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EXHIBIT 4.3
FORM OF WARRANT AGENT AGREEMENT
Dated as of [________ __], 2005
by and among
OGLEBAY NORTON COMPANY
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Warrant Agent
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WARRANT AGENT AGREEMENT
TABLE OF CONTENTS
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SECTION 1.
Certain Definitions; General Interpretive
Principles..............................1
SECTION 2.
Appointment of Warrant
Agent......................................................4
SECTION 3. Form
of Warrant
Certificates......................................................4
SECTION 4.
Execution of Warrant
Certificates.................................................4
SECTION 5.
Issuance of Warrants; Registration and
Countersignature...........................5
SECTION 6.
Registration of Transfers and
Exchanges...........................................5
SECTION 7. Terms
of Warrants; Exercise of
Warrants...........................................8
SECTION 8.
Payment of
Taxes.................................................................11
SECTION 9.
Mutilated or Missing Warrant
Certificates........................................11
SECTION 10.
Reservation of Warrant
Shares....................................................12
SECTION 11. Fractional
Interests.............................................................12
SECTION 12. Merger,
Consolidation or Change of Name of Warrant
Agent.........................12
SECTION 13. Warrant
Agent....................................................................13
SECTION 14.
Resignation and Removal of Warrant Agent; Appointment of
Successor...............15
SECTION 15. Notices to
Company and Warrant
Agent.............................................16
SECTION 16. Entire
Agreement.................................................................17
SECTION 17.
Supplements and
Amendments.......................................................17
SECTION 18.
Successors.......................................................................17
SECTION 19.
Termination......................................................................17
SECTION 20. Governing
Law....................................................................17
SECTION 21. Benefits
of this Warrant Agent
Agreement.........................................18
SECTION 22. Holder Not
Deemed a
Shareholder..................................................18
SECTION 23.
Counterparts.....................................................................18
SECTION 24.
Severability.....................................................................18
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WARRANT AGENT AGREEMENT
WARRANT AGENT AGREEMENT dated as of [________ __], 2005 (this
"Warrant
Agent Agreement") between Oglebay Norton Company, an Ohio
corporation, and Wells
Fargo Bank, National Association, as warrant agent.
RECITALS
A. On February 23, 2004, ONCO Investment Company ("ONCO") filed
a
voluntary petition for reorganization under Chapter 11 of Title 11
of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy
Court for
the District of Delaware (the "Bankruptcy Court"), which case is
being jointly
administered for procedural purposes before the Bankruptcy Court
with the cases
of the Company (as defined below) and all of the other direct and
indirect
wholly-owned subsidiaries of the Company (and collectively with
ONCO, the
"Debtors") under case number 04-10558 (collectively, the "Chapter
11 Cases").
B. Pursuant to the Second Amended Plan of Reorganization of Debtors
and
Debtors in Possession, dated July 30, 2004 (as further amended or
modified, the
"Plan"), which has been confirmed by the Bankruptcy Court in the
Chapter 11
Cases, the Company is required to issue warrants (the "Warrants")
entitling the
Holders (as defined below) to up to 576,256 shares of New Common
Stock (as
defined below).
C. The Company desires the Warrant Agent (as defined below) to act
on
behalf of the Company, and the Warrant Agent is willing to act as
the agent of
the Company in connection with the issuance, form, registration,
exercise,
transfer and exchange of the Warrants as well as other matters as
provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, and for the purpose of
defining the
respective rights and obligations of the Company, the Warrant Agent
and the
Holders, the parties hereto agree as follows:
SECTION 1. Certain Definitions; General Interpretive
Principles.
(a) Certain
Definitions. As used in this Warrant Agent Agreement,
the following terms will have the following respective
meanings:
"Bankruptcy Code" has the meaning set forth in Recital A to
this
Warrant Agent Agreement.
"Bankruptcy Court" has the meaning set forth in Recital A to
this
Warrant Agent Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on
which
national banking institutions in Cleveland, Ohio and Minneapolis,
Minnesota are
open.
"Chapter 11 Cases" has the meaning set forth in Recital A to
this
Warrant Agent Agreement.
