Exhibit 4.8(a)
[Form of Warrant Agreement for Warrants Sold Alone]
OHIO CASUALTY CORPORATION
and
[ ],
as Warrant Agent
________________________________
WARRANT AGREEMENT
Dated as of [ ]
________________________________
Warrants to Purchase [ ]
________________________________
TABLE OF CONTENTS
PAGE
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ARTICLE 1 ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF
WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants...........................................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates.................................2
SECTION 1.03. Issuance of Warrant Certificates...............................................3
ARTICLE 2 WARRANT PRICE, DURATION AND EXERCISE
SECTION 2.01. Warrant Price..................................................................4
SECTION 2.02. Duration of Warrants...........................................................4
SECTION 2.03. Exercise of Warrants...........................................................4
ARTICLE 3 OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants
or Warrant Certificates........................................................6
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates......................6
SECTION 3.03. Enforcement of Rights..........................................................6
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer..................................7
ARTICLE 4 EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer..........................................................7
SECTION 4.02. Treatment of Holders of Warrant Certificates...................................8
SECTION 4.03. Cancellation of Warrant Certificates...........................................8
ARTICLE 5 CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..................................................................9
SECTION 5.02. Conditions of Warrant Agent's Obligations......................................9
SECTION 5.03. Resignation and Appointment of Successor......................................11
ARTICLE 6 MISCELLANEOUS
SECTION 6.01. Amendment.....................................................................12
SECTION 6.02. Notices and Demands to the Company and Warrant Agent..........................13
SECTION 6.03. Addresses.....................................................................13
SECTION 6.04. Applicable Law................................................................13
SECTION 6.05. Delivery of Prospectus........................................................13
SECTION 6.06. Obtaining of Governmental Approval............................................13
SECTION 6.07. Persons Having Rights Under Warrant Agreement.................................13
SECTION 6.08. Headings......................................................................14
SECTION 6.09. Counterparts..................................................................14
SECTION 6.10. Inspection of Agreement.......................................................14
SECTION 6.11. Notices to Holders of Warrants................................................14
EXHIBIT A - Form of Warrant Certificate................................................................A-1
WARRANT AGREEMENT (1)
THIS AGREEMENT dated as of [ ] between OHIO CASUALTY CORPORATION, a
corporation duly organized and existing under the laws of the State of Ohio
(the "Company"), and [ ], a [bank] [trust company] duly incorporated and
existing under the laws of [ ], as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
[WHEREAS, the Company has entered into an Indenture dated as of
[Date] (the "Senior Indenture") between the Company and [ ], as Trustee (the
"Senior Indenture Trustee"), and an Indenture dated as of [Date] (the
"Subordinated Indenture") between the Company and [ ], as Trustee (the
"Subordinated Indenture Trustee") (together the "Trustees" or "Trustee" and
"Indentures" or "Indenture"), providing for the issuance from time to time of
its unsecured debt securities to be issued in one or more series as provided
in the Indenture; and]
WHEREAS, the Company proposes to sell [title of such securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such securities purchasable
through exercise of Warrants] (the "Warrant Securities"), the Warrants to be
evidenced by warrant certificates issued pursuant to this Agreement (the
"Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, transfer, 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, transferred,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
_____________________
(1) Complete or modify the provisions of this form as appropriate to reflect
the terms of the Warrants and Warrant Securities. Monetary amounts may
be in U.S. dollars, in a foreign currency or in a composite currency,
including but not limited to the euro.
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants.
The Warrants shall be evidenced by one or more Warrant Certificates.
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase [_____ shares of the
Warrant Securities] [_____aggregate principal amount of Warrant Securities].
