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EXHIBIT 4.12
STAR BANC CORPORATION
Form of Debt Warrant Agreement*
THIS WARRANT AGREEMENT dated as of __________, ____, between Star
Banc Corporation, an Ohio corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), and _______________________ as Warrant Agent (herein called the "Warrant
Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Subordinated] Indenture") dated as of __________, ____, between the Company and
_________________________, as trustee (the "[Senior] [Subordinated] Trustee")],
providing for the issuance from time to time of its unsecured [senior]
[subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Subordinated] Debt Securities"), to be issued in one or more series
as provided in the [Senior] [Subordinated] Indenture; [if Warrant Securities are
not under same Indenture as Debt Securities to which they are attached -- and an
Indenture (the "[Senior] [Subordinated] Indenture", the [Senior] and
[Subordinated] Indentures being referred to collectively as the "Indentures")
dated as of ____________, between the Company and ____________________________,
as trustee (the "[Senior] [Subordinated] Trustee", the [Senior] and
[Subordinated] Trustees being referred to collectively as the "Trustees"),
providing for the issuance from time to time of its [senior] and [subordinated]
debentures, notes or other evidence of indebtedness (the "[Senior]
[Subordinated] Debt Securities", the [Senior] and [Subordinated] Debt
Securities", the [Senior] and [Subordinated] Debt Securities being referred to
collectively as the "Debt Securities"), to be issued in one or more series as
provided in the [Senior] [Subordinated] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold with
Debt Securities or Preferred Stock -- [Title of Debt Securities or Preferred
Stock being offered] (the "Offered Securities") with] warrant certificates
evidencing one or more warrants (the "Warrants" or individually a "Warrant")
repre-
____________________________________
* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars or in foreign currency or European Currency Units
("ECU").
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senting the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to the Agreement being herein called
the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company 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 OF WARRANT AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and _______________ (the "Detachable Date")] [and shall not be
separately transferable and 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 a Warrant Security in
the principal amount of ______________. [If Offered Securities and Warrants --
Warrant Certificates shall be initially issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
____________ Warrants for each [________ principal amount] [_______ shares] of
Offered Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A hereto, shall be dated
_____________ 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
same 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
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comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by the Chairman of the Board, the President or a Vice
President of the Company and by the Treasurer or one of the Assistant Treasurers
or the Secretary or one of the Assistant Secretaries of the Company under its
corporate seal reproduced thereon. 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 Certificates 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 issued hereunder.
In case 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 by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be officer of the Company; and any Warrant
Certificate may be signed on behalf of 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 person was not such officer.
The term "holders" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all time to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
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SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
_________________ aggregate principal amount of Warrant Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) 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, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
_______________ principal amount of Warrant Securities 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
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.03(c).
SECTION 1.04. 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 Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing Warrant Certificates may determine, as evidenced by their execution at
such Warrant Certificates.
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. 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.
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ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. During the period from ___________,
through and including _______________, the exercise price of each Warrant will
be ________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________. During the period from ____________, through and
including _____________, the exercise price of each Warrant will be _________
plus [accrued amortization of the original issue discount] [accrued interest]
from _______________. [In each case, the original issued discount will be
amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months.]
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant price". [The original issue discount for each _______ principal
amount of Warrant Securities is ______________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[_________] and at or before 5 P.M., New York City time, on _____________ [or
such later date as the Company may designate, by notice to the Warrant Agent and
the holders of Warrant Certificates mailed to their addresses as set forth in
the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant not
exercised at or before 5 P.M., New York City time, on the Expiration Date shall
become void, and all rights of the holder of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by, in each case,] [by bank wire transfer] in immediately available funds the
Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate
trust office [or at _______________________________________________________],
provided that such exercise is subject to receipt within five business days of
such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate
with the form of election to purchase Warrant Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly executed
[including any applicable certifications if the Warrant Securities are issuable
in bearer form].
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The date on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificates as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar denominated
funds -- or in other account designated by the Company] and shall advise the
Company by telephone at the end of each day an which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] 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 Warrant Securities 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 or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any Warrant,
the Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in (fully
registered form, registered in such name or names as may be directed by such
holder] [bearer form, provided the holder has furnished to the Warrant Agent all
certifications required by applicable U.S. Treasury regulations for the delivery
of bearer securities and only if the Company has no reason to know that the
certification(s) is false]. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised. [Unless otherwise instructed by the Company, Warrant Securities in
bearer form shall be delivered to or upon the order of the holder of such
Warrant Certificate only outside the United States and its possessions.]
