EXHIBIT 4.7
FORM OF PREFERRED STOCK WARRANT AGREEMENT
-------------------------------------------------------------------------------
THE ▇▇▇▇ DISNEY COMPANY
AND
-----------------------,
AS WARRANT AGENT
-----------------
WARRANT AGREEMENT
-----------------
DATED AS OF
---------
-------------------------------------------------------------------------------
PAGE
----
TABLE OF CONTENTS (1)
---------------------
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. . . . . . . . . . . 1
Section 1.2 Form of Warrant Certificate . . . . . . . . . . . . . 2
Section 1.3 Execution and Authentication of Warrant Certificates. 2
Section 1.4 Temporary Warrant Certificates. . . . . . . . . . . . 3
Section 1.5 Payment of Taxes. . . . . . . . . . . . . . . . . . . 4
Section 1.6 Definition of Holder. . . . . . . . . . . . . . . . . 4
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . 5
Section 2.2 Duration of Warrants. . . . . . . . . . . . . . . . . 5
Section 2.3 Exercise of Warrants. . . . . . . . . . . . . . . . . 5
Section 2.4 Reservation of Shares . . . . . . . . . . . . . . . . 6
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Company] . . . . . . . . . . 7
Section 3.2 Adjustment of Exercise Price and Number
of Shares Purchasable or Number of Warrants. . . . . 7
-------------
(1) The Table of Contents is not a part of the Warrant Agreement.
ii
PAGE
----
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer
of Warrant Certificates . . . . . . . . . . . . . . 11
Section 4.2 Mutilated, Destroyed, Lost or Stolen
Warrant Certificates. . . . . . . . . . . . . . . . 12
Section 4.3 Persons Deemed Owners . . . . . . . . . . . . . . . . 13
Section 4.4 Cancellation of Warrant Certificates. . . . . . . . . 13
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by
Warrants or Warrant Certificates . . . . . . . . . . 14
Section 5.2 Holder of Warrant Certificate May Enforce Rights . . . 14
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . 14
Section 6.2 Conditions of Warrant Agent's Obligations . . . . . . 14
Section 6.3 Resignation, Removal and Assignment of Successor. . . 17
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject
to Certain Conditions . . . . . . . . . . . . . . . . 18
Section 7.2 Rights and Duties of Successor Corporation. . . . . . . 18
iii
PAGE
----
Section 7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.4 Notices and Demands to the Company and Warrant Agent. . 19
Section 7.5 Notices to Warrantholders . . . . . . . . . . . . . . . 19
Section 7.6 Addresses . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . 21
Section 7.8 Delivery of Prospectus. . . . . . . . . . . . . . . . . 21
Section 7.9 Obtaining of Governmental Approvals . . . . . . . . . . 21
Section 7.10 Persons Having Rights Under Warrant Agreement . . . . . 22
Section 7.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . 22
Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . 22
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Exhibit A - Form of Warrant Certificate. . . . . . . . . . . . . . . . A-1
iv
THIS WARRANT AGREEMENT, dated as of __________, between The ▇▇▇▇
Disney Company, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company") and ____________, a [corporation] [national
banking association] organized and existing under the laws of _____________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF OFFERED SECURITIES AND
WARRANTS - [title of Offered Securities being offered] (the "Offered
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase shares of
[designation of Preferred Stock] (the "Preferred Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be
issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 ISSUANCE OF WARRANT CERTIFICATES. [IF WARRANTS ALONE --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[IF OFFERED SECURITIES AND WARRANTS -- Warrant Certificates shall be
[initially] issued in units with the Offered Securities and shall [not]
be separately transferable [before __________, 19__ (the "Detachable Date")].
Each such unit shall consist of a Warrant Certificate or Certificates
evidencing an aggregate of __________ Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase one share of Preferred Stock.
