FORM OF WARRANT AGREEMENT
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▇▇▇▇▇▇ CORPORATION
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as Warrant Agent
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Warrants to Purchase 2,216,979 Shares of Common Stock
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WARRANT AGREEMENT
Dated as of ________ __, 1998
TABLE OF CONTENTS
Page
1. DEFINITIONS...............................................................1
2. APPOINTMENT OF WARRANT AGENT..............................................3
2.1. Appointment.......................................................3
3. REGISTRATION, FORM AND EXECUTION OF WARRANTS..............................4
3.1. Registration......................................................4
3.2. Form of the Warrant...............................................4
3.3. Countersignature of the Warrants..................................4
4. EXERCISE OF WARRANTS......................................................5
4.1. Manner of Exercise................................................5
4.2. Payment of Taxes..................................................6
4.3. Fractional Shares.................................................6
5. TRANSFER, DIVISION AND COMBINATION........................................6
5.1. Transfer..........................................................6
5.2. Division and Combination..........................................7
5.3. Maintenance of Books..............................................7
6. ADJUSTMENTS...............................................................7
6.1. Adjustment for Change in Capital Stock............................7
6.2. Adjustment for Rights Issue.......................................8
6.3. Adjustment for Other Distributions................................9
6.4. Adjustment for New Common Stock Issue............................10
6.5. Adjustment for Convertible Securities Issue......................11
6.6. Market Price.....................................................13
6.7. Consideration Received...........................................14
6.8. When Adjustment May Be Deferred..................................14
6.9. When No Adjustment Required......................................15
6.10. Notice of Adjustment............................................15
6.11. Voluntary Reduction.............................................15
6.12. Notice of Certain Transactions..................................15
6.13. Preservation of Purchase Rights Upon
Reclassification, Consolidation, etc............................15
6.14. Adjustment to the Number of Shares Purchasable Upon
Exercise of Warrants; Exercise Price Not Less than
Par Value.......................................................16
6.15. Other Dilutive Events...........................................16
6.16. Company Determination Final.....................................17
6.17. Form of Warrants................................................17
7. NOTICES TO HOLDERS.......................................................17
7.1. Notice of Adjustments............................................17
7.2. Notice of Corporate Action.......................................17
8. COVENANTS................................................................18
9. RESERVATION AND AUTHORIZATION OF NEW COMMON STOCK:
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY...........18
10. STOCK AND WARRANT TRANSFER BOOKS........................................19
11. LOSS OR MUTILATION......................................................19
12. OFFICE OF COMPANY.......................................................19
13. WARRANT AGENT...........................................................19
13.1. Merger or Consolidation or Change of Name of Warrant
Agent...........................................................19
13.2. Certain Terms and Conditions Concerning the Warrant
Agent...........................................................20
13.3. Change of Warrant Agent.........................................22
13.4. Disposition of Proceeds on Exercise of Warrants,
Inspection of Warrant Agreement.................................23
14. MISCELLANEOUS...........................................................23
14.1. Notice Generally................................................24
14.2. Successors and Assigns..........................................24
14.3. Amendment.......................................................25
14.4. Severability....................................................25
14.5. Headings........................................................25
14.6. Governing Law...................................................25
14.7. Counterparts....................................................25
EXHIBITS
Exhibit A - Form of Warrant Certificate
Exhibit B - Warrant Agent Fees
THIS WARRANT AGREEMENT (this "Warrant Agreement"), dated as of
________ __, 1998, is made by and between ▇▇▇▇▇▇ Corporation, a Delaware
corporation (the "Company"), and _______________, a _______________
corporation, as warrant agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Company will issue to holders of its issued and
outstanding common stock, par value $1.00 per share, of the Company (the
"Old Common Stock"), warrants, as hereinafter described (the "Warrants"),
to purchase up to an aggregate of 2,216,979 shares of its common stock (the
"New Common Stock") to be issued and outstanding immediately after giving
effect to the Restructuring (as defined below); and
WHEREAS, the purpose of this Warrant Agreement is to set forth
the terms and conditions which shall govern the issuance of all of the
Warrants, the purchase of New Common Stock of the Company upon the exercise
thereof, the adjustments in the terms and price of such Warrants pursuant
to the anti-dilution provisions hereof and such other terms and conditions
as hereinafter set forth;
WHEREAS, the Company has requested the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, division, transfer, exchange and exercise of
the Warrants;
NOW, THEREFORE, in consideration of the foregoing and for the
purpose of defining the terms and provisions of the Warrants and the
respective rights and obligations thereunder and hereunder of the Company,
the Warrant Agent, and the Holders (as defined below), and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and affirmed, the Company and the Warrant Agent hereby agree
as follows:
1. DEFINITIONS.
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As used in this Warrant Agreement, the following terms have the
respective meanings set forth below:
"Additional Shares of New Common Stock" shall mean all shares of
New Common Stock issued by the Company after the Restructuring Date, other
than Warrant Shares.
"Affiliate" shall mean any Person that is an Affiliate (as
defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934).
"Business Day" shall mean any day that is not a Saturday or
Sunday or a day on which banks are required or permitted to be closed in
the State of New York.
"Company" shall have the meaning assigned to such term in the
first paragraph of this Warrant Agreement.
"Exercise Price" shall mean, in respect of a share of New Common
Stock at any date herein specified, $6.2648 per share of Common Stock,
subject to adjustment in accordance with Section 6.1.
"Expiration Date" shall mean __________ __, 2005 [the date which
is the 7-year anniversary date of the Restructuring Date].
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"Holder" shall mean the Person in whose name a Warrant is
registered in the warrant register of the Company maintained by or on
behalf of the Company for such purpose.
"Majority Holders" shall mean the Holders of Warrants exercisable
for in excess of 50% of the aggregate number of shares of New Common Stock
then purchasable upon exercise of all Warrants.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"New Common Stock" shall mean shares of common stock, par value
$1.00 per share, of the Company to be issued pursuant to the Restructuring,
and any capital stock into which such New Common Stock may thereafter be
changed, and shall also include shares of common stock of any successor or
acquiring corporation received by or distributed to the holders of New
Common Stock of the Company in the circumstances contemplated by Section
6.2.
"Other Property" shall have the meaning set forth in Section 6.2.