<PAGE>
"Company" means Oglebay Norton Company, an Ohio corporation, and
its
successors and assigns.
"Debtors" has the meaning set forth in Recital A to this Warrant
Agent
Agreement.
"Definitive Warrant Certificates" have the meaning set forth in
Section
3.
"Definitive Warrants" have the meaning set forth in Section 3.
"Depositary" has the meaning set forth in Section 3.
"Distribution Record Date" means the date on which the Bankruptcy
Court
enters the order confirming the Plan pursuant to Section 1129 of
the Bankruptcy
Code.
"Distribution Record Date Stock Register" means the register
listing
each record holder of the Old Common Stock as of the close of
business on the
Distribution Record Date and setting forth the following
information with
respect to each such holder: (a) legal name, (b) mailing address,
(c) tax
identification number and (d) the number of shares of Old Common
Stock
registered with such record holder.
"Effective Date" means January 31, 2005.
"Exercise Amount" has the meaning set forth in Section 7(b).
"Exercise Price" means the purchase price per New Common Share to
be
paid upon the exercise of the Warrants in accordance with the terms
hereof,
which price will be $10.00 per New Common Share.
"Expiration Date" means March 2, 2005.
"Global Warrant Certificates" have the meaning set forth in Section
3.
"Global Warrants" have the meaning set forth in Section 3.
"Holder" means a person registered as the record holder of the
Warrants.
"New Common Shares" means shares of New Common Stock.
"New Common Stock" means the common stock, par value $0.01 per
share,
of the Company on and after the Effective Date, and any other
capital stock of
the Company into which such common stock may be converted or
reclassified or
that may be issued in respect of, in exchange for, or in
substitution for, such
common stock by reason of any stock splits, stock dividends,
distributions,
mergers, consolidations or other like events.
"Officer" has the meaning set forth in Section 4.
"Old Common Stock" means the common stock, par value $1.00 per
share,
of the Company prior to the Effective Date.
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"Original Holder" means a person registered as the record holder of
the
Warrants on the Effective Date.
"ONCO" has the
meaning set forth in Recital A to this Warrant Agent
Agreement.
"Person" means any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization or
government or any agency or political subdivision thereof.
"Plan" has the meaning set forth in Recital B to this Warrant
Agent
Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer Agent" has the meaning set forth in Section 10.
"Warrant" or "Warrants" has the meaning set forth in Recital B to
this
Warrant Agent Agreement.
"Warrant Agent" means Wells Fargo Bank, National Association or
the
successor or successors of such Warrant Agent appointed in
accordance with the
terms hereof.
"Warrant Certificates" means the Definitive Warrant Certificates
and
the Global Warrant Certificates.
"Warrant Exercise Notice" has the meaning set forth in Section
7(b).
"Warrant Shares" means the New Common Shares issued or issuable
upon
the exercise of the Warrants.
(b) General Interpretative Principles. For purposes of this
Warrant Agent Agreement, except as otherwise expressly provided or
unless the
context otherwise requires:
(i) the
terms defined herein include the plural as well
as the singular, and the use of any gender herein
will be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have
the meanings given to them in accordance with
generally accepted accounting principles;
(iii) references
herein to "Articles", "Sections",
"Subsections", "Paragraphs", and other subdivisions
without reference to a document are to designated
Articles, Sections, Subsections, Paragraphs and
other subdivisions hereof;
(iv) a reference
to a Subsection without further
reference to a Section is a reference to such
Subsection as contained in the same Section in
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which the reference appears, and this rule will also
apply to Paragraphs and other subdivisions;
(v) the
words "herein", "hereof", "hereunder" and other
words of similar import refer to this Warrant Agent
Agreement as a whole and not to any particular
provision;
(vi) the words
"include" and "including" will mean
without limitation by reason of enumeration; and
(vii) the headings in
this Warrant Agent Agreement are
solely for convenience of reference and will be
given no effect in the construction or
interpretation of this Warrant Agent Agreement.