Section 1.2 FORM OF WARRANT CERTIFICATE. The Warrant Certificates
(including the Form(s) of Exercise [and Assignment] to be set forth on the
reverse thereof) shall be in substantially the form set forth in Exhibit A
hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, with the execution thereof by such officers conclusively
evidencing such determination) and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on
which the Warrant Certificates may be listed or as may, consistently
herewith, be determined by the officers executing such Warrant Certificates,
with the execution thereof by such officers conclusively evidencing such
determination.
Section 1.3 EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES. The
Warrant Certificates shall be executed on behalf of the Company by its
Chairman, its Chief Executive Officer, its President or one of its Vice
Presidents (any reference to a Vice President of the Company herein shall be
deemed to include any Vice President of the Company whether or not designated
by a number or a word or words added before or after the title "Vice
President"), under its corporate seal reproduced thereon attested to by its
Treasurer or Secretary or one of its Assistant Treasurers or Assistant
Secretaries. The signature of any of these officers on the Warrant
Certificates may be manual or facsimile.
Warrant Certificates evidencing the right to purchase a number of shares
of Preferred Stock having an aggregate liquidation value not exceeding $
__________ (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, authenticate Warrant Certificates evidencing Warrants representing
the right to purchase a number of shares of Preferred Stock having an
aggregate liquidation value not exceeding $ _________ and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
authenticate a Warrant Certificate only if the Warrant Certificate is issued
in exchange or in substitution for one or more previously authenticated
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
2
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated 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, and the only evidence, that the Warrant
Certificate so authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Warrant Certificates or did not hold such offices at the date of such Warrant
Certificates.
Section 1.4 TEMPORARY WARRANT CERTIFICATES. Pending the preparation of
definitive Warrant Certificates, the Company may execute, and upon the order
of the Company the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the
definitive Warrant Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, with the
execution thereof by such officers conclusively evidencing such determination.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant
Certificates upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or ], without charge to
the Holder (as defined in Section 1.6 below). Upon surrender for
cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under
this Agreement as definitive Warrant Certificates.
3
Section 1.5 PAYMENT OF TAXES. The Company will pay all stamp taxes and
other duties, if any, to which, under the laws of the United States of
America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.6 DEFINITION OF HOLDER. The term "Holder" as used herein shall
mean [IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE
-- prior to the Detachable Date, the registered owner of the Offered Security
to which such Warrant Certificate was initially attached, and, after such
Detachable Date,] the person in whose name at the time such Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 4.1. [IF OFFERED SECURITIES AND WARRANTS
WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the
Company will, or will cause the registrar of the Offered Securities to, make
available to the Warrant Agent current information as to Holders of the Offered
Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 WARRANT PRICE.(2) During the period set forth in Section 2.2,
each Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company one share of Preferred Stock at the
exercise price of $ _________. Such exercise price of each Warrant is referred
to in this Agreement as the "Exercise Price."
Section 2.2 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant
Certificate may be exercised at any time, as specified herein, on or after [the
date thereof] [________, 19__] and at or before the close of business
on ________, 19__ (the "Expiration Date"). Each Warrant not exercised at or
before the close of business on the Expiration Date shall become void, and all
rights of the Holder of the Warrant Certificate evidencing such Warrant under
this Agreement or otherwise shall cease.
----------------------
(2) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
4
Section 2.3 EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.2, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds,] of the Exercise Price for each Warrant exercised.
The date on which payment in full of the Exercise Price for a Warrant and the
duly executed and completed Warrant Certificate are received by the Warrant
Agent shall be deemed to be the date on which such Warrant is exercised. The
Warrant Agent shall deposit all funds received by it as payment for the
exercise of Warrants to the account of the Company maintained with it for such
purpose and shall advise the Company by telephone at the end of each day on
which such a payment is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephonic advice to the Company
in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the terms
and conditions of this Agreement and the Warrant Certificates, advise the
Company of (i) the number of Warrants so exercised, (ii) the instructions of
each Holder of the Warrant Certificates evidencing such Warrants with respect
to delivery of the certificate or certificates representing shares of
Preferred Stock to which such Holder is entitled upon such exercise, and
instructions of such Holder as to delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iii)
such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, a certificate or certificates
representing the number of shares of Preferred Stock to which such Holder is
entitled in such name or names as may be directed by such Holder; and, if
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute and an authorized officer of the Warrant
Agent shall manually authenticate and deliver a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
5
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Preferred Stock; and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any shares of Preferred Stock until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that
no such tax or other charge is due.
