PHOENIX TECHNOLOGIES
LTD.
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
PHOENIX TECHNOLOGIES
LTD.
FORM OF DEBT SECURITIES WARRANT
AGREEMENT
Debt Securities Warrant
Agreement (this “Agreement”), dated as of
between Phoenix
Technologies Ltd. , a Delaware 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 title of 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:
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, senior 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 such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The term
“holder” or “holder of a Warrant
Certificate” as used herein shall mean any person in whose
name at the time any Warrant Certificate shall be registered upon
the books to be maintained by the Warrant Agent for that purpose
[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 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.
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 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 are 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.
(e) Prior to the issuance of any Warrants there shall have
been reserved, and the Company shall at all times through the
Expiration Date keep reserved, out of its authorized but unissued
Warrant Debt Securities, a number of shares sufficient to provide
for the exercise of the Warrants.
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 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 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.
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.
EXCHANGE AND TRANSFER OF WARRANT
CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. [If Other Securities with
Warrants which are immediately detachable—Upon] [If Other
Securities with Warrants which are not immediately
detachable—Prior to the Detachable Date, a Warrant
Certificate may be exchanged or transferred only together with the
Other Security to which the Warrant Certificate was initially
attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Other Security. Prior to any
Detachable Date, each transfer of the Other Security shall operate
also to transfer the related Warrant Certificates. After the
Detachable Date, upon] surrender at the corporate trust office of
the Warrant Agent, Warrant Certificates evidencing
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