SECTION 2. Appointment of Warrant Agent. The Company hereby
appoints
the Warrant Agent to act as agent for the Company in accordance
with the
instructions set forth hereinafter in this Warrant Agent Agreement,
and the
Warrant Agent hereby accepts such appointment, upon the terms and
conditions
hereinafter set forth.
SECTION 3. Form of Warrant Certificates. Subject to the provisions
of
this Warrant Agent Agreement, in accordance with the terms of the
Plan, on the
Effective Date, Warrants to purchase the Warrant Shares will be
issued by the
Company in the amounts and to the recipients specified in the Plan.
The Warrants
will be issued in definitive form (the "Definitive Warrants"),
substantially in
the form of Exhibit A-1, and in global form (the "Global
Warrants"),
substantially in the form of Exhibit A-2. Each certificate
representing Global
Warrants will represent such of the outstanding Warrants as will be
specified
therein and each certificate will provide that it will represent
the aggregate
amount of outstanding Warrants from time to time endorsed thereon
and that the
aggregate amount of outstanding Warrants represented thereby may
from time to
time be reduced or increased, as appropriate. The Depository Trust
Company (the
"Depositary") will act as securities depositary for the Global
Warrants. Upon
request, a Holder may receive from the Depositary and the Warrant
Agent separate
Definitive Warrants as set forth in Section 6 below. Any
certificates evidencing
the Definitive Warrants (the "Definitive Warrant Certificates") or
the Global
Warrants (the "Global Warrant Certificates") to be delivered
pursuant to this
Warrant Agent Agreement will be substantially in the forms set
forth in Exhibit
A-1 and Exhibit A-2, respectively, attached hereto.
SECTION 4. Execution of Warrant Certificates. Warrant Certificates
will
be signed on behalf of the Company by its Chairman of the Board of
Directors or
its President and Chief Executive Officer or a Vice President and
by its
Secretary or an Assistant Secretary (each, an "Officer"). Each such
signature
upon the Warrant Certificates may be in the form of a facsimile
signature of any
present or any future Officer and may be imprinted or otherwise
reproduced on
the Warrant Certificates and for that purpose the Company may adopt
and use the
facsimile signature of any such Officer.
If any Officer who will have signed any of the Warrant
Certificates
will cease to be such Officer before the Warrant Certificates so
signed will
have been countersigned by the Warrant Agent, or disposed of by the
Company,
such Warrant Certificates nevertheless may be
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countersigned and delivered or disposed of as though such person
had not ceased
to be such Officer; and any Warrant Certificate may be signed on
behalf of the
Company by any person who, at the actual date of the execution of
such Warrant
Certificate, will be an Officer, although at the date of the
execution of this
Warrant Agent Agreement any such person was not such an
Officer.
SECTION 5. Issuance of Warrants; Registration and Countersignature.
The
Warrant Agent, on behalf of the Company, will (a) number the
Warrant
Certificates received from the Company, (b) insert the name of the
Holder and
the number of Warrants and Warrant Shares such Holder is entitled
to receive on
each respective Warrant Certificate based on the information
provided in the
Distribution Record Date Stock Register to the Warrant Agent by the
Company, and
(c) register the Warrant Certificates in a register as they are
issued.
The Warrant Agent will also countersign the Warrant
Certificates.
Warrant Certificates will be countersigned manually by the Warrant
Agent and
will not be valid for any purpose unless so countersigned. The
Warrant Agent
will, upon written instructions of the Chairman of the Board of
Directors, the
President and Chief Executive Officer or a Vice President of the
Company,
initially countersign, issue and deliver Warrants entitling the
Holders thereof
to purchase approximately the number of Warrant Shares referred to
in Recital B
above and will countersign and deliver Warrants as otherwise
provided in this
Warrant Agent Agreement.
On the Effective Date, the Warrant Agent will then arrange to
deliver
or cause to be delivered, by first class mail, the Warrant
Certificates to the
respective Holders at the mailing address set forth in the
Distribution Record
Date Stock Register.
The Company and the Warrant Agent may deem and treat the Holder(s)
of
the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any
notation of ownership or other writing thereon made by anyone), for
all
purposes, and neither the Company nor the Warrant Agent will be
affected by any
notice to the contrary.
