SUPPLEMENTAL WARRANT AGREEMENT

 

SUPPLEMENTAL

WARRANT AGREEMENT

 

This Supplemental Warrant Agreement, dated as of February 9, 2009 (this “ Agreement ”), is between Foster Wheeler AG, a Swiss Company (the “ Company ”) (the new holding company of Foster Wheeler Ltd., a Bermuda company (“ FWL ”)), FWL and Mellon Investor Services LLC, a New Jersey limited liability company (the “ Warrant Agent ”).

 

FWL entered into a Warrant Agreement dated as of September 24, 2004 (the “ Original Agreement ”) with the Warrant Agent at the time it issued to the holders of its outstanding 9.00% Preferred Securities, Series I (liquidation amount $25 per trust security) issued by FW Preferred Capital Trust I (“ Trust Preferred Securities ”) that tendered in the exchange offer described in FWL’s registration statement on Form S-4 (File No. 107054) last declared effective by the Securities and Exchange Commission on August 16, 2004 (the “ Form S-4 ”), warrants (the “ Class A Warrants ” or the “ Warrants ”) to purchase FWL’s common shares par value $0.01 per share (the “ FWL Common Shares ”).  On February 9, 2009, FWL became a wholly-owned subsidiary of the Company by Scheme of Arrangement under Bermuda Law.  As a consequence, as required under Section 6(d) of the Original Agreement, the Company is hereby entering into this Agreement in order to assume the obligation to deliver upon exercise of the Warrants outstanding as of 2:00 a.m., Eastern time, on February 9, 2009 that number of the Company’s shares of common registered stock, par value 3.00 Swiss Francs per share (the “ Common Shares ”) described in the Warrant Certificates issued under this Agreement.  Each Class A Warrant is exercisable to purchase Common Shares, in the circumstances, upon the terms and conditions and subject to adjustment in certain circumstances, all as set forth in this Agreement.

 

The Company wishes to retain the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, transfer, exchange and replacement of the certificates evidencing the Warrants to be issued under this Agreement (the “ Warrant Certificates ”) and the exercise of the Warrants.  In connection with the execution of this Agreement, the warrant certificate(s) issued under the Original Agreement are being cancelled and new Warrant Certificate(s) are being issued in accordance with this Agreement.

 

The Company and the Warrant Agent wish to enter into this Agreement to set forth the terms and conditions of the Warrants and the rights of the registered holders thereof (“ Warrantholders ”) and to set forth the respective rights and obligations of the Company and the Warrant Agent.  Each Warrantholder is an intended beneficiary of this Agreement with respect to the rights of Warrantholders herein.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows:

 

1.                                        Appointment of Warrant Agent and Transition .

 

(a)                                   The Company appoints the Warrant Agent to act as agent for the Company in accordance with the instructions in this Agreement and the Warrant Agent accepts such appointment.

 

 

(b)                                  Nothing in this Agreement shall be deemed to extinguish any of the rights, duties or immunities of the Warrant Agent under the Original Agreement.  The Company hereby certifies that this Agreement is being entered into under Section 6(d) of the Original Agreement, and that the Warrant Agent shall be entitled to, and fully protected in, taking any action that may be relevant under the Original Agreement.

 

2.                                        Date, Denomination and Execution of Warrant Certificates.

 

(a)                                   The warrant certificates (and the Form of Election to Purchase and the Form of Assignment to be printed on the reverse thereof) shall be in registered form only and shall be substantially of the tenor and purport recited in Exhibit A hereto (the “ Class A Warrant Certificate ” or the “ Warrant Certificates ”) and may have such letters, numbers or other marks of identification or designation and such legends, summaries or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate 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 Common Shares or the Warrants may be listed or any automated quotation system, or to conform to usage.  Each Class A Warrant shall entitle the registered holder thereof, subject to the conditions and other provisions of this Agreement and of the Class A Warrant Certificate, to purchase that number of fully paid and non-assessable Common Shares described in such holder’s Warrant Certificate on or after the date hereof and on or before the close of business on September 24, 2009, subject to extension, in certain circumstances, as provided in Section 9(d) hereof (the “ Expiration Date ”) for each Class A Warrant evidenced by such Class A Warrant Certificate for $4.689 per Common Share to be received (the “ Exercise Price ”).  The Exercise Price is subject to adjustment as provided in Section 6 hereof, provided that the Exercise Price shall in no case be less than the par value of the underlying Common Shares.  The Company will not take any action to increase such par value above the Exercise Price.  Each Warrant Certificate shall be dated the date on which the Warrant Agent receives written issuance instructions from the Company (under the hand of an Authorized Officer) or a transferring holder of a Warrant Certificate or, if such instructions specify another date, such other date.

