANTS -- Signature
must conform in all respects to name of
holder as specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York, Midwest or Pacific Stock Exchange)
This Warrant may be exercised at the following addresses:
By hand at _____________________________________________________
_____________________________________________________
_____________________________________________________
By mail at _____________________________________________________
_____________________________________________________
_____________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
A-5
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED,_________________________ hereby sells, assigns and
transfers unto _____________________________________________________________
________________________________________________________________________________
Print or Type Name
________________________________________________________________________________
Street Address
________________________________________________________________________________
City State Zip Code
________________________________________________________________________________
Social Security or other Identifying Number
the right represented by the within Warrant to purchase ___________________
Shares of Common Stock ($.125 par value) of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation to which
the within Warrant relates and appoints ________________________________________
attorney to transfer such right on the books of the Warrant Agent with full
power of substitution in the premises.
Dated: ________________________
_____________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
Signature Guaranteed
________________________________
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