SECTION 6. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Definitive Warrants. When
Definitive
Warrant Certificates are presented to the Warrant Agent with a
written request:
(i) to
register the transfer of the Definitive Warrant
Certificates; or
(ii) to exchange
such Definitive Warrant Certificates for
an equal number of Definitive Warrants of other
authorized denominations, the Warrant Agent will
register the transfer or make the exchange as
requested if its requirements for such transactions
are met; provided, however, that the Definitive
Warrant Certificates presented or surrendered for
registration of transfer or exchange:
(A) will
be duly endorsed or accompanied by a
written instruction of transfer in the form
required by the Warrant Agent Agreement or
satisfactory to the Warrant Agent,
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duly executed by the Holder thereof or by his
attorney, duly authorized in writing; and
(B) upon
the request of the Company, such request
will be accompanied by evidence, including an
opinion of counsel if requested, reasonably
satisfactory to the Company (and its counsel)
that either:
(1) the
Warrant is being delivered to the
Warrant Agent by a Holder for
registration in the name of such
Holder, without transfer; or
(2) the
Warrant is being transferred in
reliance on an exemption from the
registration requirements of the
Securities Act.
(b) Exchange of a Definitive Warrant for a Beneficial Interest
in
a Global Warrant. Upon receipt by the Warrant Agent of a Definitive
Warrant that
is not a restricted Warrant, duly endorsed or accompanied by
appropriate
instruments of transfer, in the form required by this Warrant Agent
Agreement or
satisfactory to the Warrant Agent, together with, written
instructions directing
the Warrant Agent to make, or to direct the Depositary to make, an
endorsement
on the Global Warrant Certificate to reflect an increase in the
number of
Warrants represented by the Global Warrant Certificate, then the
Warrant Agent
will cancel such Definitive Warrant and cause, or direct the
Depositary to
cause, in accordance with the standing instructions and procedures
existing
between the Depositary and the Warrant Agent, the number of
Warrants represented
by the Global Warrant Certificate to be increased accordingly. If
no Global
Warrant Certificate is then outstanding, the Company will issue and
the Warrant
Agent will countersign a new Global Warrant Certificate
representing the
appropriate number of Warrants.
(c) Transfer and Exchange of Global Warrants or Beneficial
Interests Therein. The transfer and exchange of Global Warrants or
beneficial
interests represented by a Global Warrant Certificate will be
effected through
the Depositary, in accordance with this Warrant Agent Agreement and
the
procedures of the Depositary therefor.
(d) Exchange of a Beneficial Interest in a Global Warrant for a
Definitive Warrant.
(i) Any
person having a beneficial interest in a Global
Warrant may, upon written request to the Warrant
Agent, exchange such beneficial interest for a
certificate representing a Definitive Warrant. Upon
receipt by the Warrant Agent of written instructions
or such other form of instructions (as is customary
for the Depositary) from the Depositary or its
nominee on behalf of any person having a beneficial
interest in a Global Warrant, the Warrant Agent will
cause, in accordance with the standing instructions
and procedures existing between the Depositary and
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Warrant Agent, a Definitive Warrant Certificate
representing the number of Warrants representing
such person's beneficial interests to be issued and
simultaneously reduce the number of Warrants
represented by the Global Warrant Certificate.
(ii) Definitive
Warrant Certificates issued in exchange
for beneficial interests represented by a Global
Warrant pursuant to this Section 6(d) will be
registered in such names as the Depositary, pursuant
to
instructions from its direct or indirect
participants or otherwise, will instruct the Warrant
Agent. The Warrant Agent will deliver such
Definitive Warrant Certificates to the persons in
whose names such Warrants are so registered.
(e) Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agent
Agreement (other than
the provisions set forth in Subsection (g) of this Section 6), a
Global Warrant
Certificate may not be transferred as a whole except by the
Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Countersigning of Definitive Warrants in Absence of
Depositary. If at any time:
(i) the
Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for
the Global Warrants and a successor Depositary for
the Global Warrants is not appointed by the Company
within five Business Days after delivery of such
notice; or
(ii) the
Company, in its sole discretion, notifies the
Warrant Agent in writing that it elects to cause the
issuance of Definitive Warrant Certificates under
this Warrant Agent Agreement,
then the Company will execute, and the Warrant Agent, upon written
instructions
signed by two Officers of the Company, will countersign and deliver
Definitive
Warrant Certificates, in an aggregate number equal to the number of
Warrants
represented by Global Warrants, in exchange for such Global
Warrants.
