Exhibit 4.13
CELL THERAPEUTICS,
INC.
and
[
], as Warrant Agent
FORM OF DEBT
SECURITIES
WARRANT AGREEMENT
Dated as of
[
]
TABLE OF CONTENTS
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Page
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ARTICLE 1
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ISSUANCE OF WARRANTS
AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
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1
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1.1
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Issuance of Warrants
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1
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1.2
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Execution and Delivery of Warrant
Certificates
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2
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1.3
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Issuance of Warrant Certificates
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2
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ARTICLE 2
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WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
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3
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2.1
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Warrant Price
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3
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2.2
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Duration of Warrants
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3
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2.3
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Exercise of Warrants
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3
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ARTICLE 3
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OTHER PROVISIONS
RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
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4
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3.1
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No Rights as Holders of Warrant Debt Securities
Conferred by Warrants or Warrant Certificates
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4
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3.2
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Lost, Stolen, Mutilated or Destroyed Warrant
Certificates
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5
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3.3
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Holder of Warrant Certificate May Enforce
Rights
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5
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3.4
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Merger, Sale, Conveyance or Lease
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5
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3.5
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Notice to Warrantholders
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6
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ARTICLE 4
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EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
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6
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4.1
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Exchange and Transfer of Warrant
Certificates
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6
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4.2
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Treatment of Holders of Warrant
Certificates
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7
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4.3
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Cancellation of Warrant Certificates
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7
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ARTICLE 5
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CONCERNING THE WARRANT
AGENT
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7
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5.1
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Warrant Agent
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7
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5.2
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Conditions of Warrant Agent’s
Obligations
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8
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5.3
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Resignation, Removal and Appointment of
Successors
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9
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ARTICLE 6
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MISCELLANEOUS
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10
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6.1
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Amendment
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10
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6.2
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Notices and Demands to the Company and Warrant
Agent
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11
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6.3
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Addresses
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11
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6.4
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Governing Law
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11
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-i-
TABLE OF CONTENTS
(continued)
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Page
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6.5
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Delivery of Prospectus
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11
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6.6
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Obtaining of Governmental Approvals
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11
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6.7
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Persons Having Rights Under Warrant
Agreement
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11
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6.8
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Headings
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11
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6.9
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Counterparts
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12
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6.10
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Inspection of Agreement
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12
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-ii-
CELL THERAPEUTICS,
INC.
Form of Debt Securities Warrant
Agreement
DEBT SECURITIES WARRANT
AGREEMENT , dated as of
between Cell Therapeutics, Inc., a Washington corporation (the
“ Company ”) and
,
a [corporation] [national banking association] organized and
existing under the laws of and having a corporate trust office in
,
as warrant agent (the “ Warrant Agent
”).
WHEREAS , the Company has entered into an indenture
dated as of
[
(the “ Senior Indenture ”), with
, as trustee (such trustee, and any successors to such trustee,
herein called the “ Senior Trustee ”),
providing for the issuance from time to time of its unsubordinated
debt securities, to be issued in one or more series as provided in
the Senior Indenture (the “ Debt Securities
”);]
[
(the “ Subordinated Indenture ”), with
,
as trustee (such trustee, and any successors to such trustee,
herein called the “ Subordinated Trustee
”), providing for the issuance from time to time of its
subordinated debt securities, to be issued in one or more series as
provided in the Subordinated Indenture (the “ Debt
Securities ”);]
WHEREAS , the Company proposes to sell [If Warrants are
sold with other securities—title of such other Securities
being offered (the “ Other Securities ”)
with] 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 Debt 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, and the Warrant Agent is willing so to
act, in connection with the issuance, registration, 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, registered, 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:
ARTICLE 1
ISSUANCE OF WARRANTS AND
EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance of
Warrants. [If Warrants
alone—Upon issuance, each Warrant Certificate shall evidence
one or more Warrants.] [If Other Securities and
Warrants—Warrant Certificates shall be [initially] issued in
connection with the issuance of the Other Securities [but shall be
separately transferable on and after
(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 one Warrant Debt Security. [If
Other Securities and Warrants—
Warrant Certificates shall be initially issued
in units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence
Warrants for each
[$
principal amount]
[
shares] of Other Securities included in such unit.].
1.2 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 the date of its countersignature
by the Warrant Agent 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 securities
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 any of its present or future chief executive officers,
presidents, executive vice presidents, vice presidents, chief
financial officers, chief legal officers, treasurers, assistant
treasurers, controllers, assistant controllers, secretaries or
assistant secretaries under its corporate seal reproduced thereon.
Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant 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 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 [If Other Securities and Warrants are not
immediately detachable—or upon the registration of the Other
Securities prior to the Detachable Date. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Other
Securities to, make available at all times to the Warrant Agent
such information as to holders of the Other Securities as may be
necessary to keep the Warrant Agent’s records up to
date].
1.3 Issuance of Warrant
Certificates. Warrant
Certificates evidencing the right to purchase Warrant Debt
Securities may be executed by the Company and delivered to
the
-2-
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 such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the
Company.
ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
2.1 Warrant Price.
During the period specified in
Section 2.2, each Warrant shall, subject to the terms of this
Warrant Agreement and the applicable Warrant Certificate, entitle
the holder thereof, to purchase the principal amount of Warrant
Debt Securities specified in the applicable Warrant Certificate at
an exercise price of
%
of the principal amount thereof [plus accrued amortization, if any,
of the original issue discount of the Warrant Debt Securities]
[plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities
or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original
issue discount
($
for each $1,000 principal amount of Warrant Debt Securities) will
be amortized at a
%
annual rate, computed on a[n] [semi-] annual basis [using a 360-day
year consisting of twelve 30-day months].] Such purchase price for
the Warrant Debt Securities is referred to in this Agreement as the
“ Warrant Price .”