"Outstanding" shall mean, when used with reference to the New
Common Stock, at any date as of which the number of shares thereof is to be
determined, all issued shares of New Common Stock, except shares then owned
or held by or for the account of the Company or any subsidiary thereof, and
shall include all shares issuable in respect of outstanding scrip or any
certificates representing fractional interests in shares of New Common
Stock.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, incorporated organization, association,
corporation, limited liability company, limited liability partnership,
institution, public benefit corporation, entity or government (whether
federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department
thereof).
"Registration Statement" shall mean the Company's registration
statement on Form S-4, dated as of _______, 1998 and filed with the
Securities and Exchange Commission.
"Restructuring" shall mean the financial restructuring of the
Company pursuant to either the Exchange Restructuring or the Prepackaged
Restructuring (as each such term is defined in the Registration Statement).
"Restructuring Date" shall mean the date of consummation of the
Restructuring.
"Warrant Agent" shall have the meaning assigned to such term in
the first paragraph of this Warrant Agreement and shall include any
successor Warrant Agent hereunder.
"Warrant Agent's Principal Office" shall mean the principal
office of the Warrant Agent in [ ] (or such other office of the Warrant
Agent or any successor thereto hereunder acceptable to the Company as set
forth in a written notice provided to the Company and the Holders).
"Warrant Agreement" shall have the meaning assigned to such term
in the first paragraph of this Warrant Agreement.
"Warrant Price" shall mean an amount equal to (1) the number of
shares of New Common Stock being purchased upon exercise of a Warrant
pursuant to Section 4.1, MULTIPLIED by (2) the Exercise Price as of the
date of such exercise.
"Warrant Shares" shall mean the shares of New Common Stock
purchased by the Holders of the Warrants upon the exercise thereof.
"Warrants" shall have the meaning assigned to such term in the
recitals to this Warrant Agreement, and shall include all warrants issued
upon transfer, division or combination of, or in substitution for, any
thereof. All Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of shares of New Common Stock
for which they may be exercised.
2. APPOINTMENT OF WARRANT AGENT.
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2.1. Appointment. The Company hereby appoints the Warrant Agent
to act as agent for the Company in accordance with the instructions set
forth in this Warrant Agreement, and the Warrant Agent hereby accepts such
appointment.
3. REGISTRATION, FORM AND EXECUTION OF WARRANTS.
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3.1. Registration. All Warrants shall be numbered and shall be
registered in a warrant register maintained at the Warrant Agent's
Principal Office by the Warrant Agent as they are issued. The Company and
the Warrant Agent shall be entitled to treat a Holder as the owner in fact
for all purposes whatsoever of each Warrant registered in such Holder's
name.
3.2. Form of the Warrant. The text of each Warrant and of the
Election to Purchase Form and Assignment Form shall be substantially as set
forth in Exhibit A attached hereto. Each Warrant shall be executed on
behalf of the Company by its President or one of its Vice Presidents, under
its corporate seal reproduced thereon or facsimile thereof attested by its
Secretary or an Assistant Secretary. The signature of any of such officers
on the Warrants may be manual or facsimile.
Warrants bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any one of them
shall have ceased to hold such offices prior to the delivery of such
Warrants or did not hold such offices on the date of this Warrant
Agreement.
The Warrants shall be dated as of the date of countersignature
thereof by the Warrant Agent either upon initial issuance or upon division,
exchange, substitution or transfer.
3.3. Countersignature of the Warrants. Each Warrant shall be
manually countersigned by the Warrant Agent (or any successor to the
Warrant Agent then acting as warrant agent under this Warrant Agreement)
and shall not be valid for any purpose unless so countersigned. The
Warrants may be countersigned, however, by the Warrant Agent (or by its
successor as warrant agent hereunder) and may be delivered by the Warrant
Agent, notwithstanding that the persons whose manual signatures appear
thereon as proper officers of the Company shall have ceased to be such
officers at the time of such countersignature, issuance or delivery. The
Warrant Agent shall, upon written instructions of the President, a Vice
President, the Secretary, or an Assistant Secretary of the Company,
countersign, issue and deliver the Warrants entitling the Holders thereof
to purchase not more than 2,216,979 shares of New Common Stock (subject to
adjustment as set forth herein) and shall countersign and deliver such
Warrants as otherwise provided in this Warrant Agreement.
4. EXERCISE OF WARRANTS.
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4.1. Manner of Exercise. From and after the Effective Date and
until 5:00 p.m., New York City time, on the Expiration Date, a Holder may
exercise any of its Warrants, on any Business Day, for all or any part of
the number of shares of New Common Stock purchasable thereunder.
In order to exercise a Warrant, in whole or in part, a Holder
shall deliver to the Company at the Warrant Agent's Principal Office, (1) a
written notice of such Holder's election to exercise such Warrant, which
notice shall include the number of shares of New Common Stock to be
purchased, (2) payment of the Warrant Price for the account of the Company
and (3) such Warrant. Such notice shall be substantially in the form of the
Election to Purchase Form set forth on the reverse side of the form of
Warrant Certificate attached as Exhibit A hereto, duly executed by such
Holder or its agent or attorney. Upon receipt thereof, the Warrant Agent
shall, as promptly as practicable, and in any event within five Business
Days thereafter, deliver or cause to be delivered to such Holder an
executed certificate or certificates representing the aggregate number of
full shares of New Common Stock issuable upon such exercise. The stock
certificate or certificates so delivered shall be, to the extent possible,
in such denomination or denominations as such Holder shall request in the
notice and shall be registered in the name of such Holder or, subject to
Section 11 hereof, such other name as shall be designated in such notice.
Each Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and such Holder or any
other Person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date
such notice, together with the check or checks for payment of the Warrant
Price and such Warrant, is received by the Warrant Agent as described above
and all taxes required to be paid by such Holder, if any, pursuant to
Section 4.2 prior to the issuance of such shares have been paid. If any
Warrant shall have been exercised in part, the Warrant Agent shall, at the
time of delivery of the certificate or certificates representing Warrant
Shares, deliver to the Holder a new Warrant evidencing the rights of such
Holder to purchase the unpurchased shares of New Common Stock called for by
such Warrant, which new Warrant shall in all other respects be identical
with the Warrant exercised in part, or, at the request of such Holder,
appropriate notation may be made on such exercised Warrant and the same
returned to such Holder. Notwithstanding any provision herein to the
contrary, the Warrant Agent shall not be required to register shares in the
name of any Person who acquired a Warrant (or part thereof) or any Warrant
Shares otherwise than in accordance with such Warrant and this Warrant
Agreement.