(g) Cancellation of Global Warrant. At such time as all
beneficial
interests in Global Warrants have either been exchanged for
Definitive Warrants,
exercised, redeemed, repurchased or cancelled, all Global Warrant
Certificates
will be returned to, and then cancelled by, the Warrant Agent.
(h) Obligations with respect to Transfers and Exchanges of
Warrants.
(i) To
permit registrations of transfers and exchanges,
the Company will execute and the Warrant Agent is
hereby authorized to countersign, in accordance with
the provisions of Section 5 and
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this Section 6, Definitive Warrant Certificates and
Global Warrant Certificates as required pursuant to
the provisions of this Section 6.
(ii) All
Definitive Warrant Certificates and Global
Warrant Certificates issued upon any registration of
transfer or exchange of Definitive Warrants or
Global Warrants will be the valid obligations of the
Company, entitled to the same benefits under this
Warrant Agent Agreement, as the Definitive Warrants
or Global Warrants surrendered upon such
registration of transfer or exchange.
(iii) Prior to due
presentment for registration of
transfer of any Warrant, the Warrant Agent and the
Company may deem and treat the person in whose name
any Warrant is registered as the absolute owner of
such Warrant, and neither the Warrant Agent nor the
Company will be affected by notice to the contrary.
(iv) No service
charge will be made to a Holder for any
registration, transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
stamp or other governmental charge that may be
imposed on a Holder in connection with any such
exchange or registration of transfer.
SECTION 7. Terms of Warrants; Exercise of Warrants. (a) Each
Warrant
will be exercisable at any time and from time to time beginning on
the Effective
Date and ending on 5:00 p.m., Eastern time, on the Expiration Date.
After 5:00
p.m., Eastern time, on the Expiration Date, the Warrants will
become void and of
no value and all rights of the holder under the Warrant Certificate
evidencing
such Warrant and under this Warrant Agent Agreement will cease. On
the Effective
Date, each record holder of Old Common Stock as of the close of
business on the
Distribution Record Date will receive one Warrant for each share of
Old Common
Stock then held. Subject to the provisions of this Warrant Agent
Agreement and
applicable law, each Warrant issued on the Effective Date will
entitle the
Original Holder thereof to purchase from the Company (and the
Company will issue
and sell to such Original Holder) one-tenth (1/10th) of a fully
paid and
nonassessable share of New Common Stock. The Warrants will entitle
the Holder
thereof to purchase at the Exercise Price one Common Share for each
ten (10)
Warrants held. Except in the case where a Holder is exercising all
Warrants then
held, Warrant Shares may be purchased only pursuant to the exercise
of Warrants
in integral multiples of ten (10). No fractions of a Warrant Share
will be
issued upon exercise of any Warrants. If any fraction of a Warrant
Share would
be issuable on the exercise of all Warrants then held by a Holder,
the number of
Warrant Shares issuable to such Holder pursuant to such Warrants
will reflect a
rounding to the nearest whole number of Warrant Shares to be issued
(up or
down), with half shares being rounded up as provided in Section 11.
The Warrants
are transferable; provided, however, that any Warrants held by an
affiliate of
the Company may generally only be resold pursuant to a valid
exemption under the
Securities Act. The Warrants are exercisable by the subsequent
Holder thereof
pursuant to the terms and conditions provided in this Warrant Agent
Agreement.
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(b) Warrants may be exercised upon surrender to the Company at
the
principal office of the Warrant Agent of (i) the certificate or
certificates
evidencing the Warrants to be exercised, (ii) the form of election
to purchase
on the reverse of such certificate or certificates (the "Warrant
Exercise
Notice") duly filled in and signed, which signature must be
guaranteed by an
Eligible Guarantor Institution pursuant to SEC Rule 17Ad-15, and
(iii) payment
to the Warrant Agent, for the account of the Company, of the amount
equal to the
Exercise Price multiplied by the number of shares of New Common
Stock (the
"Exercise Amount") of which such Warrants are then exercised.