 

(b)                                  For purposes of this Agreement, the term “close of business” on any given date shall mean 5:00 p.m., Eastern time, on such date; provided, however, that if such date is not a business day, it shall mean 5:00 p.m., Eastern time, on the next succeeding business day.  For purposes of this Agreement, the term “business day” shall mean any day other than a Saturday, Sunday, a federal holiday, any day that shall be in the City of New York or Zurich, Switzerland a legal holiday or a day on which banking institutions in New York, New York, Jersey City, New Jersey, Zurich, Switzerland or in the State or jurisdiction, as the case may be, in which the Warrant Agent maintains the principal office in which it conducts business related to the Warrants are authorized or obligated by law to be closed.

 

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(c)                                   Each Warrant Certificate shall be executed on behalf of the Company by the chairman of the Board of Directors of the Company (the “ Board ”), the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, (each an “ Authorized Officer ”) either manually or by facsimile signature printed thereon.  Each Warrant Certificate shall be countersigned by the Warrant Agent upon receipt by the Warrant Agent of written instructions from the Company to such effect (which the Company covenants to give) and shall not be valid for any purpose unless so countersigned.  In case any Authorized Officer of the Company who shall have signed any Warrant Certificate shall cease to be an Authorized Officer of the Company before countersignature by the Warrant Agent and issue and delivery thereof by the Company, such Warrant Certificate, nevertheless, may be countersigned by the Warrant Agent, issued and delivered with the same force and effect as though the person who signed such Warrant Certificate had not ceased to be such Authorized Officer of the Company.

 

3.                                        Subsequent Issue of Warrant Certificates .  All outstanding warrant certificates under the Original Agreement shall be cancelled by the Warrant Agent on or before the date hereof at the direction of the Company and no new warrant certificates shall be issued under the Original Agreement after the execution of this Agreement.  Subsequent to their original issuance, no Warrant Certificates shall be reissued except (if applicable, upon written notice thereof from the Company (under the hand of an Authorized Officer) to the Warrant Agent) (i) Warrant Certificates issued upon transfer thereof in accordance with Section 4 hereof, (ii) Warrant Certificates issued upon any combination, split-up or exchange of Warrant Certificates pursuant to Section 4 hereof, (iii) Warrant Certificates issued in replacement of mutilated, destroyed, lost or stolen Warrant Certificates pursuant to Section 5 hereof, (iv) Warrant Certificates issued upon the partial exercise of Warrant Certificates pursuant to Section 7 hereof, and (v) Warrant Certificates issued to reflect any adjustment or change in the Exercise Price or the number or kind of shares purchasable thereunder pursuant to Section 22 hereof.  Warrant Certificate(s) shall be issued on the date hereof to replace warrant certificate(s) issued under the Original Agreement in connection with the Company’s assumption of obligations under this Agreement.  The Warrant Agent is hereby irrevocably authorized to countersign and deliver, in accordance with the provisions of said Sections 4, 5, 7 and 22, the new Warrant Certificates required for purposes thereof, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with (i) Warrant Certificates duly executed on behalf of the Company (under the hand of an Authorized Officer) for such purposes and (ii) all other information pertaining thereto which the Warrant Agent shall reasonably request.

 

4.                                        Transfers and Exchanges of Warrant Certificates .

 

(a)                                   The Warrant Agent will keep or cause to be kept books for registration of ownership and transfer of the Warrant Certificates issued hereunder.  Such registers shall show the names and addresses of the respective Warrantholders and the kind and number of Warrants evidenced by each such Warrant Certificate.

 

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(b)                                  The Warrant Agent shall, from time to time, register the transfer of any outstanding Warrants upon the books to be maintained by the Warrant Agent for that purpose, upon surrender of the Warrant Certificate evidencing such Warrants, with the Form of Assignment duly filled in and executed with such signature guaranteed by an eligible institution and such supporting documentation as the Warrant Agent or the Company may reasonably require, to the Warrant Agent at its stock transfer office in Jersey City, New Jersey at any time on or before the Expiration Date of such Warrant, and upon payment to the Warrant Agent for the account of the Company of an amount equal to any applicable transfer tax.  Payment of the amount of such tax may be made in cash, or by certified or official bank check, payable in lawful money of the United States of America to the order of the Company.

