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EXHIBIT 10.65
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WARRANT AGREEMENT
between
KNOLOGY, INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK
Dated as of December 3, 1999
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS......................................................2
ARTICLE II ORIGINAL ISSUE OF WARRANTS...............................................7
Section 2.1. Form of Warrant Certificates.......................................7
Section 2.2. Restrictive Legends................................................9
Section 2.3. Execution and Delivery of Warrant Certificates....................11
Section 2.4. Certificated Warrants.............................................11
ARTICLE III EXERCISE PRICE, EXERCISE AND REPURCHASE OF WARRANTS....................12
Section 3.1. Exercise Price....................................................12
Section 3.2. Exercise; Restrictions on Exercise................................12
Section 3.3. Method of Exercise; Payment of Exercise Price.....................12
Section 3.4. Repurchase Offers.................................................14
ARTICLE IV ADJUSTMENTS.............................................................17
Section 4.1. Adjustments.......................................................17
Section 4.2. Notice of Adjustment..............................................25
Section 4.3. Statement on Warrants.............................................26
Section 4.4. Notice of Consolidation, Merger, Etc..............................26
Section 4.5. Fractional Interests..............................................26
Section 4.6. When Issuance or Payment May Be Deferred..........................27
Section 4.7. Initial Public Offering...........................................27
ARTICLE V DECREASE IN EXERCISE PRICE...............................................27
ARTICLE VI LOSS OR MUTILATION......................................................28
ARTICLE VII RESERVATION AND AUTHORIZATION OF PREFERRED STOCK......................28
ARTICLE VIII WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER......................29
Section 8.1. Transfer and Exchange.............................................29
Section 8.2. Book-Entry Provisions for the Global Warrants.....................29
Section 8.3. Special Transfer Provisions.......................................31
Section 8.4. Surrender of Warrant Certificates.................................35
ARTICLE IX WARRANT HOLDERS.........................................................35
Section 9.1. Warrant Holder Deemed Not a Shareholder...........................35
Section 9.2. Right of Action...................................................36
ARTICLE X REMEDIES.................................................................36
Section 10.1. Defaults.........................................................36
Section 10.2. Payment Obligations..............................................36
Section 10.3. Remedies; No Waiver..............................................36
ARTICLE XI THE WARRANT AGENT.......................................................36
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Section 11.1. Duties and Liabilities...........................................37
Section 11.2. Right to Consult Counsel.........................................38
Section 11.3. Compensation; Indemnification....................................38
Section 11.4. No Restrictions on Actions.......................................39
Section 11.5. Discharge or Removal; Replacement Warrant Agent..................39
Section 11.6. Successor Warrant Agent..........................................40
ARTICLE XII MISCELLANEOUS..........................................................40
Section 12.1. Monies Deposited with the Warrant Agent..........................40
Section 12.2. Payment of Taxes.................................................40
Section 12.3. No Merger, Consolidation or Sale of Assets of the Company........41
Section 12.4. Reports to Holders...............................................41
Section 12.5. Notices; Payment.................................................42
Section 12.6. Binding Effect...................................................42
Section 12.7. Counterparts.....................................................43
Section 12.8. Amendments.......................................................43
Section 12.9. Headings.........................................................43
Section 12.10. Preferred Stock Legend..........................................43
Section 12.11. Third Party Beneficiaries.......................................45
Section 12.12. Termination.....................................................45
Section 12.13. Governing Law...................................................45
EXHIBIT A FORM OF WARRANT CERTIFICATE
EXHIBIT B FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
EXHIBIT C-1 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEROR IN
CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED
INVESTORS
EXHIBIT C-2 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEREES IN
CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED
INVESTORS
EXHIBIT D FORM OF CERTIFICATE
APPENDIX A LIST OF FINANCIAL EXPERTS
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of December 3, 1999 (this
"Agreement"), between KNOLOGY, Inc., a Delaware corporation (the "Company"), and
United States Trust Company of New York (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, KNOLOGY Holdings, Inc., a Delaware corporation
("KHI") issued and sold a total of 444,100 units (the "KHI Units") each of which
consisted of one 11-7/8% Senior Discount Note due 2007 of KHI (each a "KHI
Note") issued pursuant to the provisions of an Indenture dated as of October 22,
1997 (the "Indenture") between KHI, as issuer, and United States Trust Company
of New York, as trustee, and one warrant (each, a "KHI Warrant"), each KHI
Warrant initially entitling the holder thereof to purchase .003734 shares of KHI
Preferred Stock, par value $.01 per share ("KHI Preferred Stock"), of KHI at an
exercise price of $.01 per share, of which 373,050 KHI Units were purchased by
the Placement Agents and 71,050 KHI Units were purchased by SCANA
Communications, Inc.
WHEREAS, pursuant to the terms of a Placement Agreement dated
October 16, 1997 (the "Placement Agreement"), among KHI and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and First Union Capital Markets Corp.,
as placement agents (the "Placement Agents"), KHI issued and sold to the
Placement Agents an aggregate of 373,050 KHI Warrants as part of 373,050 KHI
Units.
WHEREAS, the KHI Note and the KHI Warrant included in each
Unit became separately transferable in February 1998, upon the commencement of
an exchange offer with respect to the KHI Notes; and
WHEREAS, as part of a reorganization (the "Reorganization") in
which the Company will become (either directly or indirectly) the parent company
of KHI and four other corporations referred to as the TELCOs, the Company has
made an offer to the KHI stockholders and warrant holders (including holders of
the KHI Warrants) to exchange their KHI securities for securities of the
Company, as described more fully in a Confidential Information Statement of the
Company dated November 3, 1999.
WHEREAS, in the Reorganization the Company has offered to
exchange 600 shares of Preferred Stock (as defined below) for each share of KHI
Preferred Stock, and based on the same exchange ratio has offered to issue
Warrants (as defined below), each Warrant initially entitling the holder to
purchase 2.2404 shares of Preferred Stock at an exercise price of $.01 per
share, in exchange for the KHI Warrants;
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WHEREAS, the Company desires to engage the Warrant Agent to
act on the Company's behalf, and the Warrant Agent desires to act on behalf of
the Company, in connection with the issuance of the Warrant Certificates (as
defined below) and the other matters as provided herein, including, without
limitation, for the purpose of defining the terms and provisions of the Warrants
and the respective rights and obligations thereunder of the Company and the
record holders thereof (together with the holders of shares of Preferred Stock
(or other securities) received upon exercise thereof, the "Holders").
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements contained herein and in the Placement Agreement, the Company
and the Warrant Agent hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Members" has the meaning specified in Section 8.2
hereof.
"Auditors" means, at any time, the independent auditors of the
Company at such time.
"Board" means the board of directors of the Company from time
to time.
"Business Day" means a day except a Saturday, Sunday or other
day on which commercial banks in The City of New York, or in the city of the
corporate trust office of the Warrant Agent, are authorized by law to close.
"Cedel Bank" means Cedel Bank, societe anonyme.
"Certificated Warrants" has the meaning specified in Section
2.1 hereof.
"Certificate for Surrender" means the form on the reverse side
of the Warrant Certificate substantially in the form of Exhibit A hereto.
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"Commission" means the United States Securities and Exchange
Commission.
"Company" has the meaning specified in the preamble to this
Agreement.
"Current Market Value" has the meaning specified in Section
4.1(f) hereof.
"Default" has the meaning specified in Section 10.1 hereof.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Exercise Price" has the meaning specified in Section 3.1
hereof.
"Expiration Date" means October 21, 2007.
"Final Surrender Time" has the meaning specified in Section
3.4 hereof.
"Financial Expert" means one of the Persons listed in Appendix
A hereto.
"Global Warrants" has the meaning specified in Section 2.1
hereof.
"Holders" has the meaning specified in the recitals to this
Agreement.
"IAI Certificated Warrants" has the meaning specified in
Section 2.1 hereof.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Independent Financial Expert" means a Financial Expert that
does not (and whose directors, executive officers and 5% stockholders do not)
have a direct or indirect financial interest in the Company or any of its
subsidiaries or Affiliates, which has not been for at least five years and, at
the time it is called upon to give independent financial advice to the Company
is not (and none of its
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directors, executive officers or 5% stockholders is) a promoter, director, or
officer of the Company or any of its subsidiaries or Affiliates. The Independent
Financial Expert may be compensated and indemnified by the Company for opinions
or services it provides as an Independent Financial Expert.
"Institutional Accredited Investor" shall mean an institution
that is an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act.
"KHI" has the meaning specified in the recitals to this
Agreement.
"KHI Note" has the meaning specified in the recitals to this
Agreement.
"KHI Preferred Stock" has the meaning specified in the
recitals to this Agreement.
"KHI Unit" has the meaning specified in the recitals to this
Agreement.
"KHI Warrant" has the meaning specified in the recitals to
this Agreement.
"Legended Regulation S Global Warrant" has the meaning
specified in Section 2.1 hereof.
"Non-U.S. Person" means a person who is not a U.S. person as
defined in Rule 902 of Regulation S.
"Notice Date" has the meaning specified in Section 3.4 hereof.
"Officer" means, with respect to the Company, (i) the Chairman
of the Board, the Chief Executive Officer, the Chief Financial Officer and any
Vice President of the Company or (ii) the Treasurer or any Assistant Treasurer,
the Company's Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof; provided, however, that any such
certificate may be signed by any two of the Officers listed in clause (i) of the
definition thereof in lieu of being signed by one Officer listed in clause (i)
of the definition thereof and one Officer listed in clause (ii) of the
definition thereof.
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"Offshore Certificated Warrants" has the meaning specified in
Section 2.1 hereof.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Company.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Placement Agents" has the meaning specified in the recitals
to this Agreement.
"Placement Agreement" has the meaning specified in the
recitals to this Agreement.
"Preferred Stock" means the Series A Preferred Stock, par
value $0.01, of the Company and any other capital stock of the Company into
which such Preferred Stock may be converted, or reclassified or that may be
issued in respect of, in exchange for or in substitution of, such Preferred
Stock by reason of any stock splits, stock dividends, distributions, mergers,
consolidations or other like events (including automatic conversion of the
Preferred Stock pursuant to its terms).
"Private Placement Legend" means the legend set forth on the
Warrant Certificates in the form set forth in Section 2.2(a) hereof.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Warrant" has the meaning specified in
Section 2.1 hereof.
"Relevant Value" has the meaning specified in Section 3.4(d)
hereof.
"Reorganization " has the meaning specified in the recitals to
this Agreement.
"Repurchase Event" means and shall be deemed to occur on any
date when the Company (i) consolidates with or merges into or with another
Person (but only where the holders of the Preferred Stock (or any capital stock
issuable upon conversion of the Preferred Stock) receive consideration in
exchange for all or part of such stock), if the Preferred Stock (or other
securities) thereafter issuable upon exercise of the Warrants is not registered
under the Exchange Act or (ii) sells all or substantially all of its assets to
another Person, if the Preferred Stock (or other
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securities) thereafter issuable upon exercise of the Warrants is not registered
under the Exchange Act; provided that in each case a "Repurchase Event" shall
not be deemed to have occurred if the consideration for such transaction
consists solely of cash.
"Repurchase Notice" has the meaning specified in Section
3.4(a) hereof.
"Repurchase Obligation" has the meaning specified in Section
10.2 hereof.
"Repurchase Offer" means the Company's offer to repurchase the
Warrants in accordance with Section 3.4 hereof.
"Repurchase Price" has the meaning specified in Section 3.4(d)
hereof.
"Restricted Certificated Warrants" has the meaning specified
in Section 2.1 hereof.
"Restricted Global Warrant" has the meaning specified in
Section 2.1 hereof.
"Right" has the meaning specified in Section 4.1(c) hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Spread" means, with respect to any Warrant, the Current
Market Value of the Preferred Stock (or other securities) issuable upon exercise
of such Warrant, less the Exercise Price of such Warrant, in each case as
adjusted as provided herein.
"Subscription Form" means the form on the reverse side of the
Warrant Certificate substantially in the form of Exhibit A hereto.
"U.S. Certificated Warrants" has the meaning specified in
Section 2.1 hereof.
"Unlegended Regulation S Global Warrant" has the meaning
specified in Section 2.1 hereof.
"Valuation Date" means the date five Business Days prior to
the Notice Date.
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"Value Certificate" has the meaning specified in Section 3.4
hereof.
"Value Report" has the meaning specified in Section 4.1(k)
hereof.
"Warrant" has the meaning specified in the recitals to this
Agreement.
"Warrant Agent" has the meaning specified in the preamble to
this Agreement.
"Warrant Certificates" has the meaning specified in Section
2.1 hereof.
"Warrant Registration Rights Agreement" means the Warrant
Registration Rights Agreement, dated December 3, 1999, between the Company and
the Warrant Agent.
"Warrant Registration Statement" has the meaning specified in
Section 3 of the Warrant Registration Rights Agreement.
ARTICLE II
ORIGINAL ISSUE OF WARRANTS
Section 2.1. Form of Warrant Certificates. Certificates
representing the Warrants (the "Warrant Certificates") shall be substantially in
the form attached hereto as Exhibit A, shall be dated the date on which such
Warrant Certificates are countersigned by the Warrant Agent and shall have such
insertions as are appropriate or required or permitted by this Agreement and may
have such letters, numbers or other marks of identification and such legends and
endorsements stamped, printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed, or to conform to usage.