Payment of the
Exercise Amount will be made to the Warrant Agent by certified
check, official
bank check, express money order, payable to the order of the
Company, or by wire
transfer in immediately available funds as follows:
Wells Fargo Bank, National Association
San Francisco, California
ABA # 121000248
A/C # 16749600
A/C Name: Oglebay Norton Company Warrants
REF: Wells Fargo Bank, National Association,
As Agent for Oglebay Norton Company
Attn: Jane Schweiger
The exercise of Warrants by Holders of beneficial interest in
Global
Warrants will be effected in accordance with this Warrant Agent
Agreement and
the procedures of the Depository therefor.
(c) All Warrant Certificates surrendered upon exercise of
Warrants
will be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates will
then be disposed of by the Warrant Agent in accordance with the
Warrant Agent's
customary procedures and shall provide evidence to the Company upon
its request
of any such cancelled Warrant Certificates. The Warrant Agent will
account
promptly to the Company with respect to Warrants exercised and
concurrently pay
to the Company all monies received by the Warrant Agent for the
purchase of the
Warrant Shares through the exercise of such Warrants. On or before
the third day
following the Expiration Date, the Warrant Agent will certify in
writing,
delivered as provided in Section 15 hereof, the actual number of
Warrants
exercised and paid for as of 5:00 p.m., Eastern time, on the
Expiration Date.
(d) Any exercise of a Warrant pursuant to the terms of this
Warrant Agent Agreement will be irrevocable and will constitute a
binding
agreement between the Holder and the Company, enforceable in
accordance with its
terms.
(e) The Warrant Agent will:
(i)
examine all Warrant Exercise Notices and all other
documents delivered to it by or on behalf of Holders
as contemplated by the Warrant Certificates to
ascertain whether, on their face, such Warrant
Exercise Notices and any such other documents have
been
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executed and completed in accordance with their
terms and the terms of the Warrant Certificates and
this Warrant Agent Agreement;
(ii) where a
Warrant Exercise Notice or other document
appears on its face to have been improperly
completed or executed or some other irregularity in
connection with the exercise of the Warrants exists,
the Warrant Agent will endeavor to inform the
appropriate parties (including the person submitting
such instrument) of the need for fulfillment of all
requirements, specifying those requirements which
appear to be unfulfilled;
(iii) inform the
Company of and cooperate with and assist
the Company in resolving any reconciliation problems
between Warrant Exercise Notices received and
delivery of Warrants to the Warrant Agent's account;
(iv) advise the
Company no later than one business day
after receipt of a Warrant Exercise Notice, of (A)
the receipt of such Warrant Exercise Notice and the
number of Warrants exercised in accordance with the
terms and conditions of this Warrant Agent
Agreement, (B) the instructions with respect to
delivery of the shares of New Common Stock of the
Company deliverable upon such exercise, subject to
timely receipt from the Depositary of the necessary
information, and (C) such other information as the
Company will reasonably require; and
(v)
subject to New Common Stock being made available to
the Warrant Agent by or on behalf of the Company for
delivery to the Depositary, liaise with the
Depositary and endeavor to effect such delivery to
the relevant accounts at the Depositary in
accordance with its requirements.
(f) All questions as to the validity, form and sufficiency
(including time of receipt) of a Warrant exercise will be
determined by the
Company in its sole discretion, which determination will be final
and binding.
The Warrant Agent will incur no liability for or in respect of
such
determination by the Company. The Company reserves the right to
reject any and
all Warrant Exercise Notices not in proper form or for which any
corresponding
agreement by the Company to exchange would, in the opinion of the
Company, be
unlawful. Such determination by the Company will be final and
binding on the
Holders, absent manifest error. Moreover, the Company reserves the
absolute
right to waive any of the conditions to the exercise of Warrants or
defects in
Warrant Exercise Notices with regard to any particular exercise of
Warrants. The
Company will be under no duty to give notice to the Holders of the
Warrants of
any irregularities in any exercise of Warrants, nor will it incur
any liability
for the failure to give such notice.