Payment of the Warrant Price shall be made at the option of the
Holder by certified or official bank check or wire transfer or any
combination thereof, duly executed by such Holder or by such Holder's
attorney duly authorized in writing.
4.2. Payment of Taxes. All shares of New Common Stock issuable
upon the exercise of any Warrant pursuant to the terms hereof shall be
validly issued, fully paid and nonassessable and without any preemptive
rights. The Company shall pay any documentary stamp taxes attributable to
the initial issuance of Warrant Shares upon the exercise of Warrants;
provided that the Company shall not be required to pay any tax or taxes
that may be payable in respect of any transfer involved in the issuance of
any Warrant certificates or any certificates for Warrant Shares in a name
other than that of the registered holder of a Warrant certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or is not due.
4.3. Fractional Shares. The Company shall not be required to
issue a fractional share of New Common Stock upon exercise of any Warrant.
Whenever any distribution of warrants exercisable into fractional shares of
New Common Stock would otherwise be called for, the actual distribution
thereof will reflect a rounding up or down to the nearest share of Common
Stock, PROVIDED THAT, whenever any distribution of a Warrant that is
exercisable into exactly one-half of a share of New Common Stock would
otherwise be called for, the actual distribution will reflect a rounding up
to the nearest share of New Common Stock.
5. TRANSFER, DIVISION AND COMBINATION.
----------------------------------
5.1. Transfer. Transfer of any Warrant and all rights hereunder,
in whole or in part, shall be registered in the warrant register of the
Company to be maintained for such purpose at the Warrant Agent's Principal
Office, upon surrender of such Warrant at the Warrant Agent's Principal
Office, together with a written assignment of such Warrant substantially in
the form set forth on the reverse side of the form of Warrant Certificate
attached as Exhibit A hereto duly executed by the Holder or its agent or
attorney and payment of all funds sufficient to pay any taxes payable upon
the making of such transfer. Upon such surrender and, if required, such
payment, and subject to Section 9 hereof, the Company shall execute and the
Warrant Agent shall countersign and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denomination specified in
such instrument of assignment, and shall issue to the assignor a new
Warrant evidencing the portion of such Warrant not so assigned, and the
surrendered Warrant shall promptly be cancelled. A Warrant, if properly
assigned, may be exercised by a new Holder for the purchase of shares of
New Common Stock without having a new warrant issued.
5.2. Division and Combination. Any Warrant may be divided or
combined with other Warrants upon presentation thereof at the Warrant
Agent's Principal Office, together with a written notice specifying the
names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section
5.1, as to any transfer which may be involved in such division or
combination, the Company shall execute and the Warrant Agent shall
countersign and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such
notice.
5.3. Maintenance of Books. The Warrant Agent agrees to maintain,
at the Warrant Agent's Principal Office, the warrant register for the
registration of Warrants and the registration of transfer of the Warrants.
6. ADJUSTMENTS.
-----------
The Exercise Price and the number of Warrant Shares issuable upon
the exercise of each Warrant, are subject to adjustment from time to time
upon occurrence of the events enumerated this Section 6.
6.1. Adjustment for Change in Capital Stock.
--------------------------------------
If the Company:
(a) pays a dividend or makes a distribution on its New Common
Stock in shares of its New Common Stock;
(b) subdivides its outstanding shares of New Common Stock into
a greater number of shares;
(c) combines its outstanding shares of New Common Stock into a
smaller number of shares;
(d) makes a distribution on New Common Stock in shares of its
capital stock other than the New Common Stock; or
(e) issues by reclassification of New Common Stock any shares
of its capital stock;
then the exercise right and the Exercise Price in effect immediately prior to
such action shall be adjusted so that the holder of Warrants may receive upon
exercise of the Warrants the number of shares of capital stock of the Company
which it would have owned immediately following such action if it had
exercised the Warrants immediately prior to such action. The adjustment
shall become effective immediately after the record date in the case of a
distribution and immediately after the effective date in the case of a
combination or reclassification.
If, after an adjustment, the holder of Warrants may receive
shares of two or more classes of capital stock of the Company, the Company
and the holders of a majority of the Warrants shall mutually agree upon the
allocation of the adjusted exercise price between the classes of capital
stock. After such allocation, the exercise privilege and the Exercise Price
of each class of capital stock shall thereafter be subject to adjustment on
terms comparable to those applicable to New Common Stock in this Section 6.
6.2. Adjustment for Rights Issue. If the Company distributes any
rights, options or warrants to all holders of New Common Stock entitling
them for a period expiring within 60 days after the record date mentioned
below to purchase shares of New Common Stock at a price per share less than
the current market price per share on that record date, the Exercise Price
shall be adjusted in accordance with the formula:
( N x P )
-------
O + M
-------------------
W' = W x O + N
where
W' = the adjusted Exercise Price.
W = the then current Exercise Price.
O = the number of shares of New Common Stock outstanding on the
record date.
N = the number of additional shares of New Common Stock offered
or issuable on the exercise of the rights, options or
warrants.
P = the offering price per share of the additional shares
subject to the rights or warrants.
M = the current market price per share of New Common Stock on
the record date.
The adjustment shall be made successively whenever any such
rights, options or warrants are issued and shall become effective
immediately after the record date for the determination of stockholders
entitled to receive the rights, options or warrants.
If at the end of the period during which such warrants or rights
are exercisable, which such period shall not exceed 60 days, not all
warrants or rights shall have been exercised, the Exercise Price shall be
immediately readjusted to what it would have been if "N" in the above
formula had been the number of shares actually issued.
This Section 6.2 does not apply to:
(a) the Warrants issued by the Company pursuant to the
Restructuring, or
(b) options issued pursuant to the Company's Stock Award and
Incentive Plan or any similar plan.
6.3. Adjustment for Other Distributions. If the Company
distributes to all holders of New Common Stock any of its assets (other
than any cash dividends periodically paid to holders of New Common Stock
from profits or retained earnings of the Company, but only to the extent
such distributions are (i) on a per share basis, not in excess of [__]% of
the per share market price of the New Common Stock on the date such
distributions are made and (ii) made pursuant to a policy of quarterly cash
dividends adopted by the Company and publicly announced) or debt securities
or any rights or warrants to purchase assets, debt securities or other
securities of the Company, the Exercise Price shall be adjusted in
accordance with the formula:
M - F
-----
W' = W x M
where:
W' = the adjusted Exercise Price.