Section 2.4 RESERVATION OF SHARES. For the purpose of enabling it to
satisfy any obligation to issue shares of Preferred Stock 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 shares of Preferred Stock, the
number of shares of Preferred Stock deliverable upon the exercise of all
outstanding Warrants.
The Company covenants that all shares of Preferred Stock 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.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [CALL OF WARRANTS BY THE COMPANY.](3) [IF WARRANTS ISSUED
HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right to
call and repurchase any or all Warrants on or after ________, 19__ (the "Call
Date") and upon the occurrence of [discuss events or circumstances under which
Company may call the Warrants] (the "Call Terms") at a price of $ ________ per
Warrant (the "Call Price"). Notice of such Call Price, Call Date and Call Terms
shall be given to registered holders of Warrants in the manner provided in
Section 7.5.]
-------------------------
(3) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
6
Section 3.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price, the number of shares
of Preferred Stock 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 3.2.
(a) If the Company shall (i) pay a dividend in or make a distribution
of shares of its capital stock, whether shares of Preferred Stock or shares
of its capital stock of any other class, (ii) subdivide its outstanding
shares of Preferred Stock, (iii) combine its outstanding shares of Preferred
Stock into a smaller number of shares of Preferred Stock or (iv) issue any
shares of its capital stock in a reclassification of the 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 of Preferred Stock 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 of
Preferred Stock 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
immediately after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all
holders of its outstanding Preferred Stock, without any charge to such
holders, entitling them to subscribe for or purchase shares of Preferred
Stock at a price per share that is lower than the market price per share of
Preferred Stock (as defined in paragraph (e) below) at the record date
mentioned below, the number of shares of Preferred Stock thereafter
purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of shares of Preferred Stock theretofore purchasable
upon exercise of each Warrant by a fraction, of which the numerator shall be
(i) the number of shares of Preferred Stock outstanding on the date of
issuance of such rights, options or warrants plus the number of additional
shares of Preferred Stock offered for subscription or purchase, and of which
the denominator shall be (ii) the number of shares of Preferred Stock
outstanding on the date of issuance of such rights, options or warrants plus
the number of shares which the aggregate offering price of the total number
of shares of Preferred Stock so offered would purchase at the market price
per share of Preferred Stock at such record
7
date. Such adjustment shall be made whenever such rights, options or
warrants are issued, and shall become effective retroactive to immediately
after the record date for the determination of stockholders entitled to
receive such rights, options or warrants.
(c) If the Company shall distribute to all holders of its shares of
Preferred Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions payable out of capital surplus and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Preferred Stock (excluding those referred
to in paragraph (b) above), then in each case the number of shares of
Preferred Stock thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of shares of Preferred Stock
theretofore purchasable upon the exercise of each Warrant, by a fraction, of
which the numerator shall be (i) the then current market price per share of
Preferred Stock (as defined in paragraph (e) below) on the date of such
distribution, and of which the denominator shall be (ii) the then current
market price per share of Preferred Stock less the then fair value (as
determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights, options or
warrants or convertible or exchangeable securities applicable 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 immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(d) In the event of any capital reorganization or any
reclassification of the Preferred Stock (except as provided in paragraphs (a)
through (c) above), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Preferred Stock to which he or she 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.
