EXHIBIT 4.9
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HEFTEL BROADCASTING CORPORATION
STANDARD STOCK WARRANT
AGREEMENT PROVISIONS
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TABLE OF CONTENTS
Page
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ARTICLE 1 Issuance, Execution and Delivery of Warrant Certificates. . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3 Registration and Countersignature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 Warrant Price, Duration and Exercise of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Duration of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Exercise of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3 Other Provisions Relating to Rights of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . 5
SECTION 3.1 No Rights as Securityholders Conferred by Warrant Certificate . . . . . . . . . . . . . . . . . . . 5
SECTION 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.4 Call of Warrants by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.5 Optional Reduction of Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.6 Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.7 Obtaining of Governmental Approvals and Stock Exchange Listings . . . . . . . . . . . . . . . . . . 8
SECTION 3.8 Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants . . . . . . . . 8
SECTION 3.9 Fractional Warrants and Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.10 Notices to Warrantholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 4 Exchange and Transfer of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.1 Exchange and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.2 Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.3 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 5 Concerning the Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.2 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.3 Resignation and Appointment of Successor Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE 6 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.1 Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.2 Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.3 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.4 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.5 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.6 Persons Having Rights under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.9 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.12 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
From time to time, Heftel Broadcasting Corporation a Delaware
corporation (the "Company"), may enter into one or more warrant agreements that
provide for the issuance and sale of warrants ("Warrants") to purchase shares
of the Company's (Common Stock, $0.01 par value) (Preferred Stock, $0.01 par
value) (collectively "Shares"). The standard provisions set forth herein may
be included or incorporated by reference in any such warrant agreement (a
"Warrant Agreement"). The Warrant Agreement, including the provisions
incorporated therein by reference, is herein referred to as this "Agreement."
The person named as the "Warrant Agent" in the first paragraph of the Warrant
Agreement is herein referred to as the "Warrant Agent." Unless otherwise
defined in this Agreement or in the Warrant Agreement, as the case may be,
terms defined in the Warrant Agreement are used herein as therein defined and
terms defined herein are used in the Warrant Agreement as herein defined.
ARTICLE 1
Issuance, Execution and Delivery of Warrant Certificates
1.1 Issuance of Warrant Certificates. Each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase such numbers of Shares as are set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of
the Board of Directors of the Company or any duly authorized committee thereof
or established in one or more warrant agreements supplemental hereto, prior to
the issuance of any Warrants: the designation of such Warrants; if the
Warrants are issued together as a unit with any other securities of the
Company, the date after which the Warrants shall be freely tradable separately
from such other securities (the "Distribution Date"); if the Company may at its
option or under circumstances described therein provide for an earlier
Distribution Date; the expiration date, pursuant to Section 2.2; the exercise
price and any form of consideration other than lawful money of the United
States of America by which the exercise price may be paid pursuant to Section
2.1; the Call Price, Call Date and Call Terms pursuant to Section 3.4; the
limitations, if any, upon the Reduced Warrant Price and the Reduced Warrant
Price Period, pursuant to Section 3.5; the circumstances, if any, under which
the Exercise Price and the number of Shares purchasable upon the exercise of
each Warrant and the number
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of Warrants outstanding are subject to adjustment and the manner of making any
such adjustment.
1.2 Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in such form or forms as shall be established by the Company from time to time
pursuant to one or more resolutions of the Board of Directors of the Company or
in one or more warrant agreements supplemental hereto, and in each case shall
be dated as of the date of issuance thereof, and may have such letters, numbers
or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the Warrant Certificate may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with (i) any law
or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, its President, a Vice President or its
Treasurer and attested by its Secretary or Assistant Secretary, under its
corporate seal. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly delivered hereunder.
If any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered to the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not cease to be such officer of the Company. Any
Warrant Certificate may be signed on behalf of
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the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such persons was not an
officer.