 

(c)                                   Upon receipt of a Warrant Certificate, with the Form of Assignment duly filled in and executed by a Warrantholder, accompanied by payment of an amount equal to any applicable transfer tax, the Warrant Agent shall promptly cancel the surrendered Warrant Certificate and countersign and deliver to the transferee a new Warrant Certificate for the number of full Warrants transferred to such transferee; provided, however, that in case a Warrantholder shall elect to transfer fewer than all of the Warrants evidenced by such Warrant Certificate, the Warrant Agent in addition shall promptly countersign and deliver to such Warrantholder a new Warrant Certificate or Certificates for the number of full Warrants not so transferred.

 

(d)                                  Any Warrant Certificate or Certificates may be exchanged at the option of a Warrantholder for another Warrant Certificate or Certificates of different denominations, of like tenor and representing in the aggregate the same kind and number of Warrants, upon surrender of such Warrant Certificate or Certificates, with the Form of Assignment duly filled in and executed, to the Warrant Agent, at any time or from time to time after the close of business on the date hereof and prior to the close of business on the Expiration Date relating to such Warrant.  The Warrant Agent shall promptly cancel the surrendered Warrant Certificate and deliver the new Warrant Certificate pursuant to the provisions of this Section.

 

5.                                        Mutilated, Destroyed, Lost or Stolen Warrant Certificates .  Upon receipt by the Company and the Warrant Agent of evidence from a Warrantholder reasonably satisfactory to them of the loss, theft, destruction or mutilation of any Warrant Certificate, and in the case of loss, theft or destruction, of indemnity or security from a Warrantholder reasonably satisfactory to them, and reimbursement to them by such Warrantholder of all reasonable expenses incidental thereto, and, in the case of mutilation, upon surrender by the relevant Warrantholder and cancellation of the Warrant Certificate, the Warrant Agent shall countersign and deliver a new Warrant Certificate of like tenor for the same kind and number of Warrants.  In the case of an institutional Warrantholder, the written assurance of such Warrantholder of such loss, theft or destruction shall be considered a satisfactory indemnity for the purposes of this Section 5.

 

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6.                                        Adjustments of Number and Kind of Shares Purchasable and Exercise Price .  Upon written notice thereof from the Company (under the hand of an Authorized Officer) to the Warrant Agent (which the Company covenants to give promptly following any of the events described in this Section), the number and kind of securities or other property purchasable upon exercise of a Warrant shall be subject to adjustment from time to time upon the occurrence, after the date hereof, of any of the following events:

 

(a)                                   In case the Company shall (1) declare and pay a dividend in, or make a distribution of, shares of its capital on its outstanding Common Shares, (2) subdivide its outstanding Common Shares into a greater number of such shares or (3) consolidate its outstanding Common Shares into a smaller number of such shares, the total number of Common Shares purchasable upon the exercise of each Warrant outstanding immediately prior thereto shall be adjusted so that the Warrantholder, on exercise of a Warrant, shall be entitled to receive at the same aggregate Exercise Price the number of shares of the applicable classes which such Warrantholder would have owned or have been entitled to receive immediately following the happening of any of the events described above had such Warrant been exercised in full immediately prior to the record date with respect to such event (on the effective date of such event, if there is no such record date).  Any adjustment made pursuant to this Subsection shall, in the case of a share dividend or distribution, declared and paid in shares of the Company become effective as of the record date therefore and, in the case of a subdivision or consolidation, be made as of the effective date thereof.  If, as a result of an adjustment made pursuant to this Subsection, the Warrantholder of any Warrant Certificate thereafter surrendered for exercise shall become entitled to receive shares of two or more classes of share capital of the Company, the Board (whose determination shall be conclusive and shall be evidenced by a Board resolution filed with the Warrant Agent) shall determine the allocation of the adjusted Exercise Price between or among shares of such classes.