W = the then current Exercise Price.
M = the current market price per share of New Common Stock on
the record date mentioned below.
F = the aggregate fair market value (as determined by an
Appraiser chosen in accordance with Section 6.6), on the
record date, of the assets (including cash), securities,
rights or warrants so distributed divided by the number of
outstanding shares of New Common Stock on the record date;
provided, that, in the event that the value of F exceeds the value of M, or
in the event that the value of M exceeds the value of F by less than 10%, in
lieu of the foregoing adjustment, adequate provision shall be made so that
the holders of the Warrants shall receive, upon exercise of the Warrants and
payment of the exercise price therefor, a PRO RATA share of the aggregate
distribution based upon the maximum number of shares of New Common Stock at
the time issuable to such holders (determined without regard to whether the
Warrants are exercisable at such time).
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
distribution.
If at the end of the period during which any such warrants or
rights are exercisable, which such period shall not exceed 90 days, not all
of such warrants or rights shall have been exercised, the Exercise Price
shall be immediately readjusted to what it would have been if "F" in the
above formula had not included the fair market value on the record date of
the expired warrants or rights, but were still divided by the same number
of outstanding shares of New Common Stock.
This Section 6.3 does not apply to distributions of rights,
options or warrants referred to in Section 6.2.
6.4. Adjustment for New Common Stock Issue. If the Company issues
shares of New Common Stock for consideration per share less than the
current market price per share on the date the Company fixes the offering
price of such additional shares, the Exercise Price shall be adjusted in
accordance with the formula:
P
-
O + M
-----
W' = W x A
where:
W' = the adjusted Exercise Price.
W = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of
such additional shares.
M = the current market price per share on the date of issuance
of such additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such
issuance.
This Section 6.4 does not apply to:
(a) any of the transactions or distributions described in
Sections 6.2, 6.3 or 6.5,
(b) the exercise of the Warrants issued by the Company pursuant
to the Restructuring,
(c) the conversion or exchange of securities convertible or
exchangeable for New Common Stock and the exercise of
rights or warrants issued to the holders of New Common
Stock, in each case only if the issuance of such
securities, rights or warrants were subject to or expressly
exempted from the provisions of this Section 6,
(d) New Common Stock issued to directors, consultants, officers
or employees of the Company and its subsidiaries pursuant
to the Company's Stock Award and Incentive Plan or any
similar plans,
(e) issuances of New Common Stock pursuant to a BONA FIDE
public offering pursuant to a firm commitment underwriting,
or
(f) a transaction (including, without limitation, a
stock-for-stock merger) involving an arms-length purchase
(whether for cash or other consideration) of shares of New
Common Stock by a BONA FIDE third-party purchaser that is
not an Affiliate of the Company.
6.5. Adjustment for Convertible Securities Issue. If the Company
issues any securities convertible into or exchangeable or exercisable for
New Common Stock (other than the securities issued in transactions
described in Sections 6.2 and 6.3) for consideration per share of New
Common Stock initially deliverable upon conversion, exchange or exercise of
such securities less than the current market price per share on the date of
issuance of such securities, the Exercise Price shall be adjusted in
accordance with the formula:
P
-
O + M
-----
W' = W x O + D
where:
W' = the adjusted Exercise Price.
W = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities which are convertible into or
exchangeable or exercisable for New Common Stock.
P = the aggregate consideration received for the issuance of
such securities.
M = the current market price per share of New Common Stock on
the date of issuance of such securities.
D = the maximum number of shares deliverable upon conversion,
exchange or exercise of such securities at the initial
conversion, exchange or exercise rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
If all of the New Common Stock deliverable upon conversion,
exchange or exercise of such securities has not been issued when such
securities are no longer outstanding, then the Exercise Price shall
immediately be readjusted to the Exercise Price which would then be in effect
had the adjustment upon the issuance of such securities been made on the
basis of the actual number of shares of New Common Stock issued upon
conversion, exchange or exercise of such securities.
This Section 6.5 does not apply to:
(1) any of the transactions or distributions described in
Sections 6.2 and 6.3;
(2) issuances of securities convertible into or exchangeable
or exercisable for New Common Stock pursuant to a BONA
FIDE public offering pursuant to a firm commitment
underwriting;
(3) options to purchase shares of New Common Stock issued to
directors, consultants, officers or employees of the
Company and its subsidiaries pursuant to the Company's
Stock Award and Incentive Plan or any similar plans; or
(4) a transaction (including, without limitation, a
stock-for-stock merger) involving an arms-length purchase
(whether for cash or other consideration) of securities
convertible into or exchangeable or exerciseable for
shares of New Common Stock by a BONA FIDE third-party
purchaser that is not an Affiliate of the Company.
6.6. Market Price. The "current market price" per share of New
Common Stock on any date is the average of the Quoted Prices of the New
Common Stock for 15 consecutive trading days commencing 16 days before the
date in question. The "Quoted Price" of the New Common Stock is the last
reported sales price of the New Common Stock as reported by the New York
Stock Exchange, Inc., or if the New Common Stock is listed on another
national securities exchange, the last reported sales price of the New
Common Stock on such exchange which shall be for consolidated trading if
applicable to such exchange, or if neither so reported or listed, the last
reported bid price of the New Common Stock. In the absence of one or more
such quotations, the current market price shall be determined by mutual
agreement of the Company and the holders of a majority of the Warrants or,
in the absence of such mutual agreement, shall be determined in good faith
by a nationally recognized investment banking firm that is a member firm of
the NASD and independent of the Company and chosen in accordance with the
following sentence (an "Appraiser"). The Appraiser shall be chosen by
mutual agreement of the holders of a majority of the Warrants and the
Company; PROVIDED, that if there shall be a disagreement as to the
selection of any Appraiser, then each of the Company and the holders of a
majority of the Warrants shall choose one investment banking firm
satisfying the foregoing criteria and those two firms then shall agree upon
a third such investment banking firm who shall act as the Appraiser. If
applicable, in connection with the sale of units consisting of New Common
Stock and other securities, such investment bank shall take into
consideration the value of each component of such unit. If there shall be
more than one class of New Common Stock outstanding, the "current market
price" per share of New Common Stock shall be the highest of the "current
market prices" per share of such classes of New Common Stock.