Warrants offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Warrant
Certificates in definitive, fully registered form, substantially in the form set
forth in Exhibit A (the "Restricted Global Warrant"), deposited with the Warrant
Agent, as custodian for, and registered in the name of the nominee for, the
Depositary, duly executed by the Company and countersigned by the Warrant Agent
as hereinafter provided. The aggregate number of Warrants represented by the
Restricted Global Warrant may from time to time be increased or decreased by
adjustments made on the records of the Warrant Agent, as custodian for the
Depositary, or its nominee, as provided in Section 2.4 and Section 8.3 hereof.
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Warrants offered and sold in offshore transactions in reliance
on Regulation S shall be issued initially in the form of one or more permanent
global Warrant Certificates in definitive, fully registered form, substantially
in the form set forth in Exhibit A (the "Legended Regulation S Global Warrant"),
deposited with the Warrant Agent, as custodian for, and registered in the name
of, the Depositary or its nominee for the accounts of Euroclear and Cedel Bank,
duly executed by the Company and countersigned by the Warrant Agent as
hereinafter provided. Prior to the date one year after the date hereof,
beneficial interests in the Legended Regulation S Global Warrant may be held
only through Euroclear and Cedel Bank. At any time on or after the date one year
after the date hereof, upon receipt by the Warrant Agent and the Company of a
certificate substantially in the form of Exhibit D hereto, one or more global
Warrant Certificates in registered form substantially in the form set forth in
Exhibit A (the "Unlegended Regulation S Global Warrants" and together with the
Legended Regulation S Global Warrant, the "Regulation S Global Warrant") shall
be deposited with the Warrant Agent, as custodian for, and registered in the
name of the nominee for, the Depositary, duly executed by the Company and
countersigned by the Warrant Agent as hereinafter provided, and the Warrant
Agent shall reflect on its books and records the date and a decrease in the
Legended Regulation S Global Warrant in an amount equal to the number of
Warrants evidenced by the Legended Regulation S Global Warrant transferred. The
aggregate number of Warrants represented by the Regulation S Global Warrants may
from time to time be increased or decreased by adjustments made on the records
of the Warrant Agent, as custodian for the Depositary, or its nominee, as
provided in Section 2.4 and Section 8.3 hereof.
Warrants offered and sold to Institutional Accredited
Investors who are not QIBs shall be issued initially in registered form
substantially in the form set forth in Exhibit A ("IAI Certificated Warrants").
Warrants issued pursuant to Section 2.4 and Section 8.2(b) in
exchange for interests in the Restricted Global Warrant shall be issued in the
form of permanent Warrant Certificates in registered form, substantially in the
form set forth in Exhibit A (the "Restricted Certificated Warrants" and,
together with IAI Certificated Warrants, the "U.S. Certificated Warrants").
Warrants issued pursuant to Section 2.4 and Section 8.2(b) in exchange for
interests in the Regulation S Global Warrant shall be issued in the form of
permanent Warrant Certificates in registered form, substantially in the form set
forth in Exhibit A (the "Offshore Certificated Warrants"). The Offshore
Certificated Warrants and the U.S. Certificated Warrants are sometimes herein
collectively referred to as the "Certificated Warrants". The Restricted Global
Warrant and the Regulation S Global Warrant are sometimes herein collectively
referred to as the "Global Warrants."
The definitive Warrant Certificates shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
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be produced in any other manner permitted by the rules of any securities
exchange on which the Warrants may be listed, all as determined by the officers
executing such Warrant Certificates, as evidenced by their execution of such
Warrant Certificates.
Section 2.2. Restrictive Legends. (a) The Warrant
Certificates, other than the Unlegended Regulation S Global Warrants, shall bear
substantially the following legend on the face thereof:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THESE WARRANTS IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS
IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR
OTHERWISE TRANSFER THESE WARRANTS EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE WARRANT AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE WARRANT AGENT) AND AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF
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AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THESE WARRANTS ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THESE
WARRANTS WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE WARRANT
AGENT. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
WARRANT AGENT AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A
PROVISION REQUIRING THE WARRANT AGENT TO REFUSE TO REGISTER ANY
TRANSFER OF THESE WARRANTS IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Warrant shall also bear the following
legend on the face thereof:
UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO KNOLOGY HOLDINGS,
INC. OR THE WARRANT AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE VIII OF THE
WARRANT AGREEMENT.
Section 2.3. Execution and Delivery of Warrant Certificates.
Warrant Certificates evidencing up to 444,100 Warrants, each Warrant to purchase
initially 2.2404 shares of Preferred Stock, may be executed, on or after the
date of this Agreement, by the Company and delivered to the Warrant Agent for
countersignature, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates upon the order and at the written direction of the
Company signed by its Chief Executive Officer or other duly authorized executive
officer to the purchasers thereof on the date of issuance. The Warrant Agent is
hereby authorized to countersign and deliver Warrant Certificates as required by
this Section 2.3 or by Section 3.3, Article VI or Article VIII hereof.
The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, Chief Executive Officer, Chief Financial
Officer, any Vice President or other duly authorized executive officer of the
Company either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be countersigned by manual signature of the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In case any officer
or director of the Company whose signature shall have been placed upon any of
the Warrant Certificates shall cease to be such officer or director of the
Company before countersignature by the Warrant Agent and the issuance and
delivery thereof, such Warrant Certificates may nevertheless be countersigned by
the Warrant Agent and issued and delivered with the same force and effect as
though such person had not ceased to be such officer or director of the Company.
Section 2.4. Certificated Warrants. Beneficial owners of
interests in a Global Warrant may receive Certificated Warrants (which, except
as set forth in Section 8.3(d), shall bear the Private Placement Legend) in
accordance with the procedures of the Warrant Agent and the Depositary;
provided, however, that beneficial owners of interests in a Regulation S Global
Warrant may not receive Offshore Certificated Warrants in exchange for such
interests prior to the date one year after the date hereof. In connection with
the execution and delivery of such Certificated Warrants, the Warrant Agent
shall reflect on its books and records the date and a decrease in the number of
Warrants represented by the relevant Global Warrant equal to the number of such
Certificated Warrants and the Company shall
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execute and the Warrant Agent shall countersign and deliver to said beneficial
owners one or more Certificated Warrants in an equal aggregate number.
ARTICLE III
EXERCISE PRICE, EXERCISE AND REPURCHASE OF WARRANTS
Section 3.1. Exercise Price. Each Warrant Certificate shall,
when countersigned by the Warrant Agent, initially entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase the number of shares of
Preferred Stock indicated thereon at a purchase price (the "Exercise Price") of
$.01 per share, subject to adjustment as provided in Section 4.1 and Article V
hereof.
Section 3.2. Exercise; Restrictions on Exercise. At any time
prior to 5:00 p.m., New York City time, on the Expiration Date, any outstanding
Warrants may be exercised on any Business Day; provided that the Warrant
Registration Statement is, at the time of exercise, effective and available for
the exercise of the Warrants or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act, and such securities are
qualified for sale or exempt from qualification under the applicable securities
laws of the states of other jurisdictions in which the various Holders reside.
Any Warrants not exercised by 5:00 p.m., New York City time, on the Expiration
Date shall expire and all rights of the Holders of such Warrants shall
terminate. Additionally, pursuant to Section 4.1(j)(ii) hereof, the Warrants
shall expire and all rights of the Holders of such Warrants shall terminate in
the event the Company merges or consolidates with or sells all or substantially
all of its property and assets to a Person (other than an Affiliate of the
Company) if the consideration payable to holders of Preferred Stock (or any
capital stock issuable upon conversion of the Preferred Stock) in exchange for
their Preferred Stock (or any capital stock issuable upon conversion of the
Preferred Stock) in connection with such merger, consolidation or sale consists
solely of cash or in the event of the dissolution, liquidation or winding up of
the Company.
Section 3.3. Method of Exercise; Payment of Exercise Price. In
order to exercise all or any of the Warrants represented by a Warrant
Certificate, the Holder thereof must surrender for exercise the Warrant
Certificate to the Warrant Agent at its corporate trust office address set forth
in Section 12.5 hereof, with the Subscription Form set forth on the reverse of
the Warrant Certificate duly executed, together with payment in full of the
Exercise Price then in effect for each share of Preferred Stock (or other
securities) issuable upon exercise of the Warrants as to which a Warrant is
exercised; such payment may be made in cash or by certified or official bank or
bank cashier's check payable to the order of the Company and shall be made to
the Warrant Agent at its corporate trust office address set forth in Section
12.5 hereof prior to the close of business on the date the Warrant Certificate
is surrendered to the Warrant Agent for exercise. Notwithstanding the foregoing,
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the Exercise Price may be paid by surrendering additional Warrants to the
Warrant Agent having an aggregate Spread equal to the aggregate Exercise Price
of the Warrants being exercised. All payments received upon exercise of Warrants
shall be delivered to the Company by the Warrant Agent as instructed in writing
by the Company. If less than all the Warrants represented by a Warrant
Certificate are exercised or surrendered (in connection with a cashless
exercise), such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants which were not
exercised or so surrendered shall be executed by the Company and delivered to
the Warrant Agent and the Warrant Agent shall countersign the new Warrant
Certificate, registered in such name or names as may be directed in writing by
the Holder, and shall deliver the new Warrant Certificate to the Person or
Persons entitled to receive the same. Global Warrants will be exercised in
accordance with the procedures of the Warrant Agent and the Depositary. Upon the
exercise of any Warrants following the surrender of a Warrant Certificate in
conformity with the foregoing provisions, the Warrant Agent shall instruct the
Company to transfer promptly to the Holder or, upon the written order of the
Holder of such Warrant Certificate, appropriate evidence of ownership of any
Preferred Stock or other security or property to which it is entitled as a
result of such exercise, registered or otherwise placed in such name or names as
may be directed in writing by the Holder, and to deliver such evidence of
ownership to the Person or Persons entitled to receive the same and fractional
shares, if any, or an amount in cash, in lieu of any fractional shares, as
provided in Section 4.5 hereof; provided that the Holder of such Warrant shall
be responsible for the payment of any transfer taxes required as the result of
any change in ownership of such Warrants or the issuance of such Preferred Stock
other than to the Holder of such Warrants and any such transfer shall comply
with applicable law. Upon the exercise of a Warrant or Warrants, the Warrant
Agent is hereby authorized and directed to requisition from any transfer agent
of the Preferred Stock (and all such transfer agents are hereby irrevocably
authorized to comply with all such requests) certificates (bearing the legend
set forth in Section 12.10 hereof, if applicable, unless a registration
statement with the Commission relating to such Preferred Stock shall then be in
effect or the Company and the Holder exercising such Warrant or Warrants
otherwise agree) for the necessary number of shares of Preferred Stock to which
said Holder may be entitled. The Company shall enter, or shall cause any
transfer agent of the Preferred Stock to enter, the name of the Person entitled
to receive the Preferred Stock upon exercise of the Warrants into the Company's
register of shareholders within 14 days of such exercise. A Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of the surrender for exercise, as provided above, of the Warrant
Certificate representing such Warrant and, for all purposes under this
Agreement, the Person entitled to receive any Preferred Stock deliverable upon
such exercise shall, as between such Person and the Company, be deemed to be the
Holder of record of such Preferred Stock as of the close of business on such
date and shall be entitled to receive, and the Warrant Agent shall deliver to
such Person, any Preferred Stock to
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which such Person would have been entitled had such Person been the registered
holder on such date.
Section 3.4. Repurchase Offers. (a) Notice of Repurchase
Event. Within five Business Days following the occurrence of a Repurchase Event,
the Company shall give notice (a "Repurchase Notice") to the Holders of the
Warrants and the Warrant Agent that such event has occurred.
(b) Repurchase Offers Generally. Following the occurrence
of a Repurchase Event, the Company shall offer to repurchase for cash all
outstanding Warrants pursuant to the provisions of this Section 3.4 (a
"Repurchase Offer"). The Company shall give notice of a Repurchase Offer in
accordance with Section 3.4(f) hereof. Each date on which the Company gives any
such notice is referred to as the "Notice Date." The Repurchase Offer shall
commence on the Notice Date for such Repurchase Offer and shall expire at 5:00
p.m., New York City time, on a date determined by the Company (the "Final
Surrender Time") that is at least 30 but not more than 60 days after the Notice
Date. Once a Repurchase Event has occurred, there is no limit on the number of
Repurchase Offers that the Company may make.
(c) Repurchase Offers. (i) In any Repurchase Offer, the
Company shall offer to purchase for cash at the Repurchase Price all Warrants
outstanding on the Notice Date for such Repurchase Offer that are properly
tendered to the Warrant Agent on or prior to the Final Surrender Time for such
Repurchase Offer.
(ii) Each Holder may, but shall not be obligated to, accept
such Repurchase Offer by tendering to the Warrant Agent, on or prior to the
Final Surrender Time for such Repurchase Offer, the Warrant Certificates
evidencing the Warrants such Holder desires to have repurchased in such offer,
together with a completed Certificate for Surrender in substantially the form
attached to the Warrant Certificate. A Holder may withdraw all or a portion of
the Warrants tendered to the Warrant Agent at any time prior to the Final
Surrender Time for such Repurchase Offer. If less than all the Warrants
represented by a Warrant Certificate shall be tendered, such Warrant Certificate
shall be surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants which shall not be tendered shall be executed by the Company
and delivered to the Warrant Agent and the Warrant Agent shall countersign the
new Warrant Certificate, registered in such name or names as may be directed in
writing by the Holder, and shall deliver the new Warrant Certificate to the
Person or Persons entitled to receive the same; provided that the Holder of such
Warrants shall be responsible for the payment of any transfer taxes required as
the result of any change in ownership of such Warrants.