(e) For the purpose of any computation under paragraphs (b) and (c)
of this Section 3.02, the current or closing market price per share of
Preferred Stock at any date shall be deemed to be the average of the daily
closing
8
prices for ____ consecutive trading days commencing __________ trading days
before the date of such computation. The closing price for each day shall be
[the last sale price] 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 (the
"NYSE") or if the Preferred Stock is not listed on the NYSE, then on the
principal United States national securities exchange on which the Preferred
Stock is listed or quoted. If the Preferred Stock is not listed or quoted on
any United States national securities exchange, then the current or closing
market price per share of Preferred Stock shall be determined by the Board of
Directors of the Company in good faith.
(f) Whenever the number of shares of Preferred Stock purchasable
upon the exercise of each Warrant is adjusted as herein provided, the
Exercise Price payable upon the 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 be the number of shares so purchasable
immediately thereafter.
(g) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (d) of this Section 3.2, to adjust the
number of Warrants in substitution for an adjustment in the number of shares
of Preferred Stock 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 of Preferred Stock 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 Exercise Price
in effect prior to adjustment of the Exercise Price by the Exercise Price in
effect after adjustment of the Exercise Price. The Company shall notify the
holders of Warrants, in the same manner as provided in the first paragraph of
Section 7.5, 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 (g) 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
paragraph (h), 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
9
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 (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.
(h) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to paragraph (g) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants, there shall be
paid to the registered holders 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 on
the trading day immediately prior to the date on which such fractional
Warrant would have been otherwise issuable (the "Valuation Date"). For
purposes of this paragraph (h), the current market value of a Warrant shall
be the aggregate closing market price on the Valuation Date (determined as
set forth in paragraph (e)) of all shares of Preferred Stock issuable upon
exercise of one Warrant plus the fair value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of any
other assets or securities purchasable upon exercise of one Warrant less the
Exercise Price of one Warrant.
(i) Notwithstanding any adjustment pursuant to Section 3.2 in the
number of shares of Preferred Stock purchasable upon the exercise of a
Warrant, the Company shall not be required to issue fractions of shares of
Preferred Stock 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 Preferred
Stock. For purposes of this paragraph (i), the current market value of a
share of Preferred Stock shall be the closing market price (determined as set
forth in paragraph (e)) of a share of Preferred Stock for the trading day
immediately prior to the date of such exercise.
ARTICLE IV
[REGISTRATION,] EXCHANGE, TRANSFER AND
10
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 REGISTRATION, EXCHANGE AND TRANSFER OF WARRANT
CERTIFICATES. [If registered Warrants - - The Warrant Agent shall keep, at its
corporate trust office [and at _________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and transfers of outstanding Warrant Certificates].
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE
-- Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer or exchange of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer or exchange the Warrant Certificate or Certificates to which
such Offered Security was initially attached. After the Detachable Date, upon]
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF
WARRANTS ALONE -- Upon] surrender at the corporate trust office of the Warrant
Agent [or _________] of Warrant Certificates properly endorsed [or accompanied
by appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates or may be transferred in whole or in part; provided that Warrant
Certificates issued in exchange for [or upon transfer of] surrendered Warrant
Certificates shall evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered. No service charge shall be made for any exchange
[or transfer] of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or governmental charge that may
be imposed in connection with any such exchange [or transfer]. Whenever any
Warrant Certificates are so surrendered for exchange [or transfer], the Company
shall execute and an authorized officer of the Warrant Agent shall manually
authenticate and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates as so requested. The Warrant Agent shall
not be required to effect any exchange [or transfer] which would 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 transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange [or transfer].
11
Section 4.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT
CERTIFICATES. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Warrant Certificate and of the ownership thereof and (ii) such security
or indemnity as may be required by them to save each of them and any agent of
either of them harmless, 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 upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. 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
expenses (including the fees and expenses of the Warrant Agent) connected
therewith. Every new Warrant Certificate issued pursuant to this Section in
lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Warrant Certificates.
Section 4.3 PERSONS DEEMED OWNERS. [IF OFFERED SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company, the Warrant Agent and all other persons may treat the owner of any
Offered Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date, and] Prior to due
presentment of a Warrant Certificate for registration of transfer, the Company,
the Warrant Agent and all other persons may treat the Holder as the 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.