6.7. Consideration Received. For purposes of any computation with
respect to consideration received pursuant to Sections 6.4 and 6.5, the
following shall apply:
(a) in the case of the issuance of shares of New Common Stock
for cash, the consideration shall be the amount of such
cash (provided that in no case shall any deduction be made
for any commissions, discounts or other expenses incurred
by the Company for any underwriting of the issue or
otherwise in connection therewith) plus, where the issuance
is pursuant to the exercise of an option, warrant or right,
all cash amounts paid to the Company for such option,
warrant or right at its issue, including without
limitation, any amount allocable to such option, warrant,
or right if issued together with other securities in a unit;
(b) in the case of the issuance of shares of New Common Stock
for a consideration in whole or in part other than cash,
the consideration other than cash shall be deemed to be the
fair market value thereof as determined by an Appraiser,
whose determination shall be given to the holders of the
Warrants; and
(c) in the case of the issuance of securities convertible into
or exchangeable for shares of New Common Stock, the
aggregate consideration received therefor shall be deemed
to be the consideration received by the Company for the
issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon
the conversion or exchange thereof (the consideration in
each case to be determined in the same manner as provided
in clauses (a) and (b) of this Section 6.7).
6.8. When Adjustment May Be Deferred. If the amount of any
adjustment of the Exercise Price required pursuant to this Section 6 would
be less than one percent (1%) of the Exercise Price in effect at the time
such adjustment is otherwise so required to be made, such amount shall be
carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with such amount
and any other amount or amounts so carried forward, shall aggregate at
least one percent (1%) of such Exercise Price. All calculations under this
Section 6 shall be made to the nearest cent or to the nearest share, as the
case may be.
6.9. When No Adjustment Required. No adjustment need be made for
(a) rights to purchase New Common Stock pursuant to a Company plan for
reinvestment of dividends, the Company's Stock Award and Incentive Plan any
similar plans, and (b) a change in the par value or no par value of Common
Stock; PROVIDED, that the Company shall not increase the par value to
exceed the Exercise Price. To the extent the Warrants become exercisable
into cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
6.10. Notice of Adjustment. Whenever an event occurs which
requires an adjustment to the Exercise Price or number of shares of Warrant
Shares, the Company shall promptly mail (first class) to the holders of the
Warrants a notice of such event and the computation of the adjustment. The
Company shall provide the holders of the Warrants with a certificate from
the Company's chief financial officer briefly stating the facts requiring
the adjustment and the manner of computing it.
6.11. Voluntary Reduction. The Company from time to time may
reduce the Exercise Price by any amount for any period of time if the
period is at least 20 days and if the reduction is irrevocable during the
period. A reduction of the Exercise Price pursuant to this Section 6.11
does not change or adjust the Exercise Price otherwise in effect for
purposes of Sections 6.1, 6.2, 6.3, 6.4 or 6.5. The Company in its
discretion may make such reductions in the Exercise Price in addition to
those required by this Section 6 as it considers to be advisable in order
that any event treated for federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
6.12. Notice of Certain Transactions. If the Company takes any
action that would require an adjustment pursuant to Sections 6.1, 6.2, 6.3,
6.4 or 6.5, the Company shall mail (first class) to the holders of the
Warrants a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease, liquidation or
dissolution or any other transaction or event requiring an adjustment in
the Exercise Price. The Company shall mail the notice at least 15 days
before such date; PROVIDED, HOWEVER, that in no event must the Company give
the holders of the Warrants notice prior to the public announcement of the
event requiring such adjustment. Failure to mail the notice or any defect
in it shall not affect the validity of the transaction.
6.13. Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. If the Company consolidates or merges with or into, or
transfers or leases all or substantially all its assets to, any person,
upon consummation of such transaction, the Warrants shall automatically
become exercisable for the kind and amount of securities, cash or other
assets that the holder of a Warrant would have owned immediately after the
consolidation, merger or transfer or lease if the holder had exercised the
Warrant immediately before the effective date of the transaction. Without
limiting the foregoing, to the extent that the holders of New Common Stock
are allowed to make an election in connection with any such transaction in
order to select the form of consideration into which their shares of New
Common Stock would be converted, upon the exercise by any holder of
Warrants of any of such holder's Warrants, such holder shall be entitled to
make a similar election. Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation
or merger if other than the Company, or the person to which such sale or
conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be
as nearly equivalent as may be practical to the adjustments provided for in
this Section. The successor Company shall mail to Warrant holders a notice
describing the supplemental Warrant Agreement.
If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement.
If this Section 6.13 applies to any transaction, Sections 6.1,
6.2, 6.3, 6.4 and 6.5 shall not apply to such transaction. The provisions
of this Section 6.13 shall similarly apply to successive consolidations,
mergers, sales or conveyances.
6.14. Adjustment to the Number of Shares Purchasable Upon
Exercise of Warrants; Exercise Price Not Less than Par Value. Upon each
adjustment of the Exercise Price pursuant to this Section 6, each Warrant
shall thereupon evidence the right to purchase that number of shares of New
Common Stock (calculated to the nearest hundredth of a share) obtained by
multiplying the number of shares of New Common Stock purchasable
immediately prior to such adjustment upon exercise of the Warrant by the
Exercise Price in effect immediately prior to such adjustment and dividing
the product so obtained by the Exercise Price in effect immediately after
such adjustment. The adjustment pursuant to this Section 6.14 to the number
of shares of New Common Stock purchasable upon exercise of a Warrant shall
be made each time an adjustment of the Exercise Price is made pursuant to
this Section 6 (or would be made but for the proviso in Section 6.3). In no
event shall the Exercise Price be adjusted below the par value per share of
the New Common Stock; PROVIDED, HOWEVER, that in the event such adjustment
would have been made but for this sentence, the number of shares issuable
upon exercise of a Warrant shall be adjusted in accordance with the
remainder of this Section 6.14 as though such adjustment in the Exercise
Price had been made.
6.15. Other Dilutive Events. In case any event shall occur as to
which the provisions of this Section 6 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by the Warrants in accordance with the essential intent and
principles of such sections, then, in each such case, the Company shall
make a good faith adjustment to the Exercise Price and number of shares of
Warrant Shares into which each Warrant is exercisable in accordance with
the intent of this Section 6.
6.16. Company Determination Final. Absent manifest error, any
determination that the Company or the Board of Directors of the Company
must make in good faith pursuant to Sections 6.3, 6.6 or 6.8, shall be
conclusive, if reasonable.
