EXHIBIT 4(d)
XXXXXX XXXXXX COMPANIES INC.
FORM OF WARRANT AGREEMENT
[FOR WARRANTS SOLD ATTACHED TO DEBT SECURITIES]/*/
THIS WARRANT AGREEMENT dated as of
between Xxxxxx Xxxxxx Companies Inc., a Virginia corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to) and as Warrant Agent
(hereinafter called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of August 1,
1990 (the "Indenture"), with Chemical Bank, as Trustee (the "Trustee") providing
for the issuance from time to time of its unsecured debt securities (the
"Securities"), to be issued in one or more series as provided in the Indenture;
and
WHEREAS, the Company proposes to sell [title of Securities being
offered] (the "Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or, individually a "Warrant") representing the
right to purchase [title of Securities purchasable through exercise of Warrants]
(the "Warrant Securities"), such warrant certificates and other warrant
certificates issued pursuant to this 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:
---------------
/*/ Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants and Offered Securities. Monetary amounts may
be in U.S. dollars or in foreign denominated currency or European Currency Units
(ECU).
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
Section 1.01. ISSUANCE OF WARRANTS. Warrants shall be initially
issued in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after , 19 (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 Warrant Securities in the principal amount of $
. 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 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 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 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 its Chairman of the Board, a Vice Chairman of the Board, its
President, a Vice President, its Treasurer, a Deputy Treasurer or an Assistant
Treasurer under its corporate seal and attested by its Secretary or an Assistant
Secretary. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
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 such 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.
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The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean 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 with Warrants which are not immediately
detachable -- or upon the register of the Offered Securities prior to the
Detachable Date. The Company will, or will cause the registrar of the Offered
Securities to, make available at all times 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.]
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 $ aggregate 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).
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. WARRANT PRICE. On , 19
the exercise price of each Warrant is $ .
During the period from , 19 through and
including , 19 , the exercise price of each Warrant will
be $ plus [accrued amortization of the original issue
discount] [accrued interest] from , 19 . On , 19
the exercise price of each Warrant will be $ . During the
period from , 19 through and including , 19 ,
the exercise price of each Warrant will be $ plus [accrued
amortization of the original issue discount] [accrued interest] from
, 19 . [In each case, the original issue discount
will be amortized at a % annual rate, computed on an annual basis 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 $1,000 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] [
, 19 ] and at or before 5:00 p.m. New York time on
, 19 (the "Expiration Date"). Each Warrant not exercised at or before 5:00
p.m. New York 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.
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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 set forth on the reverse side of the Warrant
Certificate and by paying in full, [in lawful money of the United States of
America,] [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 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. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate 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 and shall advise the Company by telephone at the end
of each day on 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 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
the Trustee shall reasonably require.
(c) As soon 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./*/ 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.
(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 is 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.
---------------
/*/ Subject to change in accordance with changes in tax laws and regulations.
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ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 3.01. NO RIGHTS AS WARRANT SECURITY HOLDER 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, or premium, if any, or interest, if any, on Warrant
Securities or to enforce any of the covenants in the Indenture.
Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to it 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 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) 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.
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
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Warrants which are not immediately detachable--Prior to the Detachable Date a
Warrant Certificate may be exchanged 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 the 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; 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 valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange or registration of transfer.
Section 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. If
Warrants which are not immediately detachable--Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company, the
Warrant Agent and with every subsequent holder of such Warrant Certificate that
until the transfer of the Warrant Certificate is registered on the books of the
Warrant Agent [or the register of the Offered Securities prior to the Detachable
Date], the Company and the Warrant Agent [or the registrar of the Offered
Securities prior to the Detachable Date], may treat the registered holder as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
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,
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no Warrant Certificates 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 the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
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 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, as 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 obligation or
a 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 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 and 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
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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 it or they would have 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 if 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 the Indenture.
(f) No Liability for Interest. 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.
(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 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 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 provided in Section 6.02 hereof to make any demand
upon the Company.
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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 Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 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 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 file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified 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 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.
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(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 defective 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 adversely affect the interests of the holders of the
Warrant Certificates.
Section 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. ADDRESSES. Any communication from the Company to the
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 Xxxxxx Xxxxxx Companies Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Treasurer (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 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.
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
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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 Certificates, the
exercise of the Warrants, the issuance, sale, transfer, and delivery of the
Warrant Securities issued upon exercise 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, Xxxxxx Xxxxxx Companies Inc. has caused this
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, all as of the day and year first above written.
XXXXXX XXXXXX COMPANIES INC.
By_________________________________
Attest:
______________________________
By_________________________________
As Warrant Agent
Attest:
______________________________
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Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend if Securities with Warrants which are not immediately
detachable: Prior to this Warrant Certificate
cannot be transferred or exchanged unless attached to a [Title of Offered
Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
XXXXXX XXXXXX COMPANIES INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M. NEW YORK TIME ON , 19
No.
Warrants
This certifies that or
registered assigns is the registered owner of the above indicated number of
Warrants, each Warrant entitling such owner to purchase, at any time [after 5:00
p.m. New York time on , 19 and] on or
before 5:00 p.m. New York time on , 19 , $
principal amount of [Title of Warrant Securities] (the "Warrant Securities"), of
Xxxxxx Xxxxxx Companies Inc. (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: [on , 19
the exercise price of each Warrant is $ ; during the period
from , 19 , through and including , 19 ,
the exercise price of each Warrant will be $
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 : on , 19
the exercise price of each Warrant will be $ ; during the
period from , 19 , through and including
, 19 , the exercise price of each Warrant will be $ plus [accrued
amortization of the original issue discount] [accrued interest] from
, 19 ; [in each case, the original issue discount will be amortized at a %
annual rate, computed on an annual basis, using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each $1,000 principal amount of Warrant Securities is $ .] The
holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, [in lawful money
of the United States of America,] [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 ]
currently at the
A-1
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
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 , 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 of the Warrant Agreement are on file 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 dated as of August 1, 1990 (the "Indenture"),
between the Company and Chemical Bank, as Trustee (Chemical Bank, and any
successor to such Trustee being hereinafter referred to as 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 office of the Trustee [and at ].
[If Offered Securities with registered Warrants which are not
immediately detachable--Prior to , 19 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 Securities. After such date, this
[If Offered Securities with registered 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.]
[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--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 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 and 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 , 19 .
XXXXXX XXXXXX COMPANIES INC.
By____________________________
Attest:
________________________________
Countersigned:
________________________________
As Warrant Agent
By______________________________
Authorized Signature
A-3
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certified check or official bank check or by bank wire transfer] [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 and present this Warrant
Certificate in person or by mail (registered mail is recommended) to the Warrant
Agent at the addresses 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 Xxxxxx Xxxxxx Companies Inc. and represents that he has tendered payment for
such Warrant Securities [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 Xxxxxx Xxxxxx Companies Inc., 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 fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
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.
A-4
Dated: Name_________________________________
(Please Print)
________________________________ Address______________________________
(Insert Social Security or Other
Identifying Number of Holder)
_____________________________________
Signature____________________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
By mail at_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants--complete as
appropriate.]
A-5
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 and address including zip code)
________________________________________________
(Please insert social security or other
identifying number)
________________________________________________________________________________
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, the American, Midwest or
Pacific Stock Exchange.)
Signature Guaranteed:
____________________________
A-6
XXXXXX XXXXXX COMPANIES INC.
FORM OF WARRANT AGREEMENT
[FOR WARRANTS SOLD ALONE]/*/
THIS WARRANT AGREEMENT dated as of between
Xxxxxx Xxxxxx Companies Inc., a Virginia 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 dated as of August 1,
1990 (the "Indenture"), with Chemical Bank, as Trustee (the "Trustee") providing
for the issuance from time to time of its debt securities (the "Securities"), to
be issued in one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell warrant certificates evidencing
one or more warrants (the "Warrants" or, individually, a "Warrant") representing
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 this 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 WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
Section 1.01. ISSUANCE OF WARRANTS. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the
---------------
/*/ Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants and offered Debentures. Monetary amounts may be in
U.S. dollars or in foreign denominated currency or European Currency Units
(ECU).
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provisions contained herein and therein, to purchase a Warrant Security in the
principal amount of $ .
Section 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in registered 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 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 its Chairman of the Board, a Vice Chairman of the Board, its
President, a Vice President, its Treasurer, a Deputy Treasurer or an Assistant
Treasurer under its corporate seal and attested by its Secretary or an Assistant
Secretary. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
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 such 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 "holder" or "holder of a Warrant Certificate" as used herein
shall mean 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.
Section 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate amount not exceeding $
aggregate principal amount of Warrant Securities (except as provided in Section
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 $
aggregate principal
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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).
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. WARRANT PRICE. On , 19
the exercise price of each Warrant is $ . During the period
from , 19 , through and including , 19 , the exercise
price of each Warrant will be $ plus [accrued amortization
of the original issue discount] [accrued interest] from , 19
. On , 19 the exercise price of each Warrant
will be $ . During the period from , 19
, through and including , 19 , the exercise price of each
Warrant will be $ plus [accrued amortization of the
original issue discount] [accrued interest] from ,
19 . [In each case, the original issue discount will be amortized at a %
annual rate, computed on an annual basis 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
$1,000 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]
[ , 19 ] and at or before 5:00 p.m. New York time on , 19
(the "Expiration Date"). Each Warrant not exercised at or before 5:00 p.m. New
York 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 set forth on the
reverse side of the Warrant Certificate and by paying in full, [in lawful money
of the United States of America] [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 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. The date
on which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate 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 and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of
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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 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
the Trustee shall reasonably require.
(c) As soon 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. 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.
(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 is involved, the Company shall not be required to issue or deliver any
Warrant Debentures 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 SECURITY HOLDER 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, or premium, if any, or interest, if any, on Warrant
Securities or to enforce any of the covenants in the Indenture.
Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to it 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
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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 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) 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.
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
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
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and a fraction of a Warrant. All Warrant Certificates issued upon any exchange
or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such exchange or registration of transfer.
Section 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. The
Company and the Warrant Agent may treat the registered holder as the absolute
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
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 the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
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 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, as well as the costs and expenses of defending against any claim
of such liability.
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(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 holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the 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 and 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 it or they would have 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 if 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 the Indenture.
(f) No Liability for Interest. 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.
(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 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
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delivered by it to the Company pursuant to this Agreement 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 provided 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 Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective, provided that such date
shall not be less than 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 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 file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified 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 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
defective 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 adversely affect the interests of the holders of the Warrant
Certificates.
Section 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by a 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 the
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 Xxxxxx Xxxxxx Companies Inc., 000 Xxxx Xxx., Xxx Xxxx, Xxx Xxxx
00000, Attention: Treasurer (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.
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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 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.
Section 6.06. OBTAINING OF GOVERNMENT 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 Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise 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.
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IN WITNESS WHEREOF, Xxxxxx Xxxxxx Companies Inc. has caused this
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, all as of the day and year first above written.
XXXXXX XXXXXX COMPANIES INC.
By_________________________________
Attest:
______________________________
By_________________________________
As Warrant Agent
Attest:
______________________________
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Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
XXXXXX XXXXXX COMPANIES INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M. NEW YORK TIME ON , 19
No.
Warrants
This certifies that or
registered assigns is the registered owner of the above indicated number of
Warrants, each Warrant entitling such owner to purchase, at any time [after 5:00
p.m. New York time on , 19 and] on or before 5:00 p.m.
New York time on , 19 , $ principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of Xxxxxx
Xxxxxx Companies Inc. (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: [on
, 19 the exercise price of each Warrant is $ ; during the
period from , 19 , through and including
, 19 , the exercise price of each Warrant will be $
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 ; on , 19 , the
exercise price of each Warrant will be $ ; during the period
from , 19 , through and including ,
19 , the exercise price of each Warrant will be $ plus
[accrued amortization of the original issue discount] [accrued interest] from
, 19 ; [in each case, the original issue discount will be amortized at a %
annual rate, computed on an annual basis, using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each $1,000 principal amount of Warrant Securities is $
.] The holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, [in lawful money
of the United States of America,] [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 ] currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
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
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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 , 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 of the Warrant Agreement are on file 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 dated as of August 1, 1990 (the "Indenture"),
between the Company and Chemical Bank, as Trustee (Chemical Bank and any
successor to such Trustee being hereinafter referred to as 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 office of the Trustee [and at ].
This Warrant Certificate 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.
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 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
limitations, the right to receive payments of principal of, and premium, if any,
or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.
A-2
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
XXXXXX XXXXXX COMPANIES INC.
By__________________________
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 cash
or by certified check or official bank check or by bank wire transfer] [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 and present this Warrant Certificate in
person or mail (registered mail is recommended) to the Warrant Agent at the
addresses 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 Xxxxxx Xxxxxx Companies Inc. and represents that he has tendered payment for
such Warrant Securities [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 Xxxxxx Xxxxxx Companies Inc., 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 fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
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 instruction below.
A-4
Dated: Name______________________________
(Please Print)
Address___________________________
________________________________
(Insert Social Security or Other
Identifying Number of Holder) __________________________________
Signature_________________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at__________________________________________
__________________________________________
__________________________________________
__________________________________________
By mail at__________________________________________
__________________________________________
__________________________________________
__________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants--complete as
appropriate.]
A-5
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 and address including zip code)
________________________________________________
(Please insert social security or other
identifying number)
________________________________________________________________________________
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, the American, Midwest or
Pacific Stock Exchange.)
Signature Guaranteed:
____________________________
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