 

(b)                                  In the event of a capital reorganization or a reclassification of the Common Shares (except as provided in Subsection (a) above or Subsection (d) below), any Warrantholder, upon exercise of Warrants, shall be entitled to receive, in substitution for the Common Shares to which he would have become entitled upon exercise immediately prior to such reorganization or reclassification, the shares (of any class or classes) or other securities or property of the Company (or cash) that he would have been entitled to receive at the same aggregate Exercise Price upon such reorganization or reclassification if such Warrants had been exercised immediately prior to the record date with respect to such event (on the effective date of such event, if there is no such record date); and in any such case, appropriate provision (as reasonably determined by the Board, whose determination shall be evidenced by a certified Board resolution filed with the Warrant Agent) shall be made for the application of this Section 6 with respect to the rights and interests thereafter of the Warrantholders (including but not limited to the allocation of the Exercise Price between or among shares of classes of capital), to the end that this Section 6 (including the adjustments of the number of Common Shares or other securities purchasable and the Exercise Price thereof)

 

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shall thereafter be reflected, as nearly as reasonably practicable, in all subsequent exercises of the Warrants for any shares or securities or other property (or cash) thereafter deliverable upon the exercise of the Warrants.

 

(c)                                   Whenever the number of Common Shares or other securities purchasable upon exercise of a Warrant is adjusted as provided in this Section 6, the Company will file promptly following such adjustment with the Warrant Agent a certificate signed by an Authorized Officer of the Company setting forth the number and kind of securities or other property purchasable upon exercise of a Warrant, as so adjusted, stating that such adjustments in the number or kind of shares or other securities or property conform to the requirements of this Section 6, and setting forth a brief statement of the facts accounting for such adjustments.  Promptly after receipt of such certificate, the Company, or the Warrant Agent at the Company’s instruction (which the Company covenants to give under the hand of an Authorized Officer), will deliver, by first-class, postage prepaid mail, a brief summary thereof (to be supplied by the Company) to the Warrantholders; provided, however, that failure to file or to give any notice required under this Subsection, or any defect therein, shall not affect the legality or validity of any such adjustments under this Section 6; and provided, further, that, where appropriate, such notice may be given in advance and included as part of the notice required to be given pursuant to Section 12 hereof.

 

(d)                                  In case of any consolidation of the Company with, or merger of the Company into, another company or corporation (other than a consolidation, amalgamation or merger which does not result in any reclassification or change of the outstanding Common Shares), or in case of any sale or conveyance to another company or corporation of the property of the Company as an entirety or substantially as an entirety, the company or corporation formed by such consolidation, amalgamation or merger or the company or corporation which shall have acquired such assets, as the case may be, shall execute and deliver to the Warrant Agent a supplemental warrant agreement providing that each Warrantholder then outstanding shall have the right thereafter (until the expiration of such Warrant) to receive, upon exercise of such Warrant, solely the kind and amount of share capital, shares and other securities and property (or cash) receivable upon such consolidation, amalgamation, merger, sale or transfer by a holder of the number of Common Shares of the Company for which such Warrant might have been exercised immediately prior to such consolidation, amalgamation, merger, sale or transfer, provided that (i) if the holders of Common Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation, amalgamation or merger, then the kind and amount of securities, cash or other assets for which each Warrant shall become exercisable shall be deemed to be the kind and amount so receivable per share by a plurality of the holders of Common Shares in such consolidation, amalgamation or merger, and (ii) if a tender or exchange offer shall have been made to and accepted by the holders of Common Shares under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within

 

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the meaning of Rule 13d-5(b)(1) under the Securities Exchange Act of 1934 (the “Exchange Act”) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the outstanding Common Shares, each Warrant shall become exercisable for the highest amount of cash, securities or other property to which such Warrantholder would actually have been entitled as a shareholder if such Warrantholder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Shares held by such Warrantholder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer).  Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section.  The above provision of this Subsection shall similarly apply to successive consolidations, amalgamation, mergers, sales or transfers.  The Warrant Agent shall not be under any responsibility to determine the correctness of any provision contained in any such supplemental warrant agreement relating to either the kind or amount of share capital, shares or securities or property (or cash) purchasable by Warrantholders upon the exercise of their Warrants after any such consolidation, merger, sale or transfer or of any adjustment to be made with respect thereto, but subject to the provisions of Section 20 hereof, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, a certificate of a firm of independent certified public accountants (who may be the accountants regularly employed by the Company) with respect thereto.

 

(e)                                   If the Company distributes to all holders of its Common Shares any of its assets (excluding ordinary cash dividends) or debt securities or any rights or warrants to purchase debt securities, assets or other securities of the Company, the Exercise Price of the Warrants shall be adjusted in accordance with the following formula:

 

E’  =  E    x     M   –   F

M

 

where:

 

E’ =          the adjusted exercise price.

 

E =           the current exercise price.

 

M =          the current market price per Common Share on the record date mentioned below.