6.17. Form of Warrants. The Company may, at its option, issue new
warrant certificates evidencing Warrants in such form as may be approved by
its Board of Directors to reflect any adjustment or change in the Exercise
Price per Warrant Shares and the number or kind or class of shares or other
securities or property purchasable under the Warrant Certificates made in
accordance with the provisions of this Agreement.
7. NOTICES TO HOLDERS.
------------------
7.1. Notice of Adjustments. Whenever the number of shares of New
Common Stock for which a Warrant is exercisable, or whenever the price at
which a share of such New Common Stock may be purchased upon exercise of
the Warrants, shall be adjusted pursuant to Section 6, the Company shall
forthwith prepare a certificate to be executed by the chief financial
officer of the Company setting forth, in reasonable detail, the event
requiring the adjustment and the method by which such adjustment was
calculated, specifying the number of shares of New Common Stock for which a
Warrant is exercisable and describing the number and kind of any other
shares of stock or Other Property for which a Warrant is exercisable, and
any change in the purchase price or prices thereof, after giving effect to
such adjustment or change. The Company shall promptly cause a signed copy
of such certificate to be delivered to each Holder in accordance with
Section 14.1.
7.2. Notice of Corporate Action.
In case:
(a) of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or of
the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of New
Common Stock issuable upon exercise of the Warrants (other than a change in
par value, or from no par value, or as a result of a subdivision or
combination); or
(b) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, the Company shall cause to be given to each of the Holders at his or
her address appearing on the Warrant register, at least 10 days prior to the
applicable record date hereinafter specified, or promptly in the case of
events for which there is no record date, in accordance with Section 14.1, a
written notice stating the date on which any such consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up is expected to
become effective or consummated, and the date as of which it is expected that
holders of record of shares of New Common Stock shall be entitled to exchange
such shares for securities or other property, if any, deliverable upon,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up. The failure to give the notice required by this
Section 7.2 or any defect therein shall not affect the legality or validity
of any consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up, or the vote upon any action.
8. COVENANTS.
---------
The Company will (1) not increase the par value of any shares of
New Common Stock receivable upon the exercise of a Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in
par value and (2) take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of New Common Stock upon the exercise of any Warrant.
9. RESERVATION AND AUTHORIZATION OF NEW COMMON STOCK: PAR VALUE.
------------------------------------------------------------
From and after the Restructuring Date, the Company shall at all
times reserve and keep available for issue upon the exercise of Warrants
such number of its authorized but unissued shares of New Common Stock as
will be sufficient to permit the exercise in full of all outstanding
Warrants. All shares of New Common Stock which shall be so issuable, when
issued upon exercise of any Warrant and payment therefor in accordance with
the terms of this Warrant Agreement and such Warrant, shall be duly and
validly issued and fully paid and nonassessable, and not subject to
preemptive rights.
Before taking any action which would cause an adjustment reducing
the Exercise Price below the then par value, if any, of the shares of New
Common Stock issuable upon exercise of the Warrants, the Company shall take
any corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such
Common Stock at such adjusted Exercise Price.
10. STOCK AND WARRANT TRANSFER BOOKS
--------------------------------
The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the
exercise or transfer of any Warrant.
11. LOSS OR MUTILATION.
------------------
Upon receipt by the Company and the Warrant Agent from any Holder
of evidence reasonably satisfactory to them of the ownership of and the
loss, theft, destruction or mutilation of such Holder's Warrant and
indemnity reasonably satisfactory to them, and in case of mutilation upon
surrender and cancellation thereof, the Company will execute and the
Warrant Agent will countersign and deliver in lieu thereof a new Warrant of
like tenor to such Holder.
12. OFFICE OF COMPANY.
-----------------
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency (which may be the principal executive
offices of the Company) where the Warrants may be presented for exercise,
registration of transfer, division or combination as provided in this
Warrant Agreement. The Company shall initially maintain such an agency at
the Warrant Agent's Principal Offices.
13. WARRANT AGENT.
-------------
13.1. 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 must be eligible for
appointment as a successor Warrant Agent under the provisions of Section
13.3 hereof. If at the time such successor to the Warrant Agent shall
succeed to the agency created by this Warrant Agreement any of the Warrants
shall have been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the predecessor Warrant
Agent and deliver such Warrants so countersigned; and if 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 the Warrants shall have the full force provided in
the Warrants and in this Warrant Agreement. If at any time the name of the
Warrant Agent shall be changed and at such time Warrants shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrants so
countersigned; and if 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 Warrant
Agreement.
13.2. Certain Terms and Conditions Concerning the Warrant Agent.
The Warrant Agent undertakes the duties and obligations imposed by this
Warrant Agreement upon the following terms and conditions, by all of which
the Company and the Holders, by their acceptance of the Warrants, shall be
bound:
(a) Correctness of Statements. 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 by it. The
Warrant Agent assumes no responsibility with respect to the distribution of
the Warrants except as herein otherwise provided.
(b) Breach of Covenants. The Warrant Agent shall not be
responsible for any failure of the Company to comply with any of the
covenants contained in this Warrant Agreement or in the Warrants to be
complied with specifically by the Company.
(c) Performance of Duties. 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 or agents
(which shall not include its employees) and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) Reliance on Counsel. The Warrant Agent may consult at any
time with legal counsel satisfactory to it (who may be counsel for the
Company) and the Warrant Agent shall incur no liability or responsibility
to the Company or to any Holder in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion or
the advice of such counsel provided that such counsel shall have been
selected with due care.
(e) Proof of Actions Taken. Whenever in the performance of its
duties under this Warrant Agreement the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or established by
the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed conclusively to be proved and established by a
certificate signed by the President, a Vice President, the Secretary or an
Assistant Secretary of the Company and delivered to the Warrant Agent; and
such certificate shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the provisions of this
Warrant Agreement in reliance upon such certificate.
(f) Compensation. The Company agrees to pay the Warrant Agent
compensation as set forth in the fee schedule attached hereto as Exhibit B
for all services rendered by the Warrant Agent in the performance of its
duties under this Warrant 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 performance of its duties under
this Warrant Agreement, and to indemnify the Warrant Agent and save it
harmless against any and all liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant Agent in the
performance of its duties under this Warrant Agreement except as a result
of the Warrant Agent's gross negligence, willful misconduct, unlawful
conduct or bad faith.