(d) Repurchase Price. (i) The purchase price (the
"Repurchase Price") for each Warrant properly tendered to the Warrant Agent
pursuant to a
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Repurchase Offer shall be equal to the value (the "Relevant Value") on the
Valuation Date of the Preferred Stock issuable, and other securities or property
of the Company which would have been delivered, upon exercise of Warrants had
the Warrants been exercised (regardless of whether the Warrants are then
exercisable), less the Exercise Price in effect on the Notice Date for such
Repurchase Offer.
(ii) The Relevant Value of the Preferred Stock and other
securities or property issuable upon exercise of all the Warrants, on any
Valuation Date, shall be:
(1) (A) if the Preferred Stock (or other securities
issuable upon exercise of the Warrants or conversion of the Preferred
Stock) is registered under the Exchange Act, deemed to be the average
of the daily market prices (on the stock exchange that is the primary
trading market for the Preferred Stock (or other securities)) of the
Preferred Stock (or other securities) for the 20 consecutive trading
days immediately preceding such Valuation Date or (B) if the Preferred
Stock (or other securities) have been registered under the Exchange Act
for less than 20 consecutive trading days before such date, then the
average of the daily market prices for all of the trading days before
such date for which daily market prices are available, in the case of
each of (A) and (B), as certified to the Warrant Agent by the
President, any Vice President or the Chief Financial Officer of the
Company (the "Value Certificate"). The market price for each such
trading day shall be: (A) in the case of a security listed or admitted
to trading on any national securities exchange, the closing sales price
on such day, or if no sale takes place on such day, the average of the
closing bid and asked prices on such day, (B) in the case of a security
not then listed or admitted to trading on any national securities
exchange, the last reported sale price on such day, or if no sale takes
place on such day, the average of the closing bid and asked prices on
such day, as reported by a reputable quotation source designated by the
Company, (C) in the case of a security not then listed or admitted to
trading on any national securities exchange and as to which no such
reported sale price or bid and asked prices are available, the average
of the reported high bid and low asked prices on such day, as reported
by a reputable quotation service, or a newspaper of general circulation
in the Borough of Manhattan, City and State of New York customarily
published on each Business Day, designated by the Company, or, if there
shall be no bid and asked prices on such day, the average of the high
bid and low asked prices, as so reported, on the most recent day (not
more than 30 days prior to the date in question) for which prices have
been so reported and (D) if there are no bid and asked prices reported
during the 30 days prior to the date in question, the Relevant Value
shall be determined as if the Preferred Stock (or other securities)
were not registered under the Exchange Act; or
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(2) if the Preferred Stock (or other securities issuable
upon exercise of the Warrants or conversion of the Preferred Stock) is
not registered under the Exchange Act or if the value cannot be
computed under clause (1) above, deemed to be equal to the value set
forth in the Value Report (as defined below) as determined by an
Independent Financial Expert, which shall be selected by the Board in
accordance with Section 3.4(e) hereof, and retained on customary terms
and conditions, using one or more valuation methods that the
Independent Financial Expert, in its best professional judgment,
determines to be most appropriate but without giving effect to any
discount for lack of liquidity, the fact that the Company has no class
of equity securities registered under the Exchange Act or the fact that
the Preferred Stock (or other securities) or property issuable upon
exercise of the Warrants represent a minority interest in the Company.
The Company shall use its best efforts (including by selecting another
Independent Financial Expert) to cause the Independent Financial Expert
to deliver to the Company, with a copy to the Warrant Agent, within 45
days of the appointment of the Independent Financial Expert in
accordance with Section 3.4(e) hereof, a value report (the "Value
Report") stating the Relevant Value of the Preferred Stock (or other
securities) being valued as of the Valuation Date and containing a
brief statement as to the nature and scope of the methodologies upon
which the determination of Relevant Value was made. The Warrant Agent
shall have no duty with respect to the Value Report of any Independent
Financial Expert, except to keep it on file and available for
inspection by the Holders. The determination of the Independent
Financial Expert as to Relevant Value in accordance with the provisions
of this Section 3.4(d) shall be conclusive on all Persons. The
Independent Financial Expert shall consult with management of the
Company in order to allow management to comment on the proposed
Relevant Value prior to delivery to the Company of any Value Report of
the Independent Financial Expert.
(e) Selection of Independent Financial Expert. If clause
(d)(ii)(2) is applicable, the Board of Directors of the Company shall select an
Independent Financial Expert not more than five Business Days following a
Repurchase Event. Within two days after such selection of the Independent
Financial Expert, the Company shall deliver to the Warrant Agent a notice
setting forth the name of such Independent Financial Expert.
(f) Notice of Repurchase Offer. Each notice of a
Repurchase Offer (an "Offer Notice") given by the Company pursuant to Section
3.4(b)(i) shall be given by the Company directly to all Holders of the Warrants,
with a copy to the Warrant Agent, shall be given simultaneously with the
Repurchase Notice (or, in the event that the Relevant Value of the Preferred
Stock (or other securities) or property issuable upon exercise of the Warrants
cannot be determined pursuant to Section 3.4(d)(ii)(1), then such Offer Notice
shall be given within five Business Days after the Company receives the Value
Report with respect to such offer) and shall
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specify (A) the Final Surrender Time for such Repurchase Offer, (B) the manner
in which Warrants may be surrendered to the Warrant Agent for repurchase by the
Company, (C) the Repurchase Price at which the Warrants will be repurchased by
the Company, (D) if applicable, the name of the Independent Financial Expert
whose valuation of the Preferred Stock (or other securities) was utilized in
connection with determining such Repurchase Price and (E) that payment of the
Repurchase Price will be made by the Warrant Agent. Each such notice shall be
accompanied by a Certificate for Surrender for Repurchase Offer in substantially
the form attached to the Warrant Certificate and a copy of the Value Report, if
any.
(g) Payment for Warrants. Upon surrender for repurchase of
any Warrants in conformity with the provisions of this Section 3.4, the Warrant
Agent shall thereupon promptly notify the Company of such surrender. On or
before the Final Surrender Time for any Repurchase Offer, the Company shall
deposit with the Warrant Agent funds sufficient to make payment for the Warrants
tendered to the Warrant Agent and not withdrawn. After receipt of such deposit
from the Company, the Warrant Agent shall make payment, by delivering a check in
such amount as is appropriate, to such Person or Persons as it may be directed
in writing by the Holder surrendering such Warrants, net of any transfer taxes
required to be paid in the event that the check is to be delivered to a Person
other than the Holder.
(h) Compliance with Laws. Notwithstanding anything
contained in this Section 3.4, if the Company is required to comply with laws or
regulations in connection with making any Repurchase Offer, such laws,
regulations shall govern the making of such Repurchase Offer.
ARTICLE IV
ADJUSTMENTS
Section 4.1. Adjustments. Subject to Section 4.1(l) hereof,
the Exercise Price and the number of shares of Preferred Stock issuable upon
exercise of each Warrant shall be subject to adjustment from time to time as
follows:
(a) Divisions; Consolidations; Reclassifications. In case
the Company shall, on or before the Expiration Date, (i) issue any Preferred
Stock in payment of a dividend or other distribution with respect to its
Preferred Stock, (ii) subdivide its issued and outstanding Preferred Stock,
(iii) consolidate its issued and outstanding Preferred Stock into a smaller
number of shares, or (iv) reclassify or convert the Preferred Stock (other than
a reclassification in connection with a merger, consolidation or other business
combination which will be governed by Section 4.1(j)), then the number of shares
of Preferred Stock issuable upon exercise of each Warrant immediately prior to
the record date for such issue or distribution or the effective date of such
subdivision, consolidation, reclassification or conversion shall be adjusted so
that the Holder of each Warrant shall thereafter be entitled to receive the kind
and number of shares of Preferred Stock which such Holder would
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have been entitled to receive after the happening of any of the events described
above had such Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant to
this Section 4.1(a) shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
(b) Rights; Options; Warrants. In case the Company shall
issue rights, options, warrants or convertible or exchangeable securities (other
than an issuance of convertible or exchangeable securities subject to Section
4.1(a)) to all holders of its Preferred Stock, entitling them to subscribe for
or purchase Preferred Stock at a price per share which is lower than the then
Current Market Value per share of Preferred Stock, then the Company shall ensure
that at the time of such issuance, the same or a like offer or invitation is
made to the Holders of the Warrants as if their Warrants had been exercised on
the day immediately preceding the record date of such offer or invitation on the
terms (subject to any adjustment pursuant to Section 4.1(a) for a prior event)
on which such Warrants could have been exercised on such date; provided that if
the Board so resolves, the Company shall not be required to ensure that the same
offer or invitation is made to the Holders of the Warrants, but the number of
shares of Preferred Stock thereafter issuable upon the exercise of each Warrant
shall instead be adjusted and shall be determined by multiplying the number of
shares of Preferred Stock theretofore issuable upon exercise of each Warrant by
a fraction, the numerator of which shall be the sum of (i) the number of shares
of Preferred Stock outstanding immediately prior to the issuance of such rights,
options, warrants or convertible or exchangeable securities plus (ii) the number
of additional shares of Preferred Stock which may be purchased or subscribed for
upon exercise, exchange or conversion of such rights, options, warrants or
convertible or exchangeable securities and the denominator of which shall be the
sum of (x) the number of shares of Preferred Stock outstanding immediately prior
to the issuance of such rights, options, warrants or convertible or exchangeable
securities plus (y) the number of shares of Preferred Stock which the total
consideration received by the Company for such rights, options, warrants or
convertible or exchangeable securities so offered would purchase at the then
Current Market Value per share of Preferred Stock. Except as otherwise provided
above, such adjustment shall be made whenever such rights, options, warrants or
convertible or exchangeable securities are issued, and shall become effective
retroactively immediately after the record date for the determination of
shareholders entitled to receive such rights, options, warrants or convertible
or exchangeable securities.
(c) Issuance of Preferred Stock at Lower Values. In case
the Company shall sell and issue any shares of Preferred Stock or Right (as
defined below) (excluding (i) any Right issued in any of the transactions
described in Section 4.1(a) or (b) above, (ii) Preferred Stock issued pursuant
to (x) any Rights outstanding on the date of this Agreement or any Right issued
in any transaction
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described in Section 4.1(a) or (b) above or (y) a Right, if on the date such
Right was issued, the exercise, conversion or exchange price per share of
Preferred Stock (or any capital stock issuable upon conversion of the Preferred
Stock) with respect thereto was at least equal to the then Current Market Value
per share of Preferred Stock and (iii) any Preferred Stock or Right issued as
consideration when any corporation or business is acquired, merged into or
becomes part of the Company or a subsidiary of the Company in an arm's-length
transaction between the Company and a Person other than an Affiliate of the
Company) at a price per share of Preferred Stock (determined in the case of any
such Right, by dividing (x) the total consideration receivable by the Company in
consideration of the sale and issuance of such Right, plus the total
consideration payable to the Company upon exercise, conversion or exchange
thereof, by (y) the total number of shares of Preferred Stock covered by such
Right) that is lower than the Current Market Value per share of Preferred Stock
in effect immediately prior to such sale or issuance, then the number of shares
of Preferred Stock thereafter issuable upon the exercise of each Warrant shall
be determined by multiplying the number of shares of Preferred Stock theretofore
issuable upon exercise of such Warrant by a fraction, the numerator of which
shall be the number of shares of Preferred Stock outstanding immediately after
such sale or issuance and the denominator of which shall be the number of shares
of Preferred Stock outstanding immediately prior to such sale or issuance plus
the number of shares of Preferred Stock which the aggregate consideration
received (determined as provided below) for such sale or issuance would purchase
at such Current Market Value per share of Preferred Stock. For purposes of this
Section 4.1(c), the Preferred Stock which the holder of any such Right shall be
entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance and the consideration
received by the Company therefor shall be deemed to be the consideration
received by the Company for such Right, plus the consideration or premiums
stated in such Right to be paid for the Preferred Stock covered thereby. In case
the Company shall sell and issue any Right together with one or more other
securities as part of a unit at a price per unit, then in determining the "price
per share of Preferred Stock" and the "consideration received by the Company"
for purposes of the first sentence of this Section 4.1(c), the Board shall
determine, in good faith, the fair value of the Right then being sold as part of
such unit. For purposes of this paragraph, a "Right" shall mean any right,
option, warrant or convertible or exchangeable security containing the Right to
subscribe for or acquire one or more shares of Preferred Stock, excluding the
Warrants. This Section 4.1(c) shall not apply to: (i) the exercise of Warrants,
or the conversion or exchange of other securities convertible or exchangeable
for Preferred Stock; or (ii) Preferred Stock issued upon the exercise of Rights
or warrants issued to all holders of Preferred Stock.