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant, whenever issued, shall be evidenced by a Warrant
Certificate 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 or vice
chairman of the Board of Directors, the chief financial officer, the
president, any managing director, or the treasurer of the Company, in each
case under its corporate seal, which may but need not be attested by its
Secretary or one of its Assistant Secretaries. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The corporate 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 Warrant Agent by manual signature. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall
be conclusive evidence, and the only evidence, that the Warrant Certificate so
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," when used with respect to any Warrant Certificate
shall mean any person in whose name at the time such Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose.
SECTION 1.03. Issuance of Warrant Certificates.
Warrant Certificates evidencing the right to purchase [_____ shares
of the Warrant Securities] [an aggregate principal amount not exceeding _____
aggregate principal amount of Warrant Securities] (except as provided in
Sections 2.03, 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 [_____shares
of the Warrant Securities] [_____ 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 the antepenultimate
paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such Warrants (printed,
lithographed, typewritten or otherwise produced, in each case in form
satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall
be issuable substantially in the form of the definitive Warrant Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge pursuant to and subject to the provisions of Section 4.01, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates definitive Warrant Certificates of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE
SECTION 2.01. Warrant Price.
On [ ] the exercise price of each Warrant will be [ ]. 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 and using a 360-day year consisting of twelve 30-day
months]. Such exercise 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.
Subject to Section 4.03(b), each Warrant may be exercised [in whole
but not in part] [in whole or in part] [at any time, as specified herein, on
or after [the date thereof] [______] and at or before [time, location] on [ ]
(each day during such period may hereinafter be referred to as an "Exercise
Date")] [on [list of specific dates] (each, an "Exercise Date")], or such
later date as the Company may designate by notice to the Warrant Agent and the
Holders of Warrant Certificates [in registered form and to the beneficial
owners of the Global Warrant Certificate] (the "Expiration Date"). Each
Warrant not exercised at or before [time, location] on the Expiration Date
shall become void, and all rights of the Holder [and any beneficial owners] of
the Warrant Certificate evidencing such Warrant under this Agreement shall
cease.
SECTION 2.03. Exercise of Warrants.
[With respect to Warrants evidenced by Warrant Certificates in
registered form, during] [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 Certificates evidencing such
Warrants and by paying in full [in lawful money of the United States of
America] [in applicable currency] [in cash] [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
[(plus accrued interest, if any, on the Warrant Securities to be issued upon
exercise of such Warrant from and including the Interest Payment Date (as
defined in the Indenture), if any, in respect of such Warrant Securities
immediately preceding the Exercise Date to and including the Exercise Date
(unless the Exercise Date is after the Regular Record Date (as defined in the
Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable))] to the Warrant Agent
at its corporate trust office at [address] [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 evidencing
each Warrant exercised with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed. [Cashless Exercise Option].
The date on which payment in full of the Warrant Price (plus any such
accrued interest) 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 for the exercise of Warrants in an account of the Company
maintained with it (or in such other account as may be designated by the
Company) and shall advise the Company, by telephone or by facsimile
transmission or other form of electronic communication available to both
parties, at the end of each day on which a payment for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Trustee] in writing 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 be issued upon such exercise, (iii) delivery of any 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.
As soon as practicable after the exercise of any Warrant, but subject
to receipt by the Warrant Agent of the Warrant Certificate evidencing such
Warrant as provided in this Section, the Company shall issue[, pursuant to the
Indenture, in authorized denominations to or upon the order of the Holder of
the Warrant Certificate evidencing each 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.
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the 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.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
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 or any beneficial owner thereof to any of the rights of a holder or
beneficial owner of Warrant Securities, including, without limitation, [the
right to receive the payment of principal of (premium, if any) or interest, if
any, on Warrant Securities or to enforce any of the covenants in the
Indenture] [the right to receive dividend payments on the Warrant Securities
or any voting rights].
SECTION 3.02. Lost, Mutilated, Stolen 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, mutilation, theft or
destruction of any Warrant Certificate and of such security or indemnity as
may be required by the Company and the Warrant Agent to hold each of them and
any agent of them harmless and, in the case of mutilation of a Warrant
Certificate, 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, mutilated,
stolen or destroyed 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 stamp or other 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, mutilated, 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 lost, mutilated, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Enforcement of Rights.