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(g) As soon as practicable after the exercise of any Warrant,
the
Company will issue, or otherwise deliver, in authorized
denominations to or upon
the order of the Holder of the Warrant Certificates evidencing such
Warrants,
either:
(i) if
such Holder holds the Warrant being exercised
through the Depositary's book-entry transfer
facilities, by credit to the Depositary for the
account of such Holder or for the account of a
participant in the Depositary the number of Warrant
Shares to which such Holder is entitled, in each
case registered in such name and delivered to such
account as directed in the Warrant Exercise Notice
by such Holder or by the direct participant in the
Depositary through which such Holder is acting, or
(ii) if such
Holder holds the Warrants being exercised in
the form of Definitive Warrant Certificates, by
delivery to the address designated by such Holder in
its Warrant Exercise Notice of a physical
certificate representing the number of Warrant
Shares to which such Holder is entitled, in fully
registered form, registered in such name or names as
may be directed by such Holder. If less than all of
the Warrants evidenced by a Warrant Certificate
surrendered upon the exercise of Warrants are
exercised at any time prior to the date of
expiration for the Warrants, a new Warrant
Certificate or Certificates will be issued for the
remaining number of Warrants evidenced by the
Warrant Certificate so surrendered, and the Warrant
Agent is hereby authorized to countersign the
required new Warrant Certificate or Certificates
pursuant to the provisions of Section 5 and this
Section 7.
(h) The Warrant Agent will keep copies of this Warrant Agent
Agreement and any notices given or received hereunder by or from
the Company
available for inspection by the Holders during normal business
hours at its
office. The Company will supply the Warrant Agent from time to time
with such
numbers of copies of this Warrant Agent Agreement as the Warrant
Agent may
request.
SECTION 8. Payment of Taxes. The Company will pay all documentary
stamp
taxes attributable to the initial issuance of Warrant Shares upon
the exercise
of Warrants; provided that the Company will not be required to pay
any tax or
taxes which may be payable in respect of any transfer involved in
the issue of
any new certificates evidencing the Warrants or any certificates
for Warrant
Shares in a name other than that of the registered Holder upon the
exercise of
Warrants, and the Company or the Warrant Agent will not be required
to issue or
deliver such new certificates evidencing the Warrants or
certificates for
Warrant Shares unless or until the person or persons requesting the
issuance
thereof will have paid to the Company the amount of such tax or
will have
established to the satisfaction of the Company that such tax has
been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. If any
Warrant
Certificate will be mutilated, lost, stolen or destroyed, the
Company may in its
discretion issue and the Warrant Agent may countersign in exchange
and
substitution for, and upon cancellation of, the Warrant
-11-
<PAGE>
Certificate, if mutilated or in lieu of and substitution for the
Warrant
Certificate, if lost, stolen or destroyed, a new certificate of
like tenor
evidencing an equal number of Warrants, but only upon receipt of
evidence
reasonably satisfactory to the Company and Warrant Agent of such
loss, theft or
destruction and indemnity and security therefor, if requested, also
satisfactory
to the Company and the Warrant Agent. Applicants for such
substitute Warrant
Certificate will also comply with such other reasonable regulations
and pay such
other reasonable charges as the Company or Warrant Agent may
prescribe.
SECTION 10. Reservation of Warrant Shares. The Company will at
all
times reserve and keep available, free from preemptive rights, or
any other
actual contingent purchase rights of persons other than the Holders
out of the
aggregate of its authorized but unissued New Common Shares, for the
purpose of
enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of
Warrants, the maximum number of New Common Shares which may then be
deliverable
upon the exercise of all outstanding Warrants.
The transfer agent for the New Common Stock (the "Transfer Agent")
and
every subsequent transfer agent for any shares of the Company's
capital stock
issuable upon the exercise of any of the rights of purchase
aforesaid will be
irrevocably authorized and directed at all times to reserve such
number of
authorized shares as will be required for such purpose. The Company
wil