1.3 Registration and Countersignature. The Warrant Agent
shall, upon receipt of Warrant Certificates, duly executed on behalf of the
Company, countersign the Warrant Certificates evidencing Warrants to purchase
the number of Shares set forth in the Warrant Agreement and shall deliver such
Warrant Certificates to the appropriate person or entity upon the order of the
Company. After the original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for, or in connection with the
registration of transfer of, one or more previously countersigned Warrant
Certificates, as hereinafter provided. The Warrant Certificates shall not be
valid for any purpose unless so countersigned.
The Warrant Agent's countersignature on all
Warrants shall be in substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By
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Authorized Signatory
ARTICLE 2
Warrant Price, Duration and
Exercise of Warrant Certificates
2.1 Warrant Price. The exercise price of each Warrant
and any other form of consideration other than lawful money of the United
States of America by which the exercise price may be paid shall be as set forth
in the Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Shares upon exercise of the Warrants is referred to in
this Agreement as the "Warrant Price" and is payable in full at the time of
exercise.
2.2 Duration of Warrant Certificates. Warrant
Certificates may be exercised in whole at any time, and in part from time to
time, during the period set forth in the Warrant Agent (the "Expiration Date").
Each Warrant Certificate not exercised on or before the close of business
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on the Expiration Date shall become void, and all rights of the holder
thereunder and under this Agreement shall cease.
2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate,
if countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying
in full (in cash or by certified or official bank check in New York Clearing
House funds or by bank wire transfer in immediately available funds), in United
States dollars, the Warrant Price for the Shares as to which the Warrant
Certificate is exercised, to the Warrant Agent at its corporate trust office at
the address set forth in the Warrant Agreement. The payment must specify the
name of the holder and the number of Warrants exercised by such holder.
Warrants will be deemed to have been exercised upon receipt by the Warrant
Agent of the Warrant Price and the Warrant Certificate properly completed and
duly executed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed (under the Medallion Program) by a bank or trust
company, by a broker or dealer which is a member of the National Association of
Securities Dealers, Inc. ("NASD") or by a member of a national securities
exchange. If the Warrant Agent receives moneys in payment of the Warrant
Price, the Warrant Agent shall deposit all funds received by it in the account
of the Company maintained with it for such purpose. If the Warrant Agent
receives consideration other than moneys for purpose. If the Warrant Agent
receives consideration other than moneys for Warrants, the Warrant Agent shall
deliver such consideration directly to the Company. In either case, the
Warrant Agent shall advise the Company by telex or telecopy at the end of each
day as to the Warrant Certificates that have been exercised and the amount of
moneys deposited to its account or the type and amount of other consideration
to be delivered to it.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Shares to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise
and (iv) such other information as the Company shall reasonably require.
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(c) As soon as practicable after receipt of payment of
the Warrant Price and the Warrant Certificate properly completed and duly
executed at the corporate trust office of the Warrant Agent, the Company shall
issue or deliver, upon the order of the holder of such Warrant Certificate, the
Shares in authorized denominations to which such holder is entitled, in fully
registered form in such name or names as maybe directed by such holder, and if
such Warrant Certificate was not exercised in full, upon request of the holder
a new Warrant Certificate evidencing the number of Warrants remaining
unexercised shall be issued if sufficient time remains prior to the Expiration
Date.
(d) The Company will pay all documentary stamp taxes
attributable to the initial issuance of Warrants and of Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any certificates for
Shares in a name other than the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
ARTICLE 3
Other Provisions Relating to Rights of Holders
of Warrant Certificates
3.1 No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any
of the rights of a stockholder of the Company, including the right to receive
the payment of dividends on or vote the Shares.
3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of indemnity
reasonably satisfactory to them, and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice
to the Company or the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, in
exchange for or in lieu of the
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lost, stolen or destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, 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 any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate 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 Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Shares or the holder of any other Warrant Certificate, may, in his or her
own behalf and for his or her own benefit, enforce, and may institute and
maintain any audit, action or proceeding against the Company to enforce or
otherwise in respect of, his right to exercise his or her Warrant Certificate
in the manner provided in his or her Warrant Certificate and in his or her
Agreement.