(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 issue of the Warrant Securities, and in the event that any such
transfer
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in involved, the Company shall not be required to issue or deliver any Warrant
Security 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.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholder 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 holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the [Indenture relating to the Warrant
Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company 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 lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing 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 expenses (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 represent an additional
contractual obligation of the Company, whether or not the mutilated, 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)
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all other rights and remedies with respect to the replacement of mutilated,
lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or Lease.
If at any time there shall be it merger, consolidation, conveyance, transfer or
lease of assets subject to Section 801 of the [Indenture relating to the Warrant
Securities], then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein and
in the Warrant as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming 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 Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver Warrant
Securities in its own name pursuant to such Indenture, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease complies with the provisions of this Section 3.04 and such Indenture.
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ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchange or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or __________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [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 exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or __________________] for exchange or registration
of transfer, properly endorsed or 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 so
surrendered for exchange [or registration of transfer], an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates 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] which 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
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valid obligations of the Company, evidencing the same obligations, and entitled
to the sane benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange [or registration of transfer].
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or 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,] [if
registered Warrants --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 of Warrant Certificate 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.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange [, registration of 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 the Warrant Agent
and shall not be reissued and, except as expressly permitted by this agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. Warrant Agent. The Company hereby appoints
_____________________ as Warrant Agent of the Company in respect of the
Warrants and 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 powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby 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
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the term and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the term and provisions
hereof.
SECTION 5.02. 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 counsel fees) incurred without
a negligence 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 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 Warrant Agent hereunder, an
well as the costs and expenses of defending against any claim of such liability.
(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 obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice 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 in accordance with the advice of such counsel.
(d) 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.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that
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it or they would if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or 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 Warrant
Securities or other obligations of the Company as freely as it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to
prevent the Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no 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,
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any Invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's a countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only 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 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 any of the Warrant Certificates or for the
application by the Company of the proceeds of the Warrant Certificates. 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 pro-
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vided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment 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 the Warrant have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of much intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. 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 intended 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 authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or affairs, or any
public
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officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, 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 an aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be 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 to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and 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 VI.
MISCELLANEOUS.
SECTION 6.01. 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 of curing, correcting or
supplementing any detective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not affect
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adversely the interest of the holders of the Warrant Certificates.
SECTION 6.02. Notice 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.
SECTION 6.03. Addresses. Any communication from the Company to other
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: and any communication from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to Star Banc Corporation,
Star Bank Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. 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 a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale,
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transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person 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.
SECTION 6.08. 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.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. 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.
IN WITNESS WHEREOF Star Banc Corporation and
have this caused this Agreement to be signed by the respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
STAR BANC CORPORATION
By__________________________________________
Title:
Attest:
____________________________
Title:
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[Warrant Agent]
By__________________________________________
Title:
Attest:
____________________________
Title:
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Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to , Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
STAR BANC CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON __________
No. ___________ _____________ Warrants
This certifies that [the bearer is the] [_________ _________________
or registered assigns is the registered] owner of the above-indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities with Warrants
which are not immediately detachable --, subject to the [bearer] [registered
owner] qualifying as a "holder" of this Warrant Certificate, as hereinafter
defined] to purchase, at any time [after 5 P.M., New York City time, on
___________ and] on or before 5 P.M., New York City time, on ___________ ,
________ principal amount of [Title of Warrant Securities] (the "Warrant
Securities"), of Star Banc Corporation (the "Company"), issued and to be issued
under the Indenture (as hereinafter defined), on the following basis: during the
period from ______________, through and including _____________ the exercise
price of each Warrant will be ____________ plus [accrued amortization of the
original issue discount] [accrued interest] from _____________; during the
period from ________________ through and including _____________ the exercise
price of each Warrant will be ____________ plus [accrued amortization of the
original issue discount] [accrued interest] from _____________; [in each case,
the original issue discount will be amortized at a __% annual rate, computed on
an annual basis using the "interest" method
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and using a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each ______ principal amount of
Warrant Securities is ____________.] The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof,
including any applicable certifications if the Warrants Securities are issuable
in bearer form, and by paying in full [in lawful money of the United States of
America] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or __________], which is, on the date hereof, at
the address on the reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to
________________ Offered Securities with Warrants which are not immediately
detachable -- , prior to __________ (the "Detachable Date"), the [bearer]
[registered owner] of the Company's [title of Offered Securities] to which this
Warrant Certificate is initially attached, and after such Detachable Date,] [the
bearer of this Warrant Certificate] [the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form in
denominations of ________ and any integral multiples thereof. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________ _________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file
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at the above-mentioned office of the Warrant Agent [and at ___________________].