Notwithstanding any of the provisions of this Agreement, any Holder
of a Warrant Certificate, without the consent of the Warrant Agent, the
relevant Trustee, the holder of any Offered Securities or the Holder of any
other Warrant Certificate, may, in its own behalf and for its own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, its right to
exercise its Warrants in the manner provided in its Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer.
(a) If at any time there shall be a merger or consolidation of the
Company or a conveyance or transfer of its property and assets substantially
as an entirety [as permitted under the Indenture], 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 the Indenture,]
as if it had been named herein and in the Warrant Certificates as the Company;
the Company shall thereupon, except in the case of a transfer by way of lease,
be relieved of any further obligation hereunder and under the Warrants and the
Warrant Certificates, and the Company as the predecessor corporation, except
in the case of a transfer by way of lease, may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation may thereupon cause to be signed, and may issue either in its own
name or in the name of the Company, Warrant Certificates evidencing 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 the 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 merger,
consolidation, conveyance or transfer, such changes in phraseology and form
(but not in substance) may be made in the Warrant Certificates representing
the Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the
provisions of this Section and the Indentures.
[Add Anti-Dilution provisions as necessary.]
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer.
(a) Upon surrender at the corporate trust office of the Warrant Agent
at [address] [or ], Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other authorized denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part;
provided, however, that such other Warrant Certificates shall evidence the
same aggregate number of Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [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 such Warrant
Certificates to the Warrant Agent at its corporate trust office at [address]
[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.]
(c) 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.
(d) 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 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.
(e) 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 or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates.
Each Holder of a Warrant Certificate, by accepting the same, consents
and agrees with the Company, the Warrant Agent and every subsequent Holder of
such Warrant Certificate that until the transfer of such Warrant Certificate
is registered on the books of such Warrant Agent, the Company and the Warrant
Agent may treat the registered Holder of such Warrant Certificate 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.
[(a)] Any Warrant Certificate surrendered for exchange or
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 therefor or in lieu thereof. The Warrant Agent
shall cause all cancelled Warrant Certificates to be destroyed and shall
deliver a certificate of such destruction to the Company.
[(b) If the Company notifies the relevant Trustee of its election to
redeem [, as a whole but not in part,] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice
to the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates, such notice to be so given not less than 30 nor more than 60
days prior to the date fixed for the redemption of the Warrant Securities
pursuant to the Indenture or the terms thereof. The unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby shall be cancelled and
become void on the 15th day prior to such date fixed for redemption.]
ARTICLE 5
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 and in the Warrant Certificates 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 herein 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 reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part 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
reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and 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 in its reasonable judgment, 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 not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due authorization
to execute this Agreement and the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of any Warrant
Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(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 countersigned 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, 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 Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf
of the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Warrant
Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to
the payment by the Company of the compensation and to the reimbursement of all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor 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 6
MISCELLANEOUS
SECTION 6.01. Amendment.
This Agreement and the terms of the Warrants and the Warrant
Certificates may be amended by the parties hereto, without the consent of the
Holder of any Warrant Certificate or the beneficial owner of any Warrant, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or in the Warrant
Certificates, 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
adversely the interests of the Holders of the Warrant Certificates or the
beneficial owners of Warrants in any material respect.
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 Ohio Casualty Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, Attention: [ ] (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 hereof and 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.
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 Approval.
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.
SECTION 6.11. Notices to Holders of Warrants.
Any notice to Holders of Warrants evidenced by Warrant Certificates
which by any provisions of this Warrant Agreement is required or permitted to
be given shall be given by first class mail prepaid at such Holder's address
as it appears on the books of the Warrant Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
OHIO CASUALTY CORPORATION
By:__________________________
Name:
Title:
[WARRANT AGENT]
By:__________________________
Name:
Title:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, ____
OHIO CASUALTY CORPORATION
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Securities]
as described herein
__________________________________
No.