(d) Distributions of Debt, Assets, Subscription Rights or
Convertible Securities. In case the Company shall make a distribution to all
holders of its Preferred Stock of evidences of its indebtedness, or assets, or
other distributions (excluding any issuance of Preferred Stock referred to in
Section 4.1(a) above and
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excluding distributions in connection with the dissolution, liquidation or
winding-up of the Company which shall be governed by Section 4.1(j) and
distributions of securities referred to in Section 4.1(a), Section 4.1(b) or
Section 4.1(c)), then, in each case, the number of shares of Preferred Stock
issuable after such record date upon the exercise of each Warrant shall be
determined by multiplying the number of shares of Preferred Stock issuable upon
the exercise of such Warrant immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Value per share of
Preferred Stock immediately prior to the record date for such distribution and
the denominator of which shall be the Current Market Value per share of
Preferred Stock immediately prior to the record date for such distribution less
the then fair value (as determined in good faith by the Board) of the evidences
of its indebtedness, or assets or other distributions so distributed
attributable to one share of Preferred Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on the date
of distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(e) Expiration of Rights, Options and Conversion
Privileges. Upon the expiration of any rights, options, warrants or conversion
or exchange privileges (including, without limitation, any Rights) that have
previously resulted in an adjustment hereunder, if any thereof shall not have
been exercised, exchanged or converted, the Exercise Price and the number of
shares of Preferred Stock (or any capital stock issuable upon conversion of the
Preferred Stock) issuable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter, upon any future exercise, be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (i) the only
shares of Preferred Stock so issued were the shares of Preferred Stock (or any
capital stock issuable upon conversion of the Preferred Stock), if any, actually
issued or sold upon the exercise, exchange or conversion of such rights,
options, warrants or conversion or exchange rights (including, without
limitation, any Rights) and (ii) such Preferred Stock (or any capital stock
issuable upon conversion of the Preferred Stock), if any, were issued or sold
for the consideration actually received by the Company upon such exercise,
exchange or conversion plus the consideration, if any, actually received by the
Company for issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights (including, without limitation, any Rights)
whether or not exercised.
(f) Current Market Value. For the purposes of any
computation under this Article IV, the "Current Market Value" of any security at
any date herein specified shall be:
(i) if the security is not registered under the Exchange
Act, the value of the security (1) most recently determined as of a
date within the six months preceding such date by an Independent
Financial Expert selected by
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the Company in accordance with the criteria for such valuation set out
in Section 4.1(k), or (2) if no such determination shall have been made
within such six-month period or if the Company so chooses, determined
as of such a date by an Independent Financial Expert selected by the
Company in accordance with the criteria for such valuation set out in
Section 4.1(k), or
(ii) if the security is registered under the Exchange Act,
the average of the daily market prices of the security for the 20
consecutive trading days immediately preceding such date or, if the
security has been registered under the Exchange Act for less than 20
consecutive trading days before such date, then the average of the
daily market prices for all of the trading days before such date for
which daily market prices are available. The market price for each such
trading day shall be: (A) in the case of a security listed or admitted
to trading on any national securities exchange, the closing sales
price, regular way, on such day, or if no sale takes place on such day,
the average of the closing bid and asked prices on such day on the
principal national securities exchange on which such security is listed
or admitted, as determined by the Board, in good faith, (B) in the case
of a security not then listed or admitted to trading on any national
securities exchange, the last reported sale price on such day, or if no
sale takes place on such day, the average of the closing bid and asked
prices on such day, as reported by a reputable quotation source
designated by the Company, (C) in the case of a security not then
listed or admitted to trading on any national securities exchange and
as to which no such reported sale price or bid and asked prices are
available, the average of the reported high bid and low asked prices on
such day, as reported by a reputable quotation service, or a newspaper
of general circulation in the Borough of Manhattan, City and State of
New York customarily published on each Business Day, designated by the
Company, or, if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the
most recent day (not more than 30 days prior to the date in question)
for which prices have been so reported and (D) if there are no bid and
asked prices reported during the 30 days prior to the date in question,
the Current Market Value of the security shall be determined as if the
security were not registered under the Exchange Act.
(g) Consideration Received. For purposes of any
computation respecting consideration received pursuant to this Section 4.1, the
following shall apply:
(i) in the case of the issuance of Preferred 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
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incurred by the Company for any underwriting of the issue or otherwise
in connection therewith;
(ii) in the case of the issuance of Preferred 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 in good faith by the Board (irrespective of the accounting
treatment thereof), whose determination shall be conclusive and
described in reasonable detail in a board resolution which shall be
provided as soon as practicable thereafter to the Warrant Agent; and
(iii) in the case of the issuance of rights, options,
warrants or securities convertible into or exchangeable for Preferred
Stock (including, without limitation, any Rights), the aggregate
consideration received therefor shall be deemed to be the consideration
received by the Company for the issuance of such rights, options,
warrants or securities convertible into or exchangeable for Preferred
Stock, plus the additional minimum consideration, if any, to be
received by the Company upon the exercise, conversion or exchange
thereof (the consideration in each case to be determined in the same
manner as provided in clauses (i) and (ii) of this Section 4.1(g)).
(h) De Minimis Adjustments. No adjustment in the number of
shares of Preferred Stock issuable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the number of shares of Preferred Stock issuable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this Section
4.1(h) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations shall be made to the
nearest ten-thousandth of a share.
(i) Adjustment of Exercise Price. Whenever the number of
shares of Preferred Stock issuable upon the exercise of each Warrant is
adjusted, as herein provided, the Exercise Price per share of Preferred Stock
payable upon exercise of such Warrant shall be adjusted (calculated to the
nearest $.01) so that it shall equal the price determined by multiplying such
Exercise Price immediately prior to such adjustment by a fraction the numerator
of which shall be the number of shares of Preferred Stock issuable upon the
exercise of each Warrant immediately prior to such adjustment and the
denominator of which shall be the number of shares of Preferred Stock so
issuable immediately thereafter. Following any adjustment to the Exercise Price
pursuant to this Article IV, the amount payable, when adjusted, shall never be
less than the par value per share of Preferred Stock at the time of such
adjustment.
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If after an adjustment, a Holder of a Warrant upon exercise of
it may receive shares of two or more classes in the capital of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
such classes of shares in a manner that the Board deems fair and equitable to
the Holders. After such allocation, the exercise privilege and the Exercise
Price of each class of shares shall thereafter be subject to adjustment on terms
comparable to those applicable to the Preferred Stock in this Article IV.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(j) Consolidation, Merger, Etc. (i) Subject to the
provisions of Subsection (ii) below of this Section 4.1(j), in case of the
consolidation of the Company with, or merger of the Company with or into, or of
the sale of all or substantially all of the properties and assets of the Company
to, any Person, and in connection therewith consideration is payable to holders
of Preferred Stock (or other securities or property issuable upon exercise of
Warrants) in exchange therefor, the Warrants shall remain subject to the terms
and conditions set forth in this Agreement and each Warrant shall, after such
consolidation, merger or sale, entitle the Holder to receive upon exercise the
number of shares in the capital stock or other securities or property (including
cash) of or from the Person resulting from such consolidation or surviving such
merger or to which such sale shall be made or of the parent company of such
Person, as the case may be, that would have been distributable or payable on
account of the Preferred Stock if such Holder's Warrants had been exercised
immediately prior to such merger, consolidation or sale (or, if applicable, the
record date therefor); and in any such case the provisions of this Agreement
with respect to the rights and interests thereafter of the Holders of Warrants
shall be appropriately adjusted by the Board in good faith so as to be
applicable, as nearly as may reasonably be, to any shares, other securities or
any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company
merges or consolidates with, or sells all or substantially all of its property
and assets to, another Person (other than an Affiliate of the Company) and
consideration is payable to holders of Preferred Stock in exchange for their
Preferred Stock in connection with such merger, consolidation or sale which
consists solely of cash, or (y) in the event of the dissolution, liquidation or
winding up of the Company, then the Holders of Warrants shall be entitled to
receive distributions on the date of such event on an equal basis with holders
of Preferred Stock (or other securities issuable upon exercise of the Warrants)
as if the Warrants had been exercised immediately prior to such event, less the
Exercise Price. Upon receipt of such payment, if any, the rights of a Holder
shall terminate and cease and such Holder's Warrants shall expire. If the
Company has made a Repurchase Offer that has not expired at the time of such
transaction, the holders of the Warrants will be entitled to receive the higher
of (i) the amount payable to the holders of the Warrants described above and
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(ii) the Repurchase Price payable to the holders of the Warrants pursuant to
such Repurchase Offer. In case of any such merger, consolidation or sale of
assets, the surviving or acquiring Person and, in the event of any dissolution,
liquidation or winding up of the Company, the Company shall deposit promptly
with the Warrant Agent the funds, if any, necessary to pay the Holders of the
Warrants. After receipt of such deposit from such Person or the Company and
after receipt of surrendered Warrant Certificates, the Warrant Agent shall make
payment by delivering a check in such amount as is appropriate (or, in the case
of consideration other than cash, such other consideration as is appropriate) to
such Person or Persons as it may be directed in writing by the Holder
surrendering such Warrants.
(k) If required pursuant to Section 4.1(f)(i), the Current
Market Value shall be deemed to be equal to the value set forth in the Value
Report as determined by an Independent Financial Expert, which shall be selected
by the Board in its sole discretion, and retained on customary terms and
conditions, using one or more valuation methods that the Independent Financial
Expert, in its best professional judgment, determines to be most appropriate.
The Company shall use its best efforts (including by selecting another
Independent Financial Expert) to cause the Independent Financial Expert to
deliver to the Company, with a copy to the Warrant Agent, within 45 days of the
appointment of the Independent Financial Expert, a Value Report stating the
value of the Preferred Stock and other securities or property of the Company, if
any, being valued as of the Valuation Date and containing a brief statement as
to the nature and scope of the methodologies upon which the determination of
value was made. The Warrant Agent shall have no duty with respect to the Value
Report of any Independent Financial Expert, except to keep it on file and
available for inspection by the Holders. The determination as to Current Market
Value in accordance with the provisions of this Section 4.1(k) shall be
conclusive on all Persons. The Independent Financial Expert shall consult with
management of the Company in order to allow management to comment on the
proposed value prior to delivery to the Company of any Value Report.
(l) When No Adjustment Required. No adjustment need be
made for:
(i) grants or exercises of Rights granted to employees of
the Company or any of its subsidiaries or Preferred Stock issued or
granted to such employees, whether or not upon the exercise, exchange
or conversion of any such Rights (to the extent that all such
securities do not have an aggregate value in excess of 15% of the
equity value of the Company on a fully diluted basis, as determined in
good faith by the Board);
(ii) options, warrants or other agreements or rights to
purchase capital stock of the Company entered into prior to the date of
the issuance of the Warrants;
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(iii) rights to purchase Preferred Stock pursuant to a
Company plan for reinvestment of dividends or interest;
(iv) a change in the par value (including a change from par
value to no par value or vice versa) of the Preferred Stock;
(v) bona fide public offerings or private placements
pursuant to Section 4(2) of the Securities Act, Regulation D thereunder
or Regulation S, involving at least one investment bank of national
reputation, if (i) in the case of any security trading on any national
securities exchange or in the over the counter market, or of a security
directly or indirectly convertible or exchangeable for any such
security (the latter security being a "Reference Security"), such
security (or the Reference Security as applicable) is sold to investors
at a price at least equal to the closing sale, bid or ask price
(whichever is customary) of such security (or the Reference Security as
applicable) on the date of the public offering or private placement, or
(ii) the security or Reference Security is issued as part of a public
offering or a private placement of debt securities; and
(vi) issuances of up to an aggregate of 60,000 shares of
Preferred Stock in transactions, the primary purpose of which, in the
good faith opinion of the Board evidenced by Board resolution, is not
to raise capital for the Company (such as settlements of disputes,
severance payments for employees, and similar matters).
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
Section 4.2. Notice of Adjustment. Whenever the number of
shares of Preferred Stock issuable upon the exercise of each Warrant or the
Exercise Price is adjusted, as herein provided, the Company shall cause the
Warrant Agent promptly to mail, at the expense of the Company, to each Holder
notice of such adjustment or adjustments and shall deliver to the Warrant Agent
a certificate of the Auditors setting forth the number of shares of Preferred
Stock issuable upon the exercise of each Warrant and the Exercise Price after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Such certificate shall be conclusive evidence of the correctness of such
adjustment except in the case of manifest error. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same,
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours upon reasonable notice. The Warrant Agent shall not at
any time be under any duty or responsibility to any Holders to determine whether
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any facts exist which may require any adjustment of the Exercise Price or the
number of shares of Preferred Stock issuable on exercise of the Warrants or any
of the other adjustments set forth in Section 4.1, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment, or the validity or value (or the kind or
amount) of any Preferred Stock which may be issuable on exercise of the
Warrants. The Warrant Agent shall not be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any Preferred
Stock or share certificates upon the exercise of any Warrant.
Section 4.3. Statement on Warrants. Irrespective of any
adjustment in the Exercise Price or the number or kind of shares issuable upon
the exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrants initially issuable pursuant to this Agreement.
Section 4.4. Notice of Consolidation, Merger, Etc. In case at
any time after the date hereof and prior to 5:00 p.m., New York City time, on
the Expiration Date, there shall be (i) any consolidation or merger involving
the Company or sale, transfer or other disposition of all or substantially all
of the Company's property, assets or business (except a merger or other
reorganization in which the Company shall be the surviving corporation and
holders of Preferred Stock (or any capital stock issuable upon conversion of the
Preferred Stock) receive no consideration in respect of their shares) or (ii)
any other transaction contemplated by Section 4.1(j)(ii) above, then, in any one
or more of such cases, the Company shall cause to be mailed to the Warrant Agent
and shall cause the Warrant Agent to mail, at the Company's expense, to each
Holder of a Warrant, at the earliest practicable time (and, in any event, not
less than 20 days before any date set for definitive action), notice of the date
on which such reorganization, sale, consolidation, merger, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also set forth such facts as shall indicate the effect of such action (to
the extent such effect may be known at the date of such notice) on the Exercise
Price and the kind and amount of the Preferred Stock and other securities, money
and other property deliverable upon exercise of the Warrants. Such notice shall
also specify the date as of which the holders of record of the Preferred Stock
or other securities or property issuable upon exercise of the Warrants or
conversion of the Preferred Stock shall be entitled to exchange their shares for
securities, money or other property deliverable upon such reorganization, sale,
consolidation, merger, dissolution, liquidation or winding up, as the case may
be.