12
Section 4.4 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange[, transfer] or exercise of the Warrants
evidenced 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 it and shall not be reissued
and, except as expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in lieu or in exchange thereof. The Company may at
any time deliver to the Warrant Agent for cancellation any Warrant
Certificates previously issued hereunder which the Company may have acquired
in any manner whatsoever, and all Warrant Certificates so delivered shall be
promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates
held by the Warrant Agent shall be destroyed by it unless by written order
the Company requests their return to it.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 NO RIGHTS AS STOCKHOLDERS CONFERRED BY WARRANTS OR
WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to receive dividends.
Section 5.2 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, any
stockholder or the Holder of any other Warrant Certificate, may, on its own
behalf and for its own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce or
otherwise in respect of its right to exercise the Warrant or Warrants
evidenced by his or her Warrant Certificate in the manner provided in the
Warrant Certificates and in this Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 WARRANT AGENT. The Company hereby appoints
____________ as Warrant Agent of the Company in respect of the Warrants and
13
the Warrant Certificates upon the terms and subject to the conditions herein
set forth, and ___________ hereby accepts such appointment. The Warrant
Agent shall have the power and authority granted to and conferred upon it in
the Warrant Certificates and hereby and such further power 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 power and
authority contained in the Warrant Certificates are subject to and governed
by the terms and provisions hereof.
Section 6.2 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) 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 (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 for, and 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 such
Warrant Agent hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance at any time of its powers or duties hereunder. The
obligations of the Company under this subsection (a) shall survive the
exercise of the Warrant Certificates and the resignation or removal of the
Warrant Agent.
(b) AGENT FOR THE COMPANY. In acting under this Warrant
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 of agency or trust for or with any of the owners or holders
of the Warrant Certificates.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
14
action taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it would
have if it were not such Warrant Agent, officer, director, employee or other
agent, and, to the extent permitted by applicable law, it 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 securities or other obligations of the Company as freely as if it were not
such Warrant Agent, officer, director, employee or other agent.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Warrant Agent and except for the negligence of the Warrant Agent.
(g) 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.
(h) 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 as to the Warrant Agent's
Certificate of Authentication thereon), all of which are made solely by the
Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant
15
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 by the Company of the
proceeds of the Warrant Certificates or any exercise of the Warrants
evidenced thereby. The Warrant Agent shall have no duty or responsibility in
case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of
the receipt of any written demand from a Holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 7.4 hereof,
to make any demand upon the Company.
Section 6.3 RESIGNATION, REMOVAL AND ASSIGNMENT OF SUCCESSOR. (a)
The Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all of 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 it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be
less than three months after the date on which such notice is given. The
Warrant Agent hereunder 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 on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the
appointment by the Company 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, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust powers) by an
instrument in writing filed with such successor Warrant Agent and the
acceptance of such appointment by such successor Warrant Agent pursuant to
Section 6.3(d).
(c) In case at any time the Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a voluntary petition in bankruptcy or make an
assignment
16
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 approving
any petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge
or control of the Warrant Agent or of its property or affairs, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in writing filed with the successor Warrant Agent. Upon the
appointment as aforesaid 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 monies, 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 succeeding to all or substantially all of the corporate trust
business of the Warrant Agent, provided that it 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 any of
the parties hereto.
ARTICLE VII
MISCELLANEOUS
17
Section 7.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES,
LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company
may consolidate with, or sell or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or into
which the Company is merged or the corporation which acquired by purchase or
conveyance all or substantially all of the assets of the Company shall
expressly assume the obligations of the Company hereunder.
Section 7.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case
of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company, with the same effect as
if it had been named herein, and the predecessor corporation, except in the
event of a lease, shall be relieved of any further obligation under this
Agreement and the Warrants. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all of the shares of Preferred Stock issuable pursuant to the
terms hereof.