The Warrant Securities to be issued and delivered upon the exercise
of the Warrants evidenced by this Warrant Certificate will be issued under and
in accordance with an indenture (the "Indenture"), dated as of __________, ____
between the Company and ________________, as trustee (the "Trustee"), and will
be subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at _________________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to _______________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with Warrants which are immediately detachable -- Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
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.] [effected by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any
of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
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This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
STAR BANC CORPORATION
By:______________________________________
Authorized Officer
Attest:
____________________________
Countersigned:
____________________________
As Warrant Agent
By:_________________________
Authorized Signature
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[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ________________ [or __________________], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________
Warrants, evidenced by this Warrant Certificate, to purchase ________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Star
Banc Corporation and represents that he has tendered payment for such Warrant
Securities in [Dollars] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Star Banc Corporation,
c/o [insert name and address of Warrant Agent], in the amount of _________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in [bearer] [fully registered] form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below. [However, unless
otherwise designated by the Company, Warrant Securities in bearer form shall be
delivered to or upon the order of the holder of such Warrant Certificate only
outside the United States and its possessions.]
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If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ___________________ Name______________________________________________
__________________________ Address___________________________________________
(Insert Social Security or
Other Identifying Number ___________________________________________
of Holder)
Signature___________________________________
[If registered Warrant -- [If registered Warrant --
Signature Guaranteed (Signature must conform in all
__________________________] respects to name of holder as specified on
face of this Warrant Certificate and must
bear a signature guarantee by a bank, trust
company or member broker of the New York,
Midwest or Pacific
Stock Exchange)]
The Warrants evidenced hereby may be exercised at the following
address:
By hand at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
By mail at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate evidencing unexercised Warrants -- complete as
appropriate.]
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[If registered Warrant]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED_________________________________________________
hereby sells, assigns and transfers unto
___________________________ ____________________________________________
(Please print name) (Please insert social security or
other identifying number)
___________________________
(Address)
___________________________
(City, including zip code)
the Warrants 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 in the premises.
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, Midwest or
Pacific Stock Exchange)
Signature Guaranteed
___________________________
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CERTIFICATION* AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]
CERTIFICATE
STAR BANC CORPORATION
[Title of Warrant Securities] Issuable Upon Exercise of Warrants
("Warrant Securities")
To: Star Banc Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of_______________.
The undersigned hereby certifies that as of the date hereof, the
Warrant Securities which are to be delivered to the undersigned in bearer form
upon the exercise by the undersigned of such Warrant Certificate (i) are owned
by persons that are not United States Persons, as defined below; (ii) are owned
by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165.12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations through
foreign branches of United States financial institutions and who hold the
obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides a
certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. The undersigned undertakes
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to advise you by tested telex followed by written confirmation if the statement
in the immediately preceding sentence is not correct on the date of delivery of
the above-captioned Securities in bearer form.
We understand that this certificate is required in connection with
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate. "United
States Person" shall mean a citizen or resident of the United States of America
(including the District of Columbia), a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof or an estate or trust that is subject to United States
federal income taxation regardless of the source of its income.
Date: _________________
[Name of Person Entitled to Receive Warrant
Securities Described Herein]
__________________________________________________
(Authorized Signatory)
Name:_____________________________________________
Title:
_______________
Subject to change in accordance with changes in tax laws and regulations.
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[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
STAR BANC CORPORATION
[Title of Warrant Securities] Issuable Upon Exercise of Warrants
("Warrant Securities")
To: Star Banc Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of_________________.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(V)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
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Date: _________________
[Name of Person Entitled to Delivery of
Warrant Securities Described Herein]
__________________________________________________
(Authorized Signatory)
Name:_____________________________________________
Title:____________________________________________
_________________
Subject to change in accordance with changes in tax laws and regulations.
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