Section 4.5. Fractional Interests. The Company may but shall
not be required to issue fractional shares of Preferred Stock upon the exercise
of Warrants. If more than one Warrant shall be presented for exercise in full at
the same time by the same Holder, the number of full shares of Preferred Stock
which shall be issuable upon such exercise thereof shall be computed on the
basis of the aggregate
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number of shares of Preferred Stock issuable on exercise of the Warrants so
presented. If any fraction of a shares of Preferred Stock would, except for the
provisions of this Section 4.5, be issuable on the exercise of any Warrant (or
specified portion thereof), the Company may, at its option, pay an amount in
cash calculated by it to be equal to the then Current Market Value per share of
Preferred Stock multiplied by such fraction computed to the nearest whole cent.
Section 4.6. When Issuance or Payment May Be Deferred. In any
case in which this Article IV shall require that an adjustment in the Exercise
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event (i) issuing to the holder
of any Warrant exercised after such record date the Preferred Stock and other
shares in the capital of the Company, if any, issuable upon such exercise over
and above the Preferred Stock and other shares in the capital of the Company, if
any, issuable upon such exercise and (ii) paying such holder any amount in cash
in lieu of a fractional share; provided, however, that the Company shall deliver
to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such
Holder's right to receive such additional Preferred Stock, other shares and cash
upon the occurrence of the event requiring such adjustment.
Section 4.7. Initial Public Offering. Notwithstanding anything
to the contrary herein contained, if the Company conducts an initial public
offering of equity securities (other than nonconvertible preferred shares,
Preferred Stock or any capital stock issuable upon conversion of the Preferred
Stock), the Company will give the Holders the opportunity to convert Warrants
into warrants to purchase such equity securities and to convert Preferred Stock
(or any capital stock issuable upon conversion of the Preferred Stock) or such
other securities that have been received by the Holders upon the exercise of
Warrants into such equity securities. Such conversion opportunity will be on
terms and conditions determined to be fair and reasonable by the Company's Board
of Directors.
Section 4.8. Other Adjustments. The number of shares of
capital stock issuable upon conversion of the Preferred Stock shall be subject
to adjustment from time to time in a manner and or terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Stock contained in
this Article IV.
ARTICLE V
DECREASE IN EXERCISE PRICE
The Board, in its sole discretion, shall have the right at any
time, or from time to time, to decrease the Exercise Price of the Warrants
and/or increase the number of shares issuable upon the exercise of the Warrants.
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ARTICLE VI
LOSS OR MUTILATION
Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity or bond satisfactory to
them and (in the case of mutilation) upon surrender and cancellation thereof,
then, in the absence of notice to the Company or the Warrant Agent that the
Warrants represented thereby have been acquired by a bona fide purchaser, the
Company shall execute and the Warrant Agent shall countersign and deliver to the
registered Holder of the lost, stolen, destroyed or mutilated Warrant
Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of
the same tenor and for a like aggregate number of Warrants. Upon the issuance of
any new Warrant Certificate under this Article VI, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every new Warrant
Certificate executed and delivered pursuant to this Article VI in lieu of any
lost, stolen or destroyed Warrant Certificate shall constitute a contractual
obligation of the Company whether or not the allegedly lost, stolen or destroyed
Warrant Certificates shall be at any time enforceable by anyone and shall be
entitled to the benefits of this Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Article VI are exclusive and shall preclude (to the extent
lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen, or destroyed Warrant Certificates.
ARTICLE VII
RESERVATION AND AUTHORIZATION OF PREFERRED STOCK
The Company shall at all times reserve and keep available such
number of its authorized but unissued Preferred Stock deliverable upon exercise
of the Warrants as will be sufficient to permit the exercise in full of all
outstanding Warrants and will cause appropriate evidence of ownership of such
Preferred Stock to be delivered to the Warrant Agent upon its request for
delivery thereof upon the exercise of the Warrants. The Company covenants that
all shares of Preferred Stock of the Company that may be issued upon the
exercise of the Warrants will, upon issuance, be duly authorized, validly
issued, fully paid and not subject to any calls for funds and free from
preemptive rights and all taxes, liens, charges and security interests with
respect to the issue thereof.
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ARTICLE VIII
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
Section 8.1. Transfer and Exchange. The Warrant Certificates
shall be issued in registered form only. The Warrant Agent shall keep at its
office a register for the registration of Warrant Certificates and transfers or
exchanges of Warrant Certificates as herein provided and other appropriate data
as determined by the Warrant Agent. The Company shall, upon reasonable notice to
the Warrant Agent, have access to such register during the Warrant Agent's
regular business hours. All Warrant Certificates issued upon any registration of
transfer or exchange of Warrant Certificates shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such
registration of transfer or exchange.
A Holder may transfer its Warrants only by written application
to the Warrant Agent stating the name of the proposed transferee and otherwise
complying with the terms of this Agreement. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Warrant Agent in the
register. Prior to the registration of any transfer of Warrants by a Holder as
provided herein, the Company, the Warrant Agent, and any agent of the Company
may treat the person in whose name the Warrants are registered as the owner
thereof for all purposes and as the person entitled to exercise the rights
represented thereby, any notice to the contrary notwithstanding. Furthermore,
any holder of a Global Warrant shall, by acceptance of such Global Warrant,
agree that transfers of beneficial interests in such Global Warrant may be
effected only through a book-entry system maintained by the holder of such
Global Warrant (or its agent), and that ownership of a beneficial interest in
the Warrants represented thereby shall be required to be reflected in a
bookentry. When Warrant Certificates are presented to the Warrant Agent with a
request to register the transfer or to exchange them for an equal amount of
Warrants, the Warrant Agent shall register such transfer or make such exchange
as requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall execute Warrant
Certificates at the Warrant Agent's request. No service charge shall be made for
any registration of transfer or exchange of Warrants, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer of
Warrants.
Section 8.2. Book-Entry Provisions for the Global Warrants.
(a) The Global Warrants initially shall (i) be registered in the name of the
Depositary for such Global Warrant or the nominee of such Depositary, (ii) be
delivered to the Warrant Agent as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.2 hereof.
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Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Agreement with respect to the Global
Warrants held on their behalf by the Depositary or the Warrant Agent as its
custodian, and the Depositary may be treated by the Company, the Warrant Agent
and any agent of the Company or the Warrant Agent as the absolute owner of such
Global Warrant for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Warrant Agent or any agent of the
Company or the Warrant Agent, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Warrants.
(b) Transfers of a Global Warrant shall be limited to
transfers of such Global Warrant in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in
the Global Warrants may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 8.3 hereof. U.S.
Certificated Warrants and Offshore Certificated Warrants shall be transferred to
beneficial owners in exchange for their beneficial interests in the Restricted
Global Warrant or the Regulation S Global Warrant, as the case may be, (i) if
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for any such Global Warrant and a successor depositary is not
appointed by the Company within 90 days of such notice, (ii) if there is a
Default or (iii) upon the request of the beneficial owner in accordance with the
rules and procedures of the Depositary and the provisions of Section 8.3 hereof;
provided that Offshore Certificated Warrants shall not be transferred in
exchange for the Legended Regulation S Global Warrant prior to one year after
the date hereof.
(c) Any beneficial interest in one of the Global Warrants
that is transferred to a person who takes delivery in the form of an interest in
any other Global Warrant will, upon transfer, cease to be an interest in such
Global Warrant and become an interest in such other Global Warrant and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Warrant for as long as it remains such an interest.
(d) In connection with the transfer of the entire
Restricted Global Warrant or Regulation S Global Warrant to beneficial owners
pursuant to paragraph (b) of this Section 8.2, the Restricted Global Warrant or
the Regulation S Global Warrant, as the case may be, shall be surrendered to the
Warrant Agent for cancellation, and the Company shall execute, and the Warrant
Agent shall countersign and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Restricted Global
Warrant or the
- ▇▇ -
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as the case may be, U.S. Certificated Warrants or
Offshore Certificated Warrants, as the case may be, representing, in the
aggregate, the number of Warrants theretofore represented by the Restricted
Global Warrant or the Regulation S Global Warrant, as the case may be.
(e) In connection with the transfer of a portion of the
beneficial interests in the Restricted Global Warrant or the Unlegended
Regulation S Global Warrant to beneficial owners pursuant to paragraph (b) of
this Section 8.2, the Warrant Agent shall reflect on its books and records the
date and a decrease in the amount of Warrants represented by the Restricted
Global Warrant or Unlegended Regulation S Global Warrant in an amount equal to
the amount of Warrants represented by the beneficial interest in the Restricted
Global Warrant or Unlegended Regulation S Global Warrant to be transferred, and
the Company shall execute, and the Warrant Agent shall countersign and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Restricted Global Warrant or the Unlegended
Regulation S Global Warrant, as the case may be, U.S. Certificated Warrants or
Offshore Certificated Warrants, as the case may be, of like tenor and amount.
(f) Any Certificated Warrant delivered in exchange for an
interest in a Global Warrant pursuant to paragraph (b), (d) or (e) of this
Section shall, except as otherwise provided by paragraph (d) of Section 8.3
hereof, bear the legend regarding transfer restrictions set forth in Section 2.2
hereof.
(g) The registered holder of a Global Warrant may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Agreement or the Warrants.
Section 8.3. Special Transfer Provisions. The following
provisions shall apply:
(a) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of Warrants to a
QIB (excluding non-U.S. Persons):
(i) If the Warrants to be transferred are represented by
Certificated Warrants or by an interest in the Legended Regulation S
Global Warrant, the Warrant Agent shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Warrant Certificate stating, or has
otherwise advised the Company and the Warrant Agent in writing, that
the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the
form of Warrant Certificate stating, or has otherwise advised the
Company and the Warrant Agent in writing, that it is purchasing
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the Warrants for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Warrants to be transferred are represented by Certificated Warrants or
an interest in the Legended Regulation S Global Warrant, upon receipt
by the Warrant Agent of the documents referred to in clause (i) above
and instructions given in accordance with the Depositary's and the
Warrant Agent's procedures, the Warrant Agent shall reflect on its
books and records the date and an increase in the amount of Warrants
represented by the Restricted Global Warrant in an amount equal to the
amount of Warrants represented by the Certificated Warrants or the
interest in the Legended Regulation S Global Warrant, as the case may
be, to be transferred, and the Warrant Agent shall cancel the
Certificated Warrants or decrease the amount of the Legended Regulation
S Global Warrant so transferred.
(b) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to the registration of any
proposed transfer of Warrants (other than transfer of the Regulation S Global
Warrant) to a Non-U.S. Person:
(i) The Warrant Agent shall register any proposed transfer
of Warrants to a Non-U.S. Person only upon receipt of a certificate
substantially in the form of Exhibit B from the proposed transferor.
(ii) If the proposed transferee is an Agent Member and the
Warrants to be transferred are represented by Certificated Warrants or
an interest in the Restricted Global Warrant, upon receipt by the
Warrant Agent of the documents referred to in clause (i) above and
instructions given in accordance with the Depositary's and the Warrant
Agent's procedures, the Warrant Agent shall reflect on its books and
records the date and an increase in the number of Warrants represented
by the Regulation S Global Warrant in an amount equal to the number of
Warrants represented by the Certificated Warrants or the Restricted
Global Warrant, as the case may be, to be transferred, and the Warrant
Agent shall cancel the Certificated Warrant or decrease the amount of
Warrants represented by the Restricted Global Warrant so transferred.
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(c) Transfers to Any Other Person. The following
provisions shall apply with respect to the registration of any proposed transfer
of Warrants (other than transfers of the Regulation S Global Warrant) to any
Person not specified in paragraphs (a) and (b) above (including any
Institutional Accredited Investor which is not a QIB).
(i) The Warrant Agent shall register any proposed transfer
of Warrants to any such Person if (x) the transferor has delivered to
the Warrant Agent and the Company a certificate substantially in the
form of Exhibit C-1 hereto and, if required by paragraph (d) thereof,
an Opinion of Counsel to the effect set forth therein and (y) the
proposed transferee has delivered to the Warrant Agent and the Company
a certificate substantially in the form of Exhibit C-2 hereto if such
transferee is an Institutional Accredited Investor that is not a QIB.
(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in the Restricted Global Warrant or the
Regulation S Global Warrant, upon receipt by the Warrant Agent and the
Company of the documents referred to in clause (i) above and
instructions given in accordance with the Depositary's and the Warrant
Agent's procedures, the Company shall execute and the Warrant Agent
shall countersign Certificated Warrants in an amount equal to the
number of Warrants represented by the Restricted Global Warrant or the
Regulation S Global Warrant, if any, as the case may be, to be
transferred and the Warrant Agent shall decrease the number of Warrants
represented by the Restricted Global Warrant or the Regulation S Global
Warrant so transferred.
(d) Private Placement Legend. Upon the transfer, exchange
or replacement of Warrant Certificates not bearing the Private Placement Legend,
the Warrant Agent shall deliver Warrant Certificates that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Warrant
Certificates bearing the Private Placement Legend, the Warrant Agent shall
deliver only Warrant Certificates that bear the Private Placement Legend unless
either (i) the circumstances contemplated by the third sentence of the third
paragraph of Section 2.1 exist or (ii) there is delivered to the Warrant Agent
an Opinion of Counsel reasonably satisfactory to the Company and its counsel and
the Warrant Agent to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(e) Transfers of Interests in the Legended Regulation S
Global Warrant. The following provisions shall apply with respect to
registration of any proposed transfer of interests in the Legended Regulation S
Global Warrant:
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(i) The Registrar shall register the transfer of any
Warrant (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit B hereto or (y) if the proposed
transferee is a QIB and the proposed transferor has checked the box
provided for on the form of Warrant stating, or has otherwise advised
the Company and the Warrant Agent in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who
has signed the certification provided for on the form of Warrant
stating, or has otherwise advised the Company and the Warrant Agent in
writing, that it is purchasing the Warrant for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Warrant Agent of the documents referred to in clause
(i)(y) above and instructions given in accordance with the Depositary's
and the Warrant Agent's procedures, the Warrant Agent shall reflect on
its books and records the date and an increase in the number of
Warrants represented by the Restricted Global Warrant, in an amount
equal to the number of Warrants represented by the Legended Regulation
S Global Warrant to be transferred, and the Warrant Agent shall
decrease the number of Warrants represented by the Legended Regulation
S Global Warrant.