3.4 Call of Warrants by the Company. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be established
from time to time in or pursuant to resolutions of the Board of Directors of
the Company or in the Warrant Agreement before the issuance of such Warrants.
Notice of such Call Price, Call Date and Call Terms shall be given to
registered holders of Warrants in writing by the Company or the Warrant Agent.
3.5 Optional Reduction of Warrant Price. Subject to the
limits, if any, established from time to time by the Board of Directors of the
Company or in the Warrant Agreement, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current
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Warrant Price to such amount (the "Reduced Warrant Price") and for such period
or periods of time, which may be through the close of business on the
Expiration Date (the "Reduced Warrant Price Period"), as may be deemed
appropriate by the Board of Directors of the Company. Notice of any such
Reduced Warrant Price and Reduced Warrant Price Period shall be given to
registered holders of Warrants in writing by the Company or the Warrant Agent.
After the termination of the Reduced Warrant Price Period, the Warrant Price
shall be such Warrant Price that would have been in effect had there been no
reduction in the Warrant Price pursuant to the provisions of this Section 3.5.
3.6 Reservation of Shares. For the purpose of enabling
it to satisfy any obligation to issue Shares upon exercise of Warrants, the
Company will at all times through the close of business on the Expiration Date,
reserve and keep available, free from preemptive rights and out of its
aggregate authorized but unissued or treasury shares of [Common/Preferred
Stock], the number of Shares deliverable upon the exercise of all outstanding
Warrants, and the transfer agent for the shares is hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued or treasury shares of [Common/Preferred Stock] as shall be required
for such purpose. The Company will keep a copy of this Agreement on file with
such transfer agent and with every transfer agent for any shares of the
Company's capital stock issuable upon the exercise of Warrants. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from
such transfer agent stock certificates issuable upon exercise of outstanding
Warrants, and the Company will supply such transfer agent with duly executed
stock certificates for such purpose.
Before taking any action that would cause an adjustment
pursuant to Section 3.7 reducing the Exercise Price below the then par value
(if any) of the Shares issuable upon exercise of the Warrants, the Company will
take any corporate action that may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of
the Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all taxes, liens,
charges and security interests created by or imposed upon the Company with
respect to the issuance and holding thereof.
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3.7 Obtaining of Governmental Approvals and Stock
Exchange Listings. So long as any Warrants remain outstanding, the Company
will take all necessary steps (a) to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and to
make filings under federal and state securities acts and laws, which may be or
become requisite in connection with the issuance, sale, transfer and delivery
of the Warrant Certificates, the exercise of the Warrants and the issuance,
sale, transfer and delivery of the Shares issued upon excise of Warrants, and
(b) to have the shares of Stock immediately upon their issuance upon exercise
of Warrants, (i) listed on each national securities exchange on which the
(Common/Preferred Stock) is then listed or (ii) if the (Common/Preferred Stock)
is not then listed on any national securities exchange, listed for quotation on
the NASD Automated Quotations System ("Nasdaq") National Market ("Nasdaq
National Market") or such other over-the-counter quotation system on which the
Stock may then be listed.
3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 3.8.
(a) If the Company shall (i) pay a dividend on its
capital stock (including [Common/Preferred Stock]) in shares of Stock, (ii)
subdivide its outstanding shares of [Common/Preferred Stock], (iii) combine its
outstanding shares of [Common/Preferred Stock] into smaller number of shares of
[Common/Preferred Stock] or (iv) issue any shares of its capital stock in a
reclassification of the [Common/Preferred Stock] (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be adjusted so that
the holder of each Warrant shall be entitled to receive the kind and number of
Shares or other securities of the Company which such holder would have owned or
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 paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
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(b) In the event of any capital reorganization or any
reclassification of the {Common/Preferred Stock} (except as provided in
paragraph (a) above or paragraph (h) below), any holder of Warrants upon
exercise thereof shall be entitled to receive, in lieu of the {Common/Preferred
Stock} to which he would have become entitled upon exercise immediately prior
to such reorganization or reclassification, the shares (of any class or
classes) or other securities or property of the Company that he or she would
have been entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 3.8
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Warrant Price between or among shares
of classes of capital stock), to the end that this Section 3.8 (including the
adjustments of the number of shares of {Common/Preferred Stock} or other
securities purchasable and the Warrant Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all subsequent exercises of
the Warrants for any shares or securities or other property thereafter
deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof,
no adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%)in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) 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 cent and to the nearest one- hundredth of a Share, as the case may
be.
