WARRANT AGREEMENT

 

 Exhibit 4.10

Horizon Financial Corp.

and

__________________________________,

Warrant Agent

__________________________________

WARRANT AGREEMENT

 ___________________________

Providing for the Issuance of ____________________ Warrants

Dated as of _______________________, 20___

 

 

WARRANT AGREEMENT

THIS WARRANT AGREEMENT is entered into as of, 20__ between Horizon Financial Corp., a corporation incorporated under the laws of the State of Washington (the “Company”) and _____________________, a ________ incorporated under the laws of ____________ (the “Agent”).

W I T N E S S E T H:

WHEREAS, the Company proposes to issue ____ Warrants, each Warrant entitling the registered owner thereof to purchase ________________________ of the Company at the price and upon the terms and conditions herein set forth; and

WHEREAS, the Company is duly authorized to issue the Warrants as provided in this Agreement; and

WHEREAS, all things necessary have been done and performed to make the Warrants when duly authenticated by the Agent and issued as provided for in this Agreement legally valid and binding obligations of the Company with the benefits and subject to the terms of this Agreement.

NOW, THEREFORE, for good and valuable consideration mutually given and received, the receipt and sufficiency thereof is hereby acknowledged, it is hereby agreed and declared as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1.   Definitions .  Except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Section 1.1 shall for all purposes of this Agreement, have the meanings herein specified, the following definitions to be equally applicable to both the singular and plural forms of any of the terms herein defined:

The term “Agent” shall mean _____________, a _________ incorporated under the laws of ____________ or its lawful successors from time to time appointed in accordance with this Agreement.

The term “Agreement” shall mean this Warrant Agreement between the Company and the Agent, as such agreement is originally executed or as it may from time to time be supplemented, modified or amended as provided herein.

The term “Business Day” shall mean any day which is not a Saturday or Sunday and which in New York, New York and Bellingham, Washington is neither a legal holiday nor a day on which banking institutions are authorized by law or regulation to close.

The term “Company” shall mean Horizon Financial Corp., a Washington corporation, until a successor entity shall have become such pursuant to the applicable provisions of this Agreement and thereafter the term “Company” shall mean such successor entity.

The term “Event of Default” shall mean any event specified as such in Section 6.1 hereof.  An Event of Default shall “exist” if an Event of Default shall have occurred and be continuing.

The term “Exercise Date” shall mean each date during the Exercise Period on which the ___________________________ are purchased by a Registered Owner through the exercise of all or a portion of its Warrants.

The term “Exercise Form” shall mean the form designated Exercise Form attached as Annex II to each Warrant.

The term “Exercise Period” shall mean the period commencing at 9:00 A.M. (Bellingham, Washington time) on _____________, 20__ and ending at 4:00 P.M. (Charleston, South Carolina time) on _____________, _____.

 

 

      The term “Exercise Price” shall have the meaning accorded such term in Section 2.1 of this Agreement.

The term “Expiration Time” means 4:00 p.m., Bellingham, Washington time, on ____________, 20__.

[The term “Indenture” shall mean that certain Indenture dated as of ___________, 20__ between the Company and ___________, as trustee, as such Indenture was originally executed or as it may from time to time be supplemented, modified or amended in accordance with the terms thereof.]

The term “Notice of Intent to Exercise” shall have the meaning accorded thereto in Section 4.1 of this Agreement. The form of Notice of Intent to Exercise is attached as Annex I to each Warrant.

The term “Outstanding” when used with reference to the Warrants shall mean, as of the date of determination, all Warrants theretofore authenticated and delivered under this Agreement, except:

The term “Person” shall mean an individual, a corporation, a partnership, a joint venture, an association, a joint stock company, a trust, an unincorporated organization, or a government or any agency, authority or political subdivision thereof.

The term “Register” shall mean the books for the registration and transfer of Warrants which books are kept by the Agent pursuant to Section 3.1 hereof.

The term “Warrantholders” or “Registered Owners” means the persons from time to time who are registered owners of the Warrants.

The term “Warrantholders’ Request” means an instrument signed in one or more counterparts by the Warrantholders entitled to purchase in the aggregate not less than a majority of the aggregate amount of _______________ which could be purchased pursuant to all Warrants then Outstanding requesting the Agent to take some action or proceeding specified therein.

The term “Warrants” means the ___________ Warrants issued hereunder pursuant to which Warrantholders have the right to purchase __________________ on the terms and conditions herein set forth.

The term “Written Order of the Company” and “Written Consent of the Company” mean, respectively, a written order or consent signed in the name of the Company by any one of its officers and may consist of one or more instruments so executed.

ARTICLE II

ISSUANCE OF WARRANTS

SECTION 2.1.   Issuance And Terms Of Warrants .  The issuance of Warrants entitling the Registered Owners thereof to purchase up to an aggregate of not more than ______________ of the __________________ is hereby authorized.  The Warrants shall be delivered by the Company to the Agent to be authenticated by the Agent and delivered in accordance with the Written Order of the Company.  The Warrants shall be dated ________, 20__ and shall be issuable in fully registered form