2.2 Duration of
Warrants. Each Warrant
may be exercised in whole or in part at any time, as specified
herein, on or after [the date thereof]
[ ]
and at or before
[ ]
p.m., [City] time, on
or such later date as the Company may designate by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to
their addresses as set forth in the record books of the Warrant
Agent (the “Expiration Date”). Each Warrant not
exercised at or before
[ ]
p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
2.3 Exercise of
Warrants.
(a) During the period specified in
Section 2.2, the Warrants may be exercised to purchase a whole
number of Warrant Debt Securities in registered form by providing
certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United
States of America, [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 Warrant Price for each Warrant
Debt Security with respect to which a Warrant is being exercised to
the Warrant Agent at its corporate trust office, provided
that such exercise is subject to receipt within five business
days of such payment by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Debt
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; provided,
however, that if, at the date of receipt of such Warrant
Certificates and payment in full
-3-
of the Warrant Price, the transfer books for the
Warrant Debt Securities purchasable upon the exercise of such
Warrants shall be closed, no such receipt of such Warrant
Certificates and no such payment of such Warrant Price shall be
effective to constitute the person so designated to be named as the
holder of record of such Warrant Debt Securities on such date, but
shall be effective to constitute such person as the holder of
record of such Warrant Debt Securities for all purposes at the
opening of business on the next succeeding day on which the
transfer books for the Warrant Debt Securities purchasable upon the
exercise of such Warrants shall be opened, and the certificates for
the Warrant Debt Securities in respect of which such Warrants are
then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened,
and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Debt Securities. 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 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 of
(i) the number of Warrant Debt Securities with respect to
which Warrants were exercised, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Debt Securities to which such
holder is entitled upon such exercise, (iii) delivery of
Warrant Certificates evidencing the balance, if any, of the
Warrants for the remaining Warrant Debt Securities after such
exercise, and (iv) such other information as the Company or
the [Senior] [Subordinated] 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 Debt 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 were exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Debt Securities
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 Debt Securities, and in the event that any
such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Debt Securities 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
CERTIFICATES
3.1 No Rights as Holders of
Warrant Debt Securities Conferred by Warrants or Warrant
Certificates. No Warrant
Certificate or Warrant evidenced thereby shall
-4-
entitle the holder thereof to any of the rights
of a holder of Warrant Debt Securities, including, without
limitation, the right to receive the payment of principal of (or
premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants in the
Indenture.
3.2 Lost, Stolen, Mutilated or
Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence
reasonably satisfactory to it and the Company of the ownership of
and the loss, theft, destruction or mutilation of any Warrant
Certificate and/or indemnity reasonably satisfactory to the Warrant
Agent and the Company and, in the case of mutilation, upon
surrender of the mutilated Warrant Certificate 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 Warrants for a like
principal amount of Warrant Debt Securities. Upon the issuance of
any new Warrant Certificate under this Section 3.2, 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 3.2 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 3.2 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.
3.3 Holder of Warrant Certificate
May Enforce Rights. Notwithstanding any of the provisions of this
Agreement, any holder of any Warrant Certificate, without the
consent of the Warrant Agent, the [Senior] [Subordinated] Trustee,
the holder of any Warrant Debt Securities or the holder of any
other Warrant Certificate, may, in such holder’s own behalf
and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such
holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such
holder’s Warrant Certificates and in this
Agreement.
3.4 Merger, Sale, Conveyance or
Lease. In case of
(a) any share exchange, merger or similar transaction of the
Company with or into another person or entity (other than a share
exchange, merger or similar transaction in which the Company is the
acquiring or surviving corporation) or (b) the sale, exchange,
lease, transfer or other disposition of all or substantially all of
the properties and assets of the Company as an entirety (in any
such case, a “ Reorganization Event ”),
then, as a condition of such Reorganization Event, lawful
provisions shall be made, and duly executed documents evidencing
the same from the Company’s successor shall be delivered to
the holders of the Warrants, so that such successor shall succeed
to and be substituted for the Company, and assume all the
Company’s obligations under, this Agreement and the Warrants.
The Company shall thereupon be relieved of any further obligation
hereunder
-5-
or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming
entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which heretofore shall not have been
signed by the Company, and may execute and deliver securities in
its own name, in fulfillment of its obligations to deliver Warrant
Debt 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 Reorganization Event, such changes
in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a
written opinion of legal counsel as conclusive evidence that any
such Reorganization Event complies with the provisions of this
Section 3.4.
3.5 Notice to
Warrantholders. In case
the Company shall (a) effect any Reorganization Event or
(b) make any distribution on or in respect of the [title of
Warrant Debt Securities] in connection with the dissolution,
liquidation or winding up of the Company, then the Company shall
mail to each holder of Warrants at such holder’s address as
it shall appear on the books of the Warrant Agent, at least ten
days prior to the applicable date hereinafter specified, a notice
stating the date on which such Reorganization Event, dissolution,
liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of [title of Warrant
Debt Securities] of record shall be entitled to exchange their
shares of [title of Warrant Debt Securities] for securities or
other property deliverable upon such Reorganization Event,
dissolution, liquidation or winding up. No failure to mail such
notice nor any defect therein or in the mailing thereof shall
affect any such transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT
CERTIFICATES
4.1 Exchange and Transfer of
Warrant Certificates. [If
Other Securities with Warrants which are immed