Section 7.3 AMENDMENT. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or
supplementing any defective provision contained herein, or making such
provisions in regard to matters or questions arising under this Agreement as
the Company may deem necessary or desirable; provided that such action shall
not adversely affect the interests of the Holders of the Warrant Certificates
in any material respect. Any amendment or supplement to this Agreement or
the Warrants that has a material adverse effect on the interests of Holders
of any series of Warrants shall require the written consent of the Holders of
a majority of the then outstanding Warrants of such series. The consent of
each Holder of a Warrant affected shall be required for any amendment
pursuant to which the Warrant Price would be increased or the number of
shares of Preferred Stock purchasable upon exercise of Warrants would be
decreased. The Warrant Agent may, but shall not be obligated to, enter into
any amendment to this Agreement which affects the Warrant Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 7.4 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
18
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.
Section 7.5 NOTICES TO WARRANTHOLDERS. Upon any adjustment of the
number of shares purchasable upon exercise of each Warrant, the Exercise
Price or the number of Warrants outstanding pursuant to Section 3.2, the
Company within _______ 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 Exercise Price and either
the number of shares of Preferred Stock and other securities or assets
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 are 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 provisions of this Section 7.5.
Pursuant to Sections 3.1 [add other sections as applicable], the
Company shall cause written notice of such Call Price, Call Date and Call
Terms [reference other items as applicable], 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
__________ of such Call Price, Call Date, and Call Terms
[reference other items as applicable], as the case may be, at least once a
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 Preferred Stock or make any distribution (other
than a cash dividend) to the holders of its shares of Preferred Stock; or
19
(b) the Company shall offer to the holders of its shares of
Preferred Stock any additional shares of Preferred Stock or securities
convertible into shares of 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 substantially all of its property, assets, and business as an
entirety);
then the Company shall (i) 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 at 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 ___________________ of such event, such giving of
notice and publication to be completed at least ________ calendar days 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 7.5 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.
Section 7.6 ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________, Attention: ________________, and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be
addressed to The ▇▇▇▇ Disney Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
Section 7.7 GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT
CERTIFICATE ISSUED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT
LIMITATION Section 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
20
Section 7.8 DELIVERY OF PROSPECTUS. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Preferred Stock (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant Certificate, the
Warrant Agent will deliver to the person designated to receive a certificate
representing shares of Preferred Stock, prior to or concurrently with the
delivery of such Securities, a Prospectus.
Section 7.9 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, to the extent
required, the maintenance of the effectiveness of a registration statement in
respect of the Preferred Stock under the Securities Act of 1933, as amended),
which may be or become required in connection with exercise of the Warrant
Certificates and the original issuance and delivery of the Preferred Stock.
Section 7.10 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions herein 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 or claim under or by reason of this Agreement or of any
covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements contained in
this Agreement shall be for the sole and exclusive benefit of the Company and
the Warrant Agent and their successors and of the Holders of the Warrant
Certificates.
Section 7.11 HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience of reference only and shall not
affect the construction hereof.
Sec;tion 7.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the
same instrument.
Section 7.13 INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of
21
the Warrant Agent [and at ___________] for inspection by the Holder
of any Warrant Certificate. The Warrant Agent may require such Holder to
submit its Warrant Certificate for inspection by it.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seal to be hereunto
affixed and attested, all as of the day and year first above written.
THE ▇▇▇▇ DISNEY COMPANY
By:
--------------------------------
[SEAL]
Attest
------------------------------
[Assistant] Secretary
[SEAL] Attest:
[Assistant] Secretary
[NAME OF WARRANT AGENT]
By:
--------------------------------
[SEAL]
Attest:
------------------------------
[Assistant] Secretary
23
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
FORM OF LEGEND IF OFFERED [Prior to ___________, this
SECURITIES WITH WARRANTS Warrant Certificate may be
WHICH ARE NOT IMMEDIATELY transferred or exchanged if
DETACHABLE and only if the [Title of
Security] to which it was
initially attached is so
transferred or exchanged.]