(g) Legal Proceedings. The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or one or more
Holders shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses that 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 Warrant
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit
or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable
benefit of the Holders, as their respective rights or interests may appear.
(h) Other Transactions in Securities of the Company. The Warrant
Agent and any stockholder, director, officer or employee of the Warrant
Agent may buy, sell or deal in any of the Warrants or other securities of
the Company or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant
Agent under this Warrant Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
(i) Liability of Warrant Agent. The Warrant Agent shall act
hereunder solely as agent, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything that
it may do or refrain from doing in connection with this Warrant Agreement
except for its own gross negligence, willful misconduct, unlawful conduct
or bad faith.
(j) Reliance on Documents. The Warrant Agent will not incur any
liability or responsibility to the Company or to any Holder for any action
taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(k) Validity of Agreements. The Warrant Agent shall not be under
any responsibility in respect of the validity of this Warrant Agreement or
the execution and delivery hereof (except the due execution and delivery
hereof by the Warrant Agent) or in respect of the validity or execution of
any Warrant (except its countersignature and delivery thereof); nor shall
the Warrant Agent by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any Warrant Shares
(or other shares) to be issued pursuant to this Warrant Agreement or any
Warrant, or as to whether any Warrant Shares (or other shares) will, when
issued, be validly issued, fully paid and nonassessable, or as to the
Warrant Price or the number or amount of Warrant Shares or other securities
or other property issued upon exercise of any Warrant.
(l) Instructions from Company. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the
performance of its duties hereunder from the President, a Vice President,
the Secretary or any Assistant Secretary of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and
shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer or officers.
13.3. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Warrant Agreement by giving to the
Company 30 days advance notice in writing. The Warrant Agent may be removed
by like notice to the Warrant Agent from the Company. If the Warrant Agent
shall resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent, then any Holder
may apply to the Court for the appointment of a successor to the Warrant
Agent. Pending the appointment of the successor warrant agent, the Company
shall perform the duties of the Warrant Agent. Any successor warrant agent,
whether appointed by the Company or the Court, shall be a bank or trust
company, in good standing, incorporated under the laws of the United States
of America or any state thereof and having at the time of its appointment
as warrant agent a combined capital and surplus of at least $50,000,000.
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 any notice provided for in this Section 13.3,
however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Warrant Agent or the appointment of
the successor warrant agent, as the case may be. In the event of such
resignation or removal, the successor warrant agent shall mail, first
class, to each Holder, written notice of such removal or resignation and
the name and address of such successor warrant agent.
13.4. Disposition of Proceeds on Exercise of Warrants, Inspection
of Warrant Agreement. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the
Company all immediately available funds received by the Warrant Agent for
the purchase of the Warrant Shares through the exercise of such Warrants.
The Warrant Agent shall, upon request of the Company from time to time,
deliver to the Company such complete reports of registered ownership of the
Warrants and such complete records or transactions with respect to the
Warrants and the shares of New Common Stock as the Company may request. The
Warrant Agent shall also make available to the Company for inspection by
the Company's agents or employees, from time to time as the Company may
request, such original books of accounts and records maintained by the
Warrant Agent in connection with the issuance and exercise of Warrants
hereunder, such inspections to occur at the Warrant Agent's Principal
Office. The Warrant Agent shall keep copies of this Warrant Agreement and
any notices given or received hereunder available for inspection by the
Company or the Holders at the Warrant Agent's Principal Office. The Company
shall supply the Warrant Agent from time to time with such numbers of
copies of this Warrant Agreement as the Warrant Agent may request.
14. MISCELLANEOUS.
-------------
14.1. Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Warrant Agreement shall be sufficiently
given or made if in writing and either delivered in person with receipt
acknowledged or sent by registered or certified mail, return receipt
requested, postage prepaid or by telecopy and confirmed by telecopy
answerback, addressed as follows:
(a) If to any Holder or holder of Warrant Shares, at its last
known address appearing on the warrant register of the Company
maintained for such purpose.
(b) If to the Company, at:
▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Warrant Agent, at:
[Insert]
Attention:
--------------------
Telecopy Number:
--------------
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice, demand,
request, consent, approval, declaration, delivery or other communication
hereunder shall be deemed to have been duly given or served on the date on
which personally delivered, with receipt acknowledged, telecopied and
confirmed by telecopy answerback or three Business Days after the same shall
have been deposited in the United States mail, certified with return receipt
requested, whichever is earlier. Failure or delay in delivering copies of
any notice, demand, request, approval, declaration, delivery or other
communication to the Person designated above to receive a copy shall in no
way adversely affect the effectiveness of such notice, demand, request,
approval, declaration, delivery or other communication.
14.2. Successors and Assigns. All covenants and provisions of
this Warrant 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.
14.3. Amendment. This Warrant Agreement and the Warrants may only
be modified or amended or the provisions hereof and thereof waived with the
written consent of the Company, holders of 66-2/3% of the then issued and
outstanding New Common Stock, the Warrant Agent and the Majority Holders;
PROVIDED, that no Warrant may be modified or amended to reduce the number
of shares of New Common Stock for which such Warrant is exercisable or to
increase the price at which such shares may be purchased upon exercise of
such Warrant (other than giving effect to any adjustment as provided herein
and therein) without the prior written consent of the Holder thereof.
14.4. Third-Party Beneficiaries. All covenants and provisions of
this Warrant Agreement shall inure to the benefit of each holder from time
to time of New Common Stock.
14.5. Severability. Wherever possible, each provision of this
Warrant Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Warrant Agreement.
14.6. Headings. The headings used in this Warrant Agreement are
for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant Agreement.
14.7. Governing Law. This Warrant Agreement and the Warrants
shall be governed by the laws of the State of New York, without regard to
the provisions thereof relating to conflict of laws.
14.8. Counterparts. This Warrant 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 one and the same instrument.
IN WITNESS WHEREOF, each of the Company and the Warrant Agent has
caused this Warrant Agreement to be duly executed by its duly authorized
officers as of the date first above written.
▇▇▇▇▇▇ CORPORATION
By:_________________________________
Name:
Title:
_______________________, as
Warrant Agent
By:_________________________________
Name:
Title:
205531.05
EXHIBIT A
---------
[FORM OF FACE OF WARRANT CERTIFICATE]
WARRANT TO PURCHASE NEW COMMON STOCK
OF ▇▇▇▇▇▇ CORPORATION
--------------------------------------------------------------------------------
Warrant Certificate No.: Number of Warrants:
CUSIP No.