 

F =           the fair market value on the record date of the assets, securities, rights, options or warrants applicable to one Common Share. Fair market value shall be reasonably determined by the Board, provided that the Company shall obtain an appraisal or other valuation opinion in support

 

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of the Board’s determination from an investment bank or accounting firm of recognized national standing if the aggregate fair market value exceeds $10 million.

 

The adjustment contemplated by this paragraph shall be made successively whenever any such distributions are made and shall become effective immediately after the record date for the determination of shareholders entitled to receive the distribution.  This paragraph does not apply to rights, options or warrants referred to in paragraph (f).

 

(f)                                     If the Company issues any Common Shares or securities convertible into or exchangeable for Common Shares or any rights, options or warrants to acquire Common Shares or securities convertible into or exchangeable for Common Shares (other than securities issued in transactions described in subsections (a), (b) or (e) of this Section 6) for a consideration per Common Share issued or initially deliverable upon conversion or exchange of such securities less than the current market price per share on the date of issuance of such securities, the Exercise Price of the Warrants shall be adjusted in accordance with this formula:

 

		P
	E’ = E  x	O     +     M
		O     +      D

 

where:

 

E’ =          the adjusted Exercise Price.

 

E =           the then current Exercise Price.

 

O =           the number of Common Shares outstanding immediately prior to the issuance of such securities.

 

P =           the aggregate consideration received for the issuance of such securities.

 

M =          the current market price per Common Share on the date of issuance of such securities.

 

D =           the number of Common Shares so issued or the maximum number of Common Shares deliverable upon exercise or conversion or in exchange for such securities at the initial conversion or exchange rate.

 

The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediate after such issuance.  If all of the Common Shares deliverable upon conversion or exchange of such securities have not been issued when such securities are no longer outstanding, or there is a change in the terms of such securities, then the Exercise Price shall promptly be readjusted to the Exercise Price which would then be in effect had the adjustment upon the issuance of such securities been made on the basis of the actual number of Common Shares issued upon conversion or exchange of such securities (in case

 

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the securities are no longer outstanding) or on the basis of such new terms.  This paragraph does not apply to: (1) the exercise of Warrants, or the exercise, conversion or exchange of other securities convertible into or exchangeable for Common Shares, or (2) Common Shares issued to the Company’s employees, officers, directors and consultants under bona fide employee benefit plans or stock options plans adopted by the Board and approved by the holders of Common Shares when required by law, if such Common Shares would otherwise be covered by this paragraph.

 

(g)                                  For purposes of this Section 6, the current market price per share of Common Shares on any date is the average of the Quoted Prices of the Common Shares for 30 consecutive trading days commencing 45 trading days before the date in question.  The “Quoted Price” of the Common Shares is the last reported sales price of the Common Shares as reported by Nasdaq, National Market System, or if the Common Shares are listed on a securities exchange, the last reported sales price of the Common Shares on such exchange which shall be for consolidated trading if applicable to such exchange, or if neither so reported or listed, the last reported bid price of the Common Shares; provided that with respect to the sale of Common Shares in an underwritten public offering, the current market price per share shall be equal to the offering price.  In the absence of one or more such quotations, the current market price shall be the fair market value, as reasonably determined by the Board.

 

(h)                                  For purposes of any computation respecting consideration received pursuant to paragraph (f) of this Section 6, the following shall apply:  (1) in the case of the issuance of Common Shares for cash, the consideration shall be the amount of such cash, provided that in no case shall any deduction be made for reasonable commissions, discounts or other expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; (2) in the case of the issuance of Common Shares for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof; and (3) in the case of the issuance of securities convertible into or exchangeable for shares, the aggregate consideration received therefor shall be deemed to be the consideration received by the Company for the issuance of such securities plus the additional minimum consideration, if any, to be received by the Company upon the conversion or exchange thereof (the consideration in each case to be determined in the same manner as provided in clauses (1) and (2) of this paragraph).

 

(i)                                      Whenever the Exercise Price is adjusted, the Company shall promptly provide to the Warrantholders notice of adjustment stating the facts requiring the adjustment and the manner of computing it.

 

(j)                                      Upon each event that provides for an adjustment of the Exercise Price pursuant to paragraph (e) or (f) of this Section 6, each Warrant outstanding prior to the making of the adjustment shall thereafter evidence the right to receive upon

 

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payment of the adjusted Exercise Price that number of Common Shares obtained from the following formula:

 

N’     =      N          x	E
	E’

 

where

 

N’ =                          the adjusted number of Common Shares issuable upon exercise of a Warrant by payment of the adjusted Exercise Price.