(d) Whenever the number of Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to issue additional Warrants in substitution
for an adjustment in the number of Shares as provided in paragraph (f), the
Exercise Price payable upon exercise of each Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Shares purchasable upon
the exercise of each Warrant immediately prior to such adjustment, and of which
the denominator shall
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be the number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of
Stock" shall mean (i) the class of stock designated as the {Common/Preferred
Stock} of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassification of such shares
consisting solely of changes in par value, of from par value to no par value,
or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) or (b) above, the holders of Warrants
shall become entitled to purchase any shares of the Company other than shares
of Stock, thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Exercise Price of such shares shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Shares contained in
paragraphs (a) through (d), inclusive, above, and the provisions of Section
2.1, 2.2, 2.3, 3.6, 3.7(a) and 3.10, with respect to the Shares, shall apply on
like terms to any such other shares.
(f) The Company may elect, on or after the date of any
adjustment required by paragraphs (a) through (b) of this Section 3.8, to
adjust the number of Warrants in substitution for an adjustment in the number
of Shares purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of shares as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
hundredth) obtained by dividing the Warrant Price in effect prior to adjustment
of the Warrant Price by the Warrant Price in effect after adjustment of the
Warrant Price. The Company shall notify the holders of Warrants in the same
manner as provided in the first paragraph of Section 3.10, of its election to
adjust the number of Warrants, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (f) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 3.9, the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such
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holders of record in substitution and replacement for the Warrant Certificates
held by such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Warrant Certificates evidencing all
the Warrants to be issued, executed and registered in the manner specified in
Section 1.3 and Article 4 (and which may bear, at the option of the Company,
the adjusted Exercise Price) and shall be registered in the names of the
holders of record of Warrant Certificates on the record date specified in the
notice.
(g) Except as provided in paragraph (a) of this Section 3.8,
no adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or
merger of the Company into another corporation or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each holder of a Warrant shall have the right thereafter upon
payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he or she would have owned or have been entitled
to receive after the happening of such consolidation, merger, sale or
conveyance had such Warrant been exercised immediately prior to such action.
The Company shall mail by first class mail, postage prepaid, to each holder of
a Warrant, notice of the execution of any such agreement. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 3.8. The
provisions of this paragraph (h) shall similarly apply to successive
consolidations, mergers, sales or conveyances. The Warrant Agent shall be
under no duty or responsibility to determine the correctness of any provisions
contained in any provisions contained in any such agreement relating either to
the kind or amount of shares of stock or other securities or property
receivable upon exercise of Warrants or with respect to the method employed and
provided therein for any adjustments and shall be entitled to rely upon the
provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and
12
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
3.9 Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates or
to distribute Warrant Certificates that evidence fractional Warrants. In lieu
of such fractional Warrants, there shall be paid to the registered holder of
the Warrant Certificates with regard to which such fractional Warrants would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a full Warrant. For purposes of this Section, the
current market value of a Warrant shall be the closing price of one Warrant (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date on which such fractional Warrant would have been otherwise
issuable.