(f) Transfers of Interests in the Unlegended Regulation S
Global Warrant or Unlegended Offshore Certificated Warrants. The Warrant Agent
shall register any transfer of interests in the Unlegended Regulation S Global
Warrant or unlegended Offshore Certificated Warrants without requiring any
additional certification.
(g) General. (i) By its acceptance of any Warrants
represented by a Warrant Certificate bearing the Private Placement Legend, each
Holder of such Warrants acknowledges the restrictions on transfer of such
Warrants set forth in this Agreement and in the Private Placement Legend and
agrees that it will transfer such Warrants only as provided in this Agreement.
The Warrant Agent shall not register a transfer of any Warrants unless such
transfer complies with the restrictions on transfer of such Warrants set forth
in this Agreement. In connection with any transfer of Warrants, each Holder
agrees by its acceptance of Warrants to furnish the Warrant Agent or the Company
such certifications, legal opinions or other information as either of them may
reasonably require to confirm that such
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transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Warrant Agent shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
(ii) The Warrant Agent shall retain copies of all letters,
notices and other written communications received pursuant to Section
8.2 hereof or this Section 8.3. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable
written notice to the Warrant Agent.
Section 8.4. Surrender of Warrant Certificates. Any Warrant
Certificate surrendered for registration of transfer, exchange or exercise of
the Warrants represented thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued by the Company and, except as provided in this Article
VIII in case of an exchange, Article III hereof in case of the exercise of less
than all the Warrants represented thereby or Article VI in case of a mutilated
Warrant Certificate, no Warrant Certificate shall be issued hereunder in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of such cancelled Warrant Certificates as the Company may
direct in writing.
ARTICLE IX
WARRANT HOLDERS
Section 9.1. Warrant Holder Deemed Not a Shareholder. The
Company and the Warrant Agent may deem and treat the registered Holder(s) of the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof and for all other purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary. Accordingly,
the Company and/or the Warrant Agent shall not, except as ordered by a court of
competent jurisdiction as required by law, be bound to recognize any equitable
or other claim to or interest in the Warrants on the part of any person other
than such registered Holder, whether or not it shall have express or other
notice thereof. Prior to the exercise of the Warrants, no Holder of a Warrant
Certificate, as such, shall be entitled to any rights of a shareholder of the
Company, including, without limitation, the right to vote or to consent to any
action of the shareholders, to receive dividends or other distributions, to
exercise any preemptive right or to receive any notice of meetings of
shareholders and, except as otherwise provided in this Agreement, shall not be
entitled to receive any notice of any proceedings of the Company.
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Section 9.2. Right of Action. All rights of action with
respect to this Agreement are vested in the Holders of the Warrants, and any
Holder of any Warrant, without the consent of the Warrant Agent or the Holders
of any other Warrant, may, on such Holder's own behalf and for such Holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such
Holder's right to exercise such Warrants in the manner provided in the Warrant
Certificate representing such Warrants and in this Agreement.
ARTICLE X
REMEDIES
Section 10.1. Defaults. It shall be deemed to be a "Default"
with respect to the Company's (or its successor's) obligations under this
Agreement if:
(a) a Repurchase Event occurs and the Company (or its
successor) shall fail to make a Repurchase Offer pursuant to Section
3.4 hereof; or
(b) the Company (or its successor) shall fail to purchase
the Warrants pursuant to the Repurchase Offer in accordance with the
provisions of Section 3.4 hereof.
Section 10.2. Payment Obligations. Upon the happening of a
Default under this Agreement, the Company shall be obligated to increase the
amount otherwise payable pursuant to Section 3.4(d) hereof in respect of the
Repurchase Offer to which such Default relates by an amount equal to interest
thereon at a rate per annum equal to 11-7/8% from the date of the Default to the
date of payment, which interest shall compound quarterly (all such payment
obligations in respect of such Repurchase Offer, together with all such
increased amounts, being the "Repurchase Obligation").
Section 10.3. Remedies; No Waiver. Notwithstanding any other
provision of this Agreement, if a Default occurs and is continuing, the Holders
of the Warrants may pursue any available remedy to collect the Repurchase
Obligation or to enforce the performance of any provision of this Agreement. A
delay or omission by any Holder of a Warrant in exercising, or a failure to
exercise, any right or remedy arising out of a Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Default. All
remedies are cumulative to the extent permitted by law.
ARTICLE XI
THE WARRANT AGENT
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Section 11.1. Duties and Liabilities. The Warrant Agent hereby
accepts the agency established by this Agreement and agrees to perform the same
upon the terms and conditions herein set forth, by all of which the Company and
the Holders of Warrants, by their acceptance thereof, shall be bound. The
Warrant Agent shall not, by countersigning Warrant Certificates or by any other
act hereunder, be deemed to make any representations as to the validity or
authorization of the Warrants or the Warrant Certificates (except as to its
countersignature thereon) or of any Preferred Stock issued upon exercise of any
Warrant, or as to the accuracy of the computation of the Exercise Price or the
number or kind or amount of Preferred Stock deliverable upon exercise of any
Warrant or the correctness of the representations of the Company made in the
certificates that the Warrant Agent receives. The Warrant Agent shall not be
accountable for the use or application by the Company of the proceeds of the
exercise of any Warrant. The Warrant Agent shall not have any duty to calculate
or determine any adjustments with respect to either the Exercise Price or the
kind and amount of Preferred Stock receivable by Holders upon the exercise of
Warrants required from time to time and the Warrant Agent shall have no duty or
responsibility in determining the accuracy or correctness of such calculation.
The Warrant Agent shall not be (a) liable for any recital or statement of fact
contained herein or in the Warrant Certificates or for any action taken,
suffered or omitted by it in good faith in the belief that any Warrant
Certificate or any other documents or any signatures are genuine or properly
authorized, (b) responsible for any failure on the part of the Company to comply
with any of its covenants and obligations contained in this Agreement or in the
Warrant Certificates or (c) liable for any act or omission in connection with
this Agreement except for its own negligence, bad faith or willful misconduct.
The Warrant Agent is hereby authorized to accept instructions with respect to
the performance of its duties hereunder from the Chairman of the Board, Chief
Executive Officer, Chief Financial Officer any Vice President or other executive
officer of the Company and to apply to any such officer for instructions (which
instructions will be promptly given in writing when requested) and the Warrant
Agent shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with the instructions of any such officer; provided,
however, that, in its discretion, the Warrant Agent may, in lieu thereof, accept
other evidence of such or may require such further or additional evidence as it
may deem reasonable. The Warrant Agent shall not be liable for any action taken
with respect to any matter in the event it requests instructions from the
Company as to that matter and does not receive such instructions within a
reasonable period of time after the request therefor.
The Warrant Agent may execute and exercise any of the rights
and 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; provided that reasonable care has been
exercised
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with respect to the retention of any such attorney, agent or employee. The
Warrant Agent shall not be under any obligation or duty to institute, appear in
or defend any action, suit or legal proceeding in respect hereof, unless first
indemnified to its reasonable satisfaction. The Warrant Agent shall promptly
notify the Company in writing of any claim made or action, suit or proceeding
instituted against it arising out of or in connection with this Agreement.
The Company will perform, execute, acknowledge and deliver or
cause to be delivered all such further acts, instruments and assurances as are
consistent with this Agreement and as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
In acting under this Agreement and in connection with the
Warrant Certificates, the Warrant Agent is acting solely as agent of the Company
and does not assume any obligation or relationship or agency or trust for or
with any Holders of Warrant Certificates or beneficial owners of Warrants. The
Warrant Agent shall not be liable except for the failure to perform such duties
as are specifically set forth herein, and no implied covenants or obligations
shall be read into this Agreement against the Warrant Agent, whose duties and
obligations shall be determined solely by the express provisions hereof.
Section 11.2. Right to Consult Counsel. The Warrant Agent may
at any time consult with legal counsel (who may be legal counsel for the
Company), and the opinion or advice of such counsel shall be full and complete
authorization and protection to the Warrant Agent and the Warrant Agent shall
incur no liability or responsibility to the Company or to any Holder for any
action taken, suffered or omitted by it in good faith in accordance with the
opinion or advice of such counsel.
Section 11.3. Compensation; Indemnification. The Company
agrees promptly to pay the Warrant Agent from time to time and in any case
within 30 days of receipt of an invoice, compensation for its services hereunder
as the Company and the Warrant Agent may agree from time to time, and to
reimburse it upon its request for reasonable fees or expenses and reasonable
counsel fees and expenses incurred in connection with the execution and
administration of this Agreement, and further agrees to indemnify the Warrant
Agent and save it harmless against any losses, liabilities or expenses arising
out of or in connection with the acceptance and administration of this
Agreement, including, without limitation, the reasonable costs and expenses of
investigating or defending any claim of such liability, except that the Company
shall have no liability hereunder to the extent that any such loss, liability or
expense results from the Warrant Agent's own negligence, bad faith or willful
misconduct. The obligations of the Company under this Section 11.3 shall survive
the exercise and the expiration of the Warrants, the termination of this
Agreement and the resignation or removal of the Warrant Agent in respect of
services or expenses incurred in connection with the Warrants or this Agreement.
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Section 11.4. No Restrictions on Actions. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent and any shareholder,
director, officer or employee of the Warrant Agent from buying, selling or
dealing in any of the Warrants or other securities of the Company or becoming
pecuniarily interested in transactions in which the Company may be interested,
or contracting with or lending money to the Company or otherwise acting as fully
and freely as though it were not the 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.
Section 11.5. Discharge or Removal; Replacement Warrant Agent.
The Warrant Agent may resign from its position as such and be discharged from
all further duties and liabilities hereunder (except liability arising as a
result of the Warrant Agent's own gross negligence, bad faith or willful
misconduct), after giving one month's prior written notice to the Company. The
Company may at any time remove the Warrant Agent upon one month's written notice
specifying the date when such discharge shall take effect, and the Warrant Agent
shall thereupon in like manner be discharged from all further duties and
liabilities hereunder, except as aforesaid. The Warrant Agent shall mail to each
Holder of a Warrant, at the Company's expense, a copy of said notice of
resignation or notice of removal, as the case may be. Upon such resignation or
removal the Company shall appoint in writing a new warrant agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such resignation by the resigning Warrant Agent or after
such removal, then the resigning or removed Warrant Agent or the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. After 30 days from receipt of, or giving, notice, as the
case may be, and pending appointment of a successor to the original Warrant
Agent, either by the Company or by such a court, the duties of the Warrant Agent
shall be carried out by the Company. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a bank or trust company doing business
under the laws of the United States or any state thereof, in good standing and
having a combined capital and surplus of not less than $25,000,000. The combined
capital and surplus of any such new warrant agent shall be deemed to be the
combined capital and surplus as set forth in the most recent annual report of
its condition published by such warrant agent prior to its appointment, provided
that such reports are published at least annually pursuant to law or to the
requirements of a federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new warrant agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; however, the original Warrant Agent shall in
all events deliver and transfer to the successor Warrant Agent all property
(including, without limitation, documents and recorded information), if any, at
the time held
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43
hereunder by the original Warrant Agent and if for any reason it shall be
necessary or expedient to execute and deliver any further assurance, conveyance,
act or deed, the same shall be done at the expense of the Company and shall be
legally and validly executed and delivered by the resigning or removed Warrant
Agent. Not later than the effective date of any such appointment, the Company
shall file notice thereof with the resigning or removed Warrant Agent and shall
forthwith cause a copy of such notice to be mailed by the successor Warrant
Agent to each Holder of a Warrant. Failure to give any notice provided for in
this Section 11.5, however, or any defect therein, shall not affect the legality
or validity of the resignation of the Warrant Agent or the appointment of a new
warrant agent, as the case may be. No Warrant Agent hereunder shall be liable
for any acts or omissions of any successor Warrant Agent.
Section 11.6. Successor Warrant Agent. Any corporation into
which the Warrant Agent or any new warrant agent may be merged or converted, or
any corporation resulting from any consolidation to which the Warrant Agent or
any new warrant agent shall be a party or any corporation succeeding to all or
substantially all the corporate agency business of the Warrant Agent, shall be a
successor Warrant Agent under this Agreement without any further act, provided
that such corporation would be eligible for appointment as successor to the
Warrant Agent under the provisions of Section 11.5 hereof. Any such successor
Warrant Agent shall promptly cause notice of its succession as Warrant Agent to
be mailed to each Holder of a Warrant.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Monies Deposited with the Warrant Agent. The
Warrant Agent shall not be required to pay interest on any monies deposited
pursuant to the provisions of this Agreement except such as it shall agree in
writing with the Company to pay thereon. Any monies, securities or other
property which at any time shall be deposited by the Company or on its behalf
with the Warrant Agent pursuant to this Agreement shall be and are hereby
assigned, transferred and set over to the Warrant Agent in trust for the purpose
for which such monies, securities or other property shall have been deposited;
but such monies, securities or other property need not be segregated from other
funds, securities or other property except to the extent required by law. Any
monies, securities or other property deposited with the Warrant Agent for
payment or distribution to the Holders that remains unclaimed for one year after
the date the monies, securities or other property was deposited with the Warrant
Agent shall be delivered to the Company upon its request therefor.