 

N =                              the number of Common Shares previously issuable upon exercise of a Warrant by payment of the Exercise Price prior to adjustment.

 

E’ =                            the adjusted Exercise Price.

 

E =                                the Exercise Price prior to adjustment.

 

(k)            In case any event shall occur affecting the Company, or any entity in which the Company has a direct or indirect investment, as to which the provisions of this Section 6 are not strictly applicable, but the failure to make any adjustment would not fairly protect the purchase rights represented by the Warrants in accordance with the essential intent and principles of this Section, then in each such case the Company shall make the adjustment on a basis reasonably determined by the Board to be consistent with the essential intent and principles established in this Section 6, necessary to preserve, without dilution, the purchase rights represented by the Warrants. In no case may such adjustment increase the Exercise Price or reduce the number of shares issuable on exercise of a Warrant.

 

(l)             Irrespective of any adjustments in the number or kind of shares issuable upon exercise of Warrants, Warrant Certificates theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrant Certificates initially issuable pursuant to this Agreement.

 

(m)           The Company may retain a firm of independent public accountants of recognized standing, which may be the firm regularly retained by the Company, selected by the Board or any executive committee of the Board, to make any computation required under this Section, and a certificate signed by such firm shall, if reasonable, be conclusive evidence of the correctness of any computation made under this Section.

 

(n)            For the purpose of this Section, the term “Common Shares” shall mean (i) the Common Shares or (ii) any other class of share capital or shares resulting from successive changes or reclassifications of such Common Shares consisting solely of changes in par value.  In the event that at any time as a result of an adjustment made pursuant to this Section, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any share capital or shares of the Company other than Common Shares, thereafter the number of such other shares

 

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so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained in this Section, and all other provisions of this Agreement, with respect to the Common Shares, shall apply on like terms to any such other shares.

 

(o)                                  The Company covenants not to take any action that would cause the Exercise Price of the Warrants to be adjusted to an amount less than the par value in effect from time to time of any shares issuable on exercise.

 

7.                                        Exercise of Warrants .  A Warrantholder may exercise the Warrants registered in its name, in whole at any time or in part from time to time on or after the date hereof and on or before the close of business on the Expiration Date, subject to the provisions of Section 8, at which time the Warrants as represented by the Warrant Certificates shall be and become wholly void and of no value.  Warrants may be exercised by Warrantholders or redeemed by the Company as follows:

 

(a)                                   Exercise of Warrants shall be accomplished upon surrender of the Warrant Certificate evidencing such Warrants, with the Form of Election to Purchase on the reverse side thereof duly filled in and executed by the Warrantholder, to the Warrant Agent at its stock transfer office in New York, New York, together with payment to the Warrant Agent on behalf of the Company by the Warrantholder of the Exercise Price (as of the date of such surrender) of the Warrants then being exercised and an amount equal to any applicable transfer tax and, if requested by the Company, any other taxes or governmental charges which the Company may be required by law to collect in respect of such exercise.  Payment of the Exercise Price and other amounts may be made by wire transfer of good funds, or by certified or bank cashier’s check, payable in lawful money of the United States of America to the order of the Company.  No adjustment shall be made for any cash dividends, whether paid or declared, on any securities issuable upon exercise of a Warrant.

 

(b)                                  Upon receipt of a Warrant Certificate, with the Form of Election to Purchase duly and properly filled in and executed by the Warrantholder (or the electronic equivalent, in the case of DTC), accompanied by payment of the Exercise Price of the Warrants being exercised by the Warrantholder (and of an amount equal to any applicable taxes or government charges as aforesaid), the Warrant Agent shall promptly (i) inform (y) the Company by emailing (to the email addresses of persons so requested in writing by the Company from time to time) a duly executed copy of an exercise notice, the form of which is attached hereto as Exhibit B relating to such exercise (the “ Exercise Notice ”) and (z) Bank Vontobel, its Swiss agent with respect to the Warrants (the “ Swiss Agent ”), by delivering to the address stated in the Exercise Notice a duly executed copy of such Exercise Notice; (ii) transfer the funds representing the aggregate Purchase Price to the Swiss bank account held by the Company at the Swiss Agent for this purpose; and (iii) upon (a) receipt of written confirmation from the Swiss Agent that the funds were received and (b) receipt of written instructions from the Company to so

 

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request, request from the Warrant transfer agent with respect to the securities to be issued and delivered to or upon the order of the Warrantholder