(b) Notwithstanding any adjustment pursuant to Section 3.9 in
the number of Shares purchasable upon the exercise of a Warrant, the Company
shall not be required to issue fractions of Shares upon exercise of the
Warrants or to distribute certificates which evidence fractional Shares. In
lieu of fractional Shares, there shall be paid to the registered holders of
Warrant Certificates at the time such Warrant Certificates are exercised as
herein provided an amount in cash equal to the same fraction of the current
market value of a share of {Common/Preferred Stock}. For purposes of this
Section 3.9, the current market value of a share of {Common/Preferred Stock}
shall be the closing price of a share of {Common/Preferred Stock} (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date of such exercise.
(c) The closing price for each day shall be the last sale
price, regular way, or, if no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Warrants or Stock, as the case may be, is not listed or
admitted to trading on such exchange, as reported on the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities
13
exchange on which the Warrants or {Common/Preferred Stock}, respectively, is
listed or admitted to trading, or if the Warrants or {Common/Preferred Stock},
as the case may be, is not listed or admitted to trading on any national
securities exchange, as reported on Nasdaq National Market or, if the Warrants
or Stock, as the case may be, is not listed or admitted to trading on the
Nasdaq National Market, as reported on Nasdaq.
3.10 Notices to Warrantholders. Upon any adjustment of
the number of Shares purchasable upon exercise of each Warrant, the Warrant
Price or the number of Warrants outstanding, the Company within 20 calendar
days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Company (who may be the regular auditors of the Company)
setting forth the Warrant Price and either the number of Shares purchasable
upon exercise of each Warrant or the additional number of Warrants to be issued
for each previously outstanding Warrant, as the case may be, after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such adjustment was made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as part of the
notice required to be mailed under the other provisions of this Section 3.10.
The Company shall cause written notice of such later
Distribution Date, such later Expiration Date, such Call Price, Call Date and
Call Terms and such Reduced Exercise Price and Reduced Exercise Price Period,
as the case may be, to be given as soon as practicable to the Warrant Agent and
to each of the registered holders of the Warrant Certificates by first class
mail, postage prepaid, at such holder's address appearing on the Warrant
Register. In addition to the written notice referred to in the preceding
sentence, the Company shall make a public announcement in a daily morning
newspaper of general circulation in New York City and in San Francisco of such
earlier Distribution Date, such later Expiration Date, such Call Price, Call
Date and Call Terms and such Reduced Exercise Price and Reduced Exercise Price
Period, as the case may be, at least on week for two successive weeks prior to
the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of
14
{Common/Preferred Stock} or make any distribution (other than a cash dividend)
to the holders of is shares of {Common/Preferred Stock}, or
(b) the Company shall offer to the holders of its shares of
{Common/Preferred Stock} any additional shares of {Common/Preferred Stock} or
securities convertible into shares of {Common/Preferred Stock} or any right to
subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up
of the Company (other than in connection with a consolidation, merger or sale
of all or substantially all of its property, assets and business as an
entirety),
(d) the Company shall cause written notice of such event to
be filed with the Warrant Agent and shall cause written notice of such event to
be given to each of the registered holders of the Warrant Certificates as such
holder's address appearing on the Warrant Register, by first class mail,
postage prepaid, and (ii) make a public announcement in a daily newspaper of
general circulation in New York City and in San Francisco of such event, such
giving of notice and publication to be completed at least 10 calendar days (or
20 calendar days in any case specified in clause (c) above) prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 3.10 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
ARTICLE 4
Exchange and Transfer of Warrant Certificates
4.1 Exchange and Transfer. Upon surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants and the transfer of Warrants may be registered in
whole or in part; provided that such other Warrant Certificates shall evidence
the same aggregate number of Warrants as the Warrant Certificates surrendered
for
15
exchange or registration of transfer. The Warrant Agent shall keep, at its
corporate trust office, books in which it shall register Warrant Certificates
and exchanges and transfers of outstanding Warrant Certificates, upon surrender
of the Warrant Certificates to the Warrant Agent at its corporate trust office
for exchange or registration of transfer, properly completed and duly endorsed
and duly signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed (under the Medallion Program) by (a) a bank or trust
company, (b) a broker or dealer that is a member of the Nasdaq or (c) a member
of a national securities exchange and accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer. Whenever any Warrant Certificates
are surrendered for exchange or registration of transfer, an authorized officer
of the Warrant Agent shall mutually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificate duly
authorized and executed by the Company, as so requested. The Warrant Agent
shall not be required to effect any exchange or registration of transfer that
will result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer 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 exchange or registration of transfer.