--------------------------------------------------------------------------------
See Reverse for Certain Definitions
Exercisable from and after __________ __, __________ until 5:00
p.m., New York City time on __________ __, 2005.
This Warrant Certificate certifies that [ ] or registered
assigns, is the registered holder of the number of Warrants set forth above
expiring at 5:00 p.m., New York City time, on __________ __, __________ or,
if such date is not a business day, the next succeeding business day (the
"Warrants") to purchase Common Stock, par value $1.00 per share (the "New
Common Stock"), of ▇▇▇▇▇▇ Corporation, a Delaware corporation (the
"Company"). The New Common Stock issuable upon exercise of Warrants is
hereinafter referred to as the "Warrant Shares." Subject to the immediately
succeeding paragraph, each Warrant entitles the holder upon exercise to
purchase from the Company on or before 5:00 p.m., New York City time, on
__________ __, 2005 or, if such date is not a business day, the next
succeeding business day, one share of New Common Stock, at the purchase
price of $6.2648 per share, each subject to adjustment as set forth herein
and in the Warrant Agreement dated as of _________, 1998 (the "Warrant
Agreement") by and between the Company and __________, a ___________
corporation, as warrant agent (the "Warrant Agent") in whole or in part on
and subject to the terms and conditions set forth herein and in the Warrant
Agreement. Such purchase shall be payable in lawful money of the United
States of America by certified or official bank check or any combination
thereof to the order of the Warrant Agent for the account of the Company at
the principal office of the Warrant Agent, but only subject to the
conditions set forth herein and in the Warrant Agreement. The number of
shares of New Common Stock for which each Warrant is exercisable, and the
price at which such shares may be purchased upon exercise of each Warrant,
are subject to adjustment upon the occurrence of certain events as set
forth in the Warrant Agreement. Whenever the number of shares of New Common
Stock for which a Warrant is exercisable, or the price at which a share of
such New Common Stock may be purchased upon exercise of the Warrants, is
adjusted pursuant to the Warrant Agreement, the Company shall cause to be
given to each of the registered holders of the Warrants at such holders'
addresses appearing on the warrant register written notice of such
adjustment by first class mail postage pre-paid.
No Warrant may be exercised before __________ p.m., New York City
time, on __________ __, 1998 or after 5:00 p.m., New York City time, on
__________ __, 2005 or, if such date is not a business day, the next
succeeding business day, and to the extent not exercised by such time such
Warrants shall become void.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse side hereof and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless countersigned
by the Warrant Agent.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE PROVISIONS THEREOF RELATING TO
CONFLICT OF LAWS.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be signed by its President and has caused its corporate seal
to be affixed hereunto or imprinted hereon.
Dated:
(Seal)
Attest: ▇▇▇▇▇▇ CORPORATION
___________________________________ By:___________________________________
Name:
Name:______________________________ Title:
Title: Secretary
COUNTERSIGNED:
_____________________, as Warrant Agent
By:____________________________________
Name:
Title:
[Authorized Signature]
205531.05
[FORM OF REVERSE OF WARRANT CERTIFICATE]
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of up to 2,216,979 Warrants expiring at 5:00 p.m.,
New York City time, on __________ __, 2005 or, if such date is not a
business day, the next succeeding business day, entitling the holder on
exercise to purchase shares of New Common Stock, par value $1.00 per share,
of the Company, and are issued or to be issued pursuant to the Warrant
Agreement, which Warrant Agreement is hereby incorporated by reference in
and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the Holders
(the words "Holders" or "Holder" meaning the registered holders or
registered holder of the Warrants). A copy of the Warrant Agreement may be
obtained by the Holder hereof upon written request to the Company.
Warrants may be exercised at any time on and after _____ p.m.,
New York City time, on __________ __, 1998 and on or before 5:00 p.m., New
York City time, on __________ __, 2005 or, if such date is not a business
day, the next succeeding business day. The Holder of Warrants evidenced by
this Warrant Certificate may exercise them by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the purchase
price by certified or official bank check or wire transfer or any
combination thereof to the order of the Warrant Agent for the account of
the Company and the other required documentation. In the event that upon
any exercise of Warrants evidenced hereby the number of Warrants exercised
shall be less than the total number of Warrants evidenced hereby, there
shall be issued to the Holder hereof or his assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that the number of shares of New
Common Stock for which each Warrant is exercisable, and the price at which
such shares may be purchased upon exercise of each Warrant, are subject to
adjustment upon the occurrence of certain events as set forth in the
Warrant Agreement. The Company shall not be required to issue any
fractional share of Common Stock upon the exercise of any Warrant, but the
Company shall round up or down to the nearest share of New Common Stock as
provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Warrant Agent by the registered Holder thereof in person or by such
Holder's legal representative or attorney duly authorized in writing, may
be exchanged, in the manner and subject to the limitations provided in the
Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee in
exchange for this Warrant Certificate, subject to the limitations provided
in the Warrant Agreement without charge except for any tax imposed in
connection therewith.
[ELECTION TO PURCHASE FORM]
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of __________ Shares of New Common
Stock of ▇▇▇▇▇▇ CORPORATION and herewith makes payment therefor, all at the
price and on the terms and conditions specified in this Warrant and the
Warrant Agreement and requests that certificates for the shares of New
Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
____________________ whose address is ____________________ and, if such
shares of New Common Stock shall not include all of the shares of New
Common Stock issuable as provided in this Warrant, that a new Warrant of
like tenor and date for the balance of the shares of New Common Stock
issuable hereunder be delivered to the undersigned.
______________________________________
(Name of Registered Owner)
______________________________________
(Signature of Registered Owner)
______________________________________
(Street Address)
______________________________________
(City) (State) (Zip Code)
NOTICE: The signature on this election to purchase must correspond with
the name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
[ASSIGNMENT FORM]
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned under this Warrant, with respect to
the number of shares of New Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
---------------------------- -----------------------------
and does hereby irrevocably constitute and appoint ____________________
attorney-in-fact to register such transfer on the books of ▇▇▇▇▇▇ CORPORATION
maintained for the purpose, with full power of substitution in the premises.
Dated:______________________________ Print Name:_____________________________
Signature:______________________________
Witness:________________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
EXHIBIT B
--------------------------------------------,
as Warrant Agent
Schedule of Fees
----------------
[To be inserted]