FORM OF LEGEND IF WARRANTS [Prior to
ARE NOT IMMEDIATELY _________________, Warrants
EXERCISABLE evidenced by this Warrant
Certificate cannot be
exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON ____________, 199__
THE ▇▇▇▇ DISNEY COMPANY
Warrant Certificate representing
Warrants to purchase
Preferred Stock
as described herein.
----------------------
No. __________ Warrants
This certifies that __________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, 19__, and] on or before the close of business
on ________, 19__, one share of the [designation of Preferred Stock]
("Preferred stock") of The ▇▇▇▇
A-1
Disney Company, (the "Company"), on the following basis.* During such period,
each Warrant shall entitle the Holder thereof, subject to the provisions of
the Warrant Agreement (as defined below), to purchase from the Company one
share of Preferred Stock at the exercise price of $ ________ (the "Exercise
Price"). The Holder of this Warrant Certificate may exercise the Warrants
evidenced hereby, in whole or in part, by surrendering this Warrant
Certificate, with the purchase form set forth hereon duly completed,
accompanied by payment in full, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds],
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor, as warrant agent (the "Warrant Agent") [or at ________],
the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement.
The term "Holder" as used herein shall mean [IF OFFERED DEBT
SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to
________, 19__ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date,] the person in whose name at the time
such Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 4.1 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase shares of Preferred Stock. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the registered owner hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, 19__ (the "Warrant Agreement"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies
---------------
* Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants.
A-2
of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ________].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--prior to ________, 19__ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. Additionally, on or
prior to the Detachable Date, each transfer of such Offered Security on the
register of the Offered Securities shall operate also to transfer this Warrant
Certificate. After the Detachable Date, this] [IF OFFERED DEBT SECURITIES WITH
WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE--This] Warrant
Certificate and all rights hereunder, may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Except as provided in the immediately preceding paragraph, after]
[IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR
WARRANTS ALONE-After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
______________________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof
to any of the rights of a stockholder, including, without limitation, the right
to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until authenticated by the Warrant Agent.
A-3
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated:
------------------
THE ▇▇▇▇ DISNEY COMPANY
By:
--------------------------------
Attest:
------------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
------------------------------------
As Warrant Agent
By:
--------------------------------
Authorized Signature
A-4
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, ____________, Attn: [or ____________],
which payment should specify the name of the Holder of this Warrant Certificate
and the number of Warrants exercised by such Holder. In addition, the Holder of
this Warrant Certificate should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to the
Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase ________ shares of the
[designation of Preferred Stock] ("Preferred Stock") of The ▇▇▇▇ Disney Company
and represents that he or she has tendered payment for such shares of Preferred
Stock [in cash or by certified check or official bank check in New York Clearing
House funds or by bank wire transfer in immediately available funds] to the
order of The ▇▇▇▇ Disney Company, c/o Treasurer, in the amount of $________ in
accordance with the terms hereof. The undersigned requests that said shares of
Preferred Stock be registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If said number of shares of Preferred Stock is less than all of the
shares of Preferred Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
A-5
Dated:
Name
------------------------------
(Please Print)
------------------------------
(Insert Social Security
or Other Identifying
Number of Holder)
Address
----------------------------
-----------------------------------
-----------------------------------
Signature (Signature must conform in all
respects to name of holder as specified
on the face of this Warrant Certificate
and must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Chicago or Pacific Stock
Exchange.)
This Warrant may be exercised at the following addresses:
By hand at
-------------------------------------
-------------------------------------
-------------------------------------
By mail at
-------------------------------------
-------------------------------------
-------------------------------------
A-6
(Instructions as to form and delivery of
certificates representing shares of Preferred Stock
and/or Warrant Certificates):
A-7
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED ____________________________ hereby sells, assigns
and transfers unto
------------------------------------
Please print name and address
(including zip code)
Please insert social security or
other identifying number
---------------------------------
------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
----------------------------------
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by a
bank, trust company or member broker of the New York,
Chicago or Pacific Stock Exchange.)
Signature Guaranteed:
A-8