4.2 Treatment of Holders of Warrant Certificates. Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that, until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
16
4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
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 canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in manner satisfactory to the Company.
ARTICLE 5
Concerning the Warrant Agent
5.1 Warrant Agent. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
5.2 Conditions of Warrant Agent's obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following (to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it
will take any corporate action that may be reasonably necessary in order to
fulfill its obligations under this Agreement, and the Warrant Certificates, and
that it will not take any action that would impair its ability to perform its
obligations under this Agreement and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses
17
(including reasonable counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as the
Warrant Agent hereunder, as well as the costs and expenses of defending against
any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as an agent of the Company, and the Warrant Agent does not assume
any obligation or relationship of agency or trust for or with any of the owners
or holders of the Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion of
such counsel.
(e) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(f) Certain Transactions. The Warrant Agent and its
officers, directors and employees may buy, sell or deal in any of the Shares or
other securities of the Company and may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it or they
would have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of the Shares or other
obligations of the Company as freely as if it were not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the
Warrant Agreement, the Warrant Agent shall not be under any liability for
interest on any moneys or other consideration at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
18
(h) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of
the Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificates (except the Warrant Agent shall be
responsible for any representations of the Warrant Agent herein and for its
countersignature on the Warrant Certificates), all of which are made solely by
the Company.
(j) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth, but no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application or by the Company of the proceeds of the Warrant
Certificates. The Warrant Agent shall have not duty or responsibility in case
of any default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or in the case of the receipt of any
written demand from a holder or a Warrant Certificate with respect to such
default, including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demands upon the
Company.
(k) Instructions. The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or any Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any statement
signed by any one of such officer of the Company with respect to any fact or
matter (unless other evidence in respect thereof is herein specifically
19
prescribed) which may be deemed to be conclusively proved and established by
such signed statement.
5.3 Registration and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that at all times there shall be a
Warrant Agent hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The Warrant Agent may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 5.2(b) hereof for,
and to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or shall file a petition seeking relief under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or similar law or make an assignment
for the benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer
20
shall have taken charge or control of the Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Warrant Agent, qualified in accordance with the terms of this
Agreement, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment of a successor Warrant
Agent and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all moneys, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
is shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of the parties hereto.
ARTICLE 6
Miscellaneous
6.1 Supplements and Amendments. This Agreement may be
amended or supplemented from time to time by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein, or in regard to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or
21
desirable, provided such action shall not adversely affect the interest of the
holders of the Warrant Certificates.
6.2 Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
6.3 Addresses. Any communication to the Warrant Agent
with respect to this Agreement shall be addressed to the address set forth in
the Warrant Agreement, and any such communication to the Company shall be
addressed to the Company at the following address:
Heftel Broadcasting Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
6.4 Delivery of Prospectus. If the Company is required
under applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the Shares issued
upon such exercise, a copy of the prospectus.
6.5 Obtaining of Governmental Approvals. The Company
will from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Shares issued upon exercise of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
6.6 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement is intended, or shall be construed, to confer upon,
or give to, any person or corporation other than the Company, the Warrant Agent
and the holders of the Warrant Certificates, any right, remedy
22
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof. All covenants, conditions,
stipulations, promises and agreements contained in this Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and their
successors and of the holders of the Warrant Certificates.
6.7 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
6.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
6.9 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
6.10 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of California and for all purposes shall be construed in
accordance with the laws of such State.
6.11 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
6.12 Termination. This Agreement shall terminate at the
close of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when the Warrants have been
exercised.