Section 12.2. Payment of Taxes. Subject to Article VI hereof,
all Preferred Stock issuable upon the exercise of Warrants shall be validly
issued, fully
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44
paid and not subject to any calls for funds, and the Company shall pay any taxes
and other governmental charges that may be imposed under the laws of the United
States of America or any political subdivision or taxing authority thereof or
therein in respect of the issue or delivery thereof upon exercise of Warrants
(other than income taxes imposed on the Holders). The Company shall not be
required, however, to pay any tax or other charge imposed in connection with any
transfer involved in the issue of any certificate for Preferred Stock (including
other securities or property issuable upon the exercise of the Warrants) or
payment of cash to any Person other than the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant and in case of such transfer or
payment, the Warrant Agent and the Company shall not be required to issue any
share certificate or pay any cash until such tax or charge has been paid or it
has been established to the Warrant Agent's and the Company's satisfaction that
no such tax or charge is due.
Section 12.3. No Merger, Consolidation or Sale of Assets of
the Company. Except as otherwise provided herein, the Company will not merge
into or consolidate with any other Person, or sell or otherwise transfer its
property, assets and business substantially as an entirety to a successor of the
Company, unless the Person resulting from such merger or consolidation, or such
successor of the Company, shall expressly assume, by supplemental agreement
satisfactory in form to the Warrant Agent and executed and delivered to the
Warrant Agent, the due and punctual performance and observance of each and every
covenant and condition of this Agreement or contained in the Warrants to be
performed and observed by the Company.
Section 12.4. Reports to Holders. At all times from and after
the end of the first quarter ending after date hereof, whether or not the
Company is then required to file reports with the Commission, the Company shall
file with the Commission all such reports and other information as it would be
required to file with the Commission by Section 13(a) or 15(d) under the
Exchange Act if it were subject thereto (unless the Commission will not accept
such a filing, in which case the Company shall provide such documents to the
Warrant Agent). The Company shall supply the Warrant Agent and each Holder or
shall supply to the Warrant Agent for forwarding to each such Holder, without
cost to such Holder, copies of such reports and other information; provided,
however, that copies of such reports may omit exhibits, which the Company will
deliver at its cost to any Holder upon request. In addition, at all times prior
to the registration of the Preferred Stock (or any capital stock issuable upon
conversion of the Preferred Stock) under the Securities Act, upon the request of
any Holder or any prospective purchaser of the Warrants designated by a Holder,
the Company shall supply to such Holder or such prospective purchaser the
information required under Rule 144A under the Securities Act; provided,
however, that copies of such reports and other information may omit exhibits,
which the Company will supply to any Holder or prospective purchaser upon
request.
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Section 12.5. Notices; Payment. (a) Except as otherwise
provided in Section 12.5(b) hereof, any notice, demand or delivery authorized by
this Agreement shall be sufficiently given or made when mailed, if sent by first
class mail, postage prepaid, addressed to any Holder of a Warrant at such
Holder's last known address appearing on the register of the Company maintained
by the Warrant Agent and to the Company or the Warrant Agent as follows:
To the Company:
KNOLOGY Holdings, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
To the Warrant Agent:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given when mailed,
whether or not the Holder receives the notice.
(b) Payment of the Exercise Price shall be made in
accordance with the provisions of this Agreement at the office of the Warrant
Agent set forth above.
(c) Any notice required to be given by the Company to the
Holders shall be made by mailing by registered mail, return receipt requested,
to the Holders at their last known addresses appearing on the register
maintained by the Warrant Agent. The Company hereby irrevocably authorizes the
Warrant Agent, in the name and at the expense of the Company, to mail any such
notice upon receipt thereof from the Company. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given
when mailed, whether or not the Holder receives the notice.
Section 12.6. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Company and the Warrant Agent and their
respective successors and assigns, and the Holders from time to time of the
Warrants. Nothing in this Agreement is intended or shall be construed to confer
upon any Person, other than the Company, the Warrant Agent and the Holders of
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the Warrants, any right, remedy or claim under or by reason of this Agreement or
any part hereof.
Section 12.7. Counterparts. This Agreement may be executed
manually or by facsimile in any number of counterparts, each of which shall be
deemed an original, but all of which together constitute one and the same
instrument.
Section 12.8. Amendments. The Warrant Agent may, without the
consent or concurrence of the Holders of the Warrants, by supplemental agreement
or otherwise, join with the Company in making any changes or corrections in this
Agreement that (a) are required to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error herein contained or (b) add to the covenants and agreements of the Company
in this Agreement further covenants and agreements of the Company thereafter to
be observed, or surrender any rights or power reserved to or conferred upon the
Company in this Agreement; provided that in either case such changes or
corrections, in the good faith opinion of the Board as evidenced by a Board
resolution, do not and will not adversely affect, alter or change the rights,
privileges or immunities of the Holders of Warrants. Upon the Warrant Agent's
request, the Company shall promptly provide an Officer's Certificate and Opinion
of Counsel which provide all conditions precedent to adoption of an amendment
that have been satisfied.
Section 12.9. Headings. The descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 12.10. Preferred Stock Legend. Unless and until the
Preferred Stock issuable upon the exercise of the Warrants is registered under
the Securities Act, or unless otherwise agreed by the Company and the Holder
thereof, such shares of Preferred Stock will bear a legend substantially to the
following effect:
THE SHARES OF PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2),
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47
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THESE SHARES OF PREFERRED STOCK IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER
THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
SECURITY, RESELL OR OTHERWISE TRANSFER THIS THESE SHARES OF PREFERRED
STOCK EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRANSFER AGENT AND REGISTRAR A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRANSFER AGENT AND REGISTRAR) AND AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THESE SHARES OF PREFERRED STOCK IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THESE SHARES OF PREFERRED STOCK WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE CERTIFICATE OF TRANSFER (THE FORM OF WHICH CERTIFICATE CAN BE
OBTAINED FROM THE TRANSFER AGENT AND REGISTRAR) RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRANSFER AGENT AND
REGISTRAR. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRANSFER AGENT AND REGISTRAR AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF
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48
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE TRANSFER AGENT AND REGISTRAR HAVE BEEN INSTRUCTED TO REFUSE TO
REGISTER ANY TRANSFER OF THESE SHARES OF PREFERRED STOCK IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
Section 12.11. Third Party Beneficiaries. The Holders shall be
third party beneficiaries to the agreements made hereunder between the Company,
on the one hand, and the Warrant Agent, on the other hand, and each Holder shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder. By acquiring Warrants, each Holder agrees to be bound by the
obligations of Holders generally as set forth herein and as such obligations may
be applicable to such Holder.
Section 12.12. Termination. Except as otherwise specified
herein, this Agreement shall terminate at 5:00 p.m. (New York City time) on
October 22, 2007. Notwithstanding the foregoing, this Agreement shall terminate
on any earlier date as of which all Warrants have been exercised.
Section 12.13. Governing Law. The laws of the State of New
York shall govern this Agreement. The Warrant Agent, the Company and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed, as of the day and year first above written.
KNOLOGY, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF NEW
YORK
By: ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title:
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
KNOLOGY, INC.
[CUSIP] [CINS] [ISIN] No. _____
No. _____
WARRANTS TO PURCHASE PREFERRED STOCK
This certifies that ______________, or its registered assigns,
is the owner of ___________ Warrants, each of which represents the right to
purchase, from KNOLOGY, INC., a Delaware corporation (the "Company"), _______
shares of the Series A Preferred Stock, par value $0.01, of the Company (the
"Preferred Stock") at an exercise price (the "Exercise Price") of $.01 per share
(subject to adjustment as provided in the Warrant Agreement hereinafter referred
to below), upon surrender hereof at the office of United States Trust Company of
New York, or to its successor, as the warrant agent under the Warrant Agreement
(any such warrant agent being herein called the "Warrant Agent"), with the
Subscription Form on the reverse hereof duly executed, with signature guaranteed
as therein specified and simultaneous payment in full in cash or by certified or
official bank or bank cashier's check payable to the order of the Company.
Notwithstanding the foregoing, the Exercise Price may be paid by surrendering
additional Warrants to the Warrant Agent having an aggregate Spread equal to the
aggregate Exercise Price of the Warrants being exercised. At any time on or
before the Expiration Date, any outstanding Warrants may be exercised on any
Business Day; provided that the Warrant Registration Statement is, at the time
of exercise, effective and available for the exercise of Warrants or the
exercise of such Warrants is exempt from the registration requirements of the
Securities Act.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement dated as of November __, 1999 (the "Warrant
Agreement"), between the Company and United States Trust Company of New York, as
Warrant Agent, and a Warrant Registration Rights Agreement dated as of November
__, 1999 (the "Warrant Registration Rights Agreement"), between the Company and
United States Trust Company of New York, as Warrant Agent, and is subject to the
Certificate of Incorporation and Bylaws of the Company and to the terms and
provisions contained therein, to all of which terms and provisions the holder of
this Warrant Certificate consents by acceptance hereof. The terms of the Warrant
Agreement and the Warrant Registration Rights Agreement are hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement and the Warrant Registration Rights Agreement for a
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full description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Company and the Holders of the Warrants. The
summary of the terms of the Warrant Agreement and the Warrant Registration
Rights Agreement contained in this Warrant Certificate is qualified in its
entirety by express reference to the Warrant Agreement and the Warrant
Registration Rights Agreement. All terms used in this Warrant Certificate that
are defined in the Warrant Agreement and the Warrant Registration Rights
Agreement shall have the meanings assigned to them in such agreements.
Copies of the Warrant Agreement and the Warrant Registration
Rights Agreement are on file at the office of the Warrant Agent and may be
obtained by writing to the Warrant Agent at the following address:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
A "Repurchase Event", as defined in the Warrant Agreement,
means and shall be deemed to occur on any date when the Company (i) consolidates
with or merges into or with another Person (but only where the holders of
Preferred Stock (or any capital stock issuable upon conversion of the Preferred
Stock) receive consideration in exchange for all or part of such stock), if the
Preferred Stock (or other securities) thereafter issuable upon exercise of the
Warrants is not registered under the Exchange Act or (ii) sells all or
substantially all of its assets to another Person, if the Preferred Stock (or
other securities) thereafter issuable upon exercise of the Warrants is not
registered under the Exchange Act; provided that in each case a "Repurchase
Event" shall not be deemed to have occurred if the consideration for such
transaction consists solely of cash.
Following a Repurchase Event, the Company must make an offer
to repurchase for cash all outstanding Warrants (a "Repurchase Offer"). If the
Company makes a Repurchase Offer, Holders may, until the expiration date of such
offer, surrender all or part of their Warrants for repurchase by the Company.
Warrants received by the Warrant Agent in proper form during a
Repurchase Offer will, except as otherwise provided in the Warrant Agreement, be
repurchased by the Company at a price in cash (the "Repurchase Price") equal to
the value on the Valuation Date relating thereto of the Preferred Stock and
other securities or property of the Company which would have been delivered upon
exercise of the Warrants had the Warrants been exercised, less the Exercise
Price (whether or not the Warrants are then exercisable). The value of such
Preferred Stock and other securities will be, to the extent not otherwise
provided in the
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Agreement (i) if the Preferred Stock (or other securities) are registered under
the Exchange Act, determined based upon the average of the daily market prices
(as determined pursuant to Section 3.4(d)(ii)(1) of the Warrant Agreement) of
the Preferred Stock (or other securities) for the 20 consecutive trading days
immediately preceding such Valuation Date or (ii) if the Preferred Stock (or
other securities) are not registered under the Exchange Act or if the value
cannot be computed under clause (i) above, determined by the Independent
Financial Expert (as defined in the Warrant Agreement), in each case as set
forth in the Warrant Agreement.
The "Valuation Date" as defined in the Warrant Agreement shall
be deemed to occur on the date five Business Days prior to the date notice of
the Repurchase Offer is first given.
If the Company fails to make or complete a Repurchase Offer (a
"Default") as required by the Warrant Agreement, it shall be obligated to
increase the amount otherwise payable pursuant to the Warrant Agreement in
respect of the Repurchase Offer by an amount equal to interest thereon at a rate
per annum of 11-7/8% from the date of the Default to the date of payment, which
interest shall compound quarterly.
If the Company merges or consolidates with or into, or sells
all or substantially all of its property and assets to, another Person and the
consideration received by holders of Preferred Stock (or any capital stock
issuable upon conversion of the Preferred Stock) consists solely of cash, the
Holders of Warrants shall be entitled to receive distributions on the date of
such event on an equal basis with holders of Preferred Stock (or any capital
stock issuable upon conversion of the Preferred Stock) as if the Warrants had
been exercised immediately prior to such event (less the Exercise Price). Upon
receipt of such payment, if any, the rights of a Holder shall terminate and
cease and such Holder's Warrants shall expire.
The number of shares of Preferred Stock issuable upon the
exercise of each Warrant and the price per share are subject to adjustment as
provided in the Warrant Agreement. Except as stated in the immediately preceding
paragraph and in the Warrant Agreement, in the event the Company merges or
consolidates with, or sells all or substantially all of its assets to, another
Person, each Warrant will, upon exercise, entitle the Holder thereof to receive
the number of shares of capital stock or other securities or the amount of money
and other property which the holder of Preferred Stock (or other securities or
property issuable upon exercise of a Warrant) is entitled to receive upon
completion of such merger, consolidation or sale.
As to any final fraction of a share which the same Holder of
one or more Warrant Certificates would otherwise be entitled to purchase upon
exercise
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thereof in the same transaction, the Company may pay the cash value thereof
determined as provided in the Warrant Agreement.
Subject to Article VI of the Warrant Agreement, all Preferred
Stock issuable by the Company upon the exercise of Warrants shall be validly
issued, fully paid and not subject to any calls for funds, and the Company shall
pay any taxes and other governmental charges that may be imposed under the laws
of the United States of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery thereof upon exercise of
Warrants (other than income taxes imposed on the Holders). The Company shall not
be required, however, to pay any tax or other charge imposed in connection with
any transfer involved in the issue of any certificate for Preferred Stock
(including other securities or property issuable upon the exercise of the
Warrants) or payment of cash to any Person other than the Holder of a Warrant
Certificate surrendered upon the exercise of a Warrant and in case of such
transfer or payment, the Warrant Agent and the Company shall not be required to
issue any share certificate or pay any cash until such tax or charge has been
paid or it has been established to the Warrant Agent's and the Company's
satisfaction that no such tax or charge is due.
Subject to the restrictions on and conditions to transfer set
forth in Articles II and VIII of the Warrant Agreement, this Warrant Certificate
and all rights hereunder are transferable by the registered Holder hereof, in
whole or in part, on the register of the Company maintained by the Warrant Agent
for such purpose at the Warrant Agent's office in New York, New York, upon
surrender of this Warrant Certificate duly endorsed, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Warrant Agent
duly executed, with signatures guaranteed as specified in the attached Form of
Assignment, by the registered Holder hereof or his attorney duly authorized in
writing and by such other documentation required pursuant to the Warrant
Agreement and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer. Upon any partial transfer, the Company will
sign and issue and the Warrant Agent will countersign and deliver to such Holder
a new Warrant Certificate or Certificates with respect to any portion not so
transferred. Each taker and Holder of this Warrant Certificate, by taking and
holding the same, consents and agrees that prior to the registration of transfer
as provided in the Warrant Agreement, the Company and the Warrant Agent may
treat the person in whose name the Warrants are registered as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding. Accordingly, the
Company and/or the Warrant Agent shall not, except as ordered by a court of
competent jurisdiction as required by law, be bound to recognize any equitable
or other claim to or interest in the Warrants on the part of any person other
than such registered Holder, whether or not it shall have express or other
notice thereof.
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54
This Warrant Certificate may be exchanged at the office of the
Warrant Agent maintained for such purpose in New York, New York, for Warrant
Certificates representing the same aggregate number of Warrants, each new
Warrant Certificate to represent such number of Warrants as the Holder hereof
shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the
Holder of this Warrant Certificate, as such, shall not be entitled to any rights
of a shareholder of the Company, including, without limitation, the right to
vote or to consent to any action of the shareholders, to receive any
distributions, to exercise any pre-emptive right or to receive any notice of
meetings of shareholders, and shall not be entitled to receive any notice of any
proceedings of the Company except as provided in the Warrant Agreement.
This Warrant Certificate shall be void and all rights
evidenced hereby shall cease on October 22, 2007, unless sooner terminated by
the liquidation, dissolution or winding-up of the Company or as otherwise
provided in the Warrant Agreement upon the consolidation or merger of the
Company with, or sale of the Company to, another Person or unless such date is
extended as provided in the Warrant Agreement.
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55
This Warrant Certificate shall not be valid for any purpose
until it shall have been countersigned by the Warrant Agent.
KNOLOGY, INC.
By:
-----------------------
Name:
Title:
Dated:
Countersigned:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
By: -------------------------
Authorized Signatory
A-6
56
FORM OF REVERSE OF WARRANT CERTIFICATE
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: United States Trust Company of New York,
as Warrant Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
The undersigned irrevocably exercises ________ of the Warrants
represented by this Warrant Certificate and herewith makes payment of $ _______
(such payment being by wire transfer or by certified or official bank or bank
cashier's check payable to the order or at the direction of KNOLOGY, Inc. or the
exercise price may be paid by surrendering additional Warrants to the Warrant
Agent having an aggregate Spread equal to the aggregate exercise price of the
Warrants being exercised) all at the exercise price and on the terms and
conditions specified in this Warrant Certificate and in the Warrant Agreement
and the Warrant Registration Rights Agreement referred to herein and surrenders
this Warrant Certificate and all right, title and interest therein to and
directs that the Preferred Stock, par value $0.01, of KNOLOGY, Inc. (the
"Preferred Stock") deliverable upon the exercise of such Warrants be registered
or placed in the name and at the address specified below and delivered thereto.
[THE FOLLOWING PROVISION TO BE INCLUDED ONLY
ON OFFSHORE CERTIFICATED WARRANTS]
The undersigned certifies that:
Check One
o (a) (i) it is not a U.S. person (as defined in Rule
902 of Regulation S under the U.S. Securities Act of
1933, as amended) and the Warrants are not being
exercised on behalf of a U.S. person.
or
o (ii) it is furnishing to the Warrant Agent a written
opinion of counsel to the effect that the Warrants and
the Preferred Stock issuable upon exercise of the
Warrants have been registered under the U.S.
Securities Act of 1933, as amended, or are exempt from
registration thereunder.
A-7
57
and (b) if an opinion is not being furnished, the undersigned is located outside
the United States at the time of the exercise hereof.
Dated: --------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
--------------------------------
Securities and/or check or other property to be issued or delivered to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-8
58
FORM OF CERTIFICATE FOR REPURCHASE OFFER
(To be executed only upon repurchase
of Warrant by KNOLOGY, Inc.)
To:
The undersigned, having received prior notice of the
consideration for which KNOLOGY, INC. will repurchase the Warrants represented
by the within Warrant Certificate, hereby surrenders this Warrant Certificate
for repurchase by KNOLOGY, INC. of the number of Warrants specified below for
the consideration set forth in such notice.
Dated:
-----------------------------
(Number of Warrants)
-----------------------------
(Signature of Owner)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
-----------------------------
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-9
59
FORM OF ASSIGNMENT
In consideration of monies or other valuable consideration
received from the Assignee(s) named below, the undersigned registered Holder of
this Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any Warrants
constituting a part of the Warrants evidenced by this Warrant Certificate not
being assigned hereby) all of the right of the undersigned under this Warrant
Certificate, with respect to the number of Warrants set forth below:
Name(s) of Assignee(s):
---------------------------------------
Address:
------------------------------------------------------
No. of Warrants:
----------------------------------------------
Please insert social security or other identifying number of assignee(s):
and does hereby irrevocably constitute and appoint ________________________ the
undersigned's attorney to make such transfer on the books of __________________
maintained for the purposes, with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES EXCEPT UNLEGENDED
REGULATION S GLOBAL WARRANTS AND UNLEGENDED OFFSHORE CERTIFICATED WARRANTS]
In connection with any transfer of Warrants, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
Check One
(a) these Warrants are being transferred in compliance with the
exemption from registration under the U.S. Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
(b) these Warrants are being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Warrant Certificate and
the Warrant Agreement.
or
(c) these Warrants are being transferred pursuant to an effective
registration statement under the U.S. Securities Act of 1933, as
amended.
A-10
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If none of the foregoing boxes is checked, the Warrant Agent shall not be
obligated to register the Warrants in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Article VIII of the Warrant Agreement shall
have been satisfied.
Dated:
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
--------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
the Warrant(s) for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the U.S.
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding KNOLOGY, Inc. as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------
-----------------------------------------------
[NOTE: To be executed by an executive officer]
A-11
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EXHIBIT B
Form of Certificate to be Delivered
in Connection with
Transfers Pursuant to Regulation S
[Date]
KNOLOGY, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Re: Warrants (the "Warrants") to Purchase
Preferred Stock of KNOLOGY, Inc. (the "Company")
Ladies and Gentlemen:
In connection with our proposed sale of _______________ Warrants,
we hereby certify that such sale has been effected pursuant to and in accordance
with Regulation S under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Warrants was not made to a person in the
United States and not to a U.S. Person (as defined in Regulation S
under the Securities Act);
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United
States;
(3) no directed selling efforts (as such term is defined in Rule
902(b) of Regulation S under the Securities Act) have been made by
us, any of our affiliates or any persons acting on our behalf in
the United States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, as
applicable; and
B-1
62
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------
Authorized Signature
B-2
63
EXHIBIT C-1
Form of Certificate to be
Delivered by Transferor in Connection with
Transfers to Institutional Accredited Investors
[Date]
KNOLOGY, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Re: Warrants (the "Warrants") to Purchase
Preferred Stock of KNOLOGY, Inc. (the "Company")
Ladies and Gentlemen:
We hereby certify that such transfer is being effected in
compliance with the transfer restrictions applicable to the Warrants or
interests therein transferred pursuant to and in accordance with the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and accordingly we
hereby further certify that (check one):
(a) such transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) such transfer is being effected to the Company or a
subsidiary thereof;
or
(c) such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
C1-1
64
(d) such transfer is being effected pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904 thereunder, and we hereby further certify that such
transfer complies with the transfer restrictions applicable to the Warrants or
interests therein transferred to Institutional Accredited Investors and in
accordance with the requirements of the exemption claimed, which certification
is supported by an Opinion of Counsel provided by us or the transferee (a copy
of which we have attached to this certification), to the effect that such
transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Warrant Agreement, the
transferred Warrants or interests therein will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Certificated Warrant and in the Warrant Agreement and the Securities Act.
Very truly yours,
[Name of Transferor]
By:
---------------------------
Authorized
Signatory
C1-2
65
EXHIBIT C-2
Form of Certificate to be
Delivered By Transferees in Connection with
Transfers to Institutional Accredited Investors
[Date]
KNOLOGY, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Re: Warrants (the "Warrants") to Purchase
Preferred Stock of KNOLOGY, Inc. (the "Company")
Dear Sirs:
In connection with our proposed purchase of ___________
aggregate number of Warrants, we confirm that:
1. We understand that any subsequent transfer of the Warrants,
any interest therein or the Preferred Stock (or other securities)
issuable upon exercise of any Warrant (the "Warrant Shares") is subject
to certain restrictions and conditions set forth in the Warrant
Agreement dated as of November ___, 1999 relating to the Warrants (the
"Warrant Agreement") and the Warrant Registration Rights Agreement dated
November ___, 1999 relating to the Warrants (the "Warrant Registration
Rights Agreement") and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Warrants or Warrant Shares
except in compliance with, such restrictions and conditions and the U.S.
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Warrants represented by this Warrant
Certificate and, as of the date this Warrant Certificate was originally
issued, the Warrant Shares have not been registered under the Securities
Act, and accordingly may not be offered, sold, pledged or otherwise
transferred within the United States or to, or for the account or
benefit of, U.S. Persons except as
C2-1
66
set forth in the following sentence. We agree that we will not, within
the time period referred to under Rule 144(k) of the Securities Act
(taking into account the provisions of Rule 144(d) under the Securities
Act, if applicable) under the Securities Act as in effect on the date of
the transfer of this Warrant, resell or otherwise transfer the Warrants
represented by this Warrant Certificate except (a) to KNOLOGY, Inc. or
any subsidiary thereof, (b) to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act, (c) outside the
United States in an offshore transaction in compliance with Rule 904
under the Securities Act, (d) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if
available), (e) to an institutional accredited investor that, prior to
such transfer, furnishes to you, to the Company and, in the case of the
Warrant Shares, to the transfer agent and registrar therefor, a signed
letter containing certain representations and agreements relating to the
restrictions on transfer of the Warrants represented by this Warrant
Certificate (the form of which letter can be obtained from the Warrant
Agent) and an opinion of counsel acceptable to the Company and its
counsel that such transfer is in compliance with the Securities Act or
(f) pursuant to an effective registration statement under the Securities
Act and, in each case, in accordance with applicable state securities
laws.
3. We understand that, on any proposed resale of any Warrants,
any interest therein or Warrant Shares, we will be required to furnish
to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We
further understand that the Warrants purchased by us will bear a legend
to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Warrants, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment
for an indefinite period of time.
5. We are acquiring the Warrants purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
C2-2
67
You, the Company and, if applicable, the transfer agent and
registrar for the Warrant Shares are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-------------------------------
Authorized
Signature
C2-3
68
EXHIBIT D
Form of Certificate
[Date]
KNOLOGY, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Re: Warrants (the "Warrants") to Purchase
Preferred Stock of KNOLOGY, Inc. (the "Company")
Dear Sirs:
This letter relates to __________ Warrants (the "Legended Warrants")
represented by a Warrant Certificate which bears a legend outlining restrictions
upon transfer of such Legended Warrants. Pursuant to Section 2.1 of the Warrant
Agreement dated as of November ___, 1999 (the "Warrant Agreement") relating to
the Warrants, we hereby certify that we are (or we will hold such securities on
behalf of) a person outside the United States to whom the Warrants could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
U.S. Securities Act of 1933, as amended. Accordingly, you are hereby requested
to exchange the legended certificate for an unlegended certificate representing
an identical number of Warrants, all in the manner provided for in the Warrant
Agreement.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
------------------------
Authorized Signature
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
LIST OF FINANCIAL EXPERTS
Alex. ▇▇▇▇▇ & Sons
Bear, ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇, Read & Co. Inc.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Lazard Freres & Co.
▇▇▇▇▇▇ Brothers
Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Inc.
Salomon Brothers Inc
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