Warrants
This certifies that [_____________________] or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate principal amount of [Title of Warrant Securities]](the
"Warrant Securities") of Ohio Casualty Corporation (the "Company")[, issued or
to be issued under the Indenture (as hereinafter defined),] on the following
basis.(2) [During the period from ________, ____ through and including
___________, ____, each Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the [principal]
amount of Warrant Securities stated above in this Warrant Certificate at the
exercise price of [ ] [___% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant
Securities][plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Securities or, if no
interest shall have been paid on the Warrant Securities, from ___________,
____]; [in each case, the original issue discount ($_______ for each $1,000
principal amount of Warrant Securities) will be amortized at a ___% annual
_____________________
(2) Complete and modify the following provisions as appropriate to
reflect the terms of the Warrants and the Warrant Securities.
rate, computed on a[n] [semi-]annual basis[, using a 360-day year constituting
of twelve 30-day months]] (the "Exercise Price"). The Holder of this Warrant
Certificate may exercise the Warrants evidenced hereby, in whole or in part,
by surrendering this Warrant Certificate, with the purchase form set forth
hereon duly completed, accompanied [by payment in full, in lawful money of the
United States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds]], the Exercise Price for each Warrant exercised, to the
Warrant Agent (as hereinafter defined), at the corporate trust office of [name
of Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or
at ____________,] at the addresses specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of [ shares of] Warrant Securities [in the
principal amount of ] or any integral multiple thereof. [Cashless Exercise
Option].
The term "Holder" as used herein shall mean the person in whose name
at the time such Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 3.01 of
the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the registered owner hereof a new
Warrant Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, ____ (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 Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of ________________ (the "Indenture"),
between the Company and ________________, a [corporation] [national banking
association] organized under the laws of the State of __________, as trustee
(such trustee, and any successors to such trustee, the "Trustee") and will be
subject to the terms and provisions contained in the Warrant Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
Securities, are on file at the corporate trust office of the Trustee [and at
].]
This Warrant Certificate, and all rights hereunder, may be
transferred when surrendered at the corporate trust office of the Warrant
Agent [or _________] by the registered owner or his assigns, in person or by
an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
After authentication by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or at _____________] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner
hereof to any of the rights of a registered 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] [the right to receive dividend
payments on the Warrant Securities or any voting rights].
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated:_____________
OHIO CASUALTY CORPORATION
By:__________________________
Attest:
______________________________
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
___________________________________
As Warrant Agent
By:_________________________________
Authorized Signature
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _________, Corporate Trust Department, _______________, Attn:
___________ [or ________________], which payment should specify the name of
the Holder of this Warrant Certificate and the number of Warrants exercised by
such Holder. In addition, the Holder of this Warrant Certificate should
complete the information required below and present in person or mail by
registered mail this Warrant Certificate to the Warrant Agent at the addresses
set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________
Warrants, represented by this Warrant Certificate, to purchase [_______ shares
of [Title of Equity Securities]] [$_________ aggregate principal amount of the
[Title of Debt Securities]] (the "Warrant Securities") of Ohio Casualty
Corporation and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds]
to the order of Ohio Casualty Corporation, c/o [ ] 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 said [principal] amount of Warrant Securities is less than all of
the Warrant Securities purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated:_____________
Name_____________________________
(Please Print)
_________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Address_________________________ _
__________________________________
Signature__________________________
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
This Warrant may be exercised at the following addresses:
By hand at _____________________________
_____________________________
_____________________________
_____________________________
By mail at _____________________________
_____________________________
_____________________________
_____________________________
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and
transfers unto Please insert social security or other identifying number
___________________________________
___________________________________
(Please print name and address
including zip code)
________________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated: _____________
__________________________________
Signature
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
_____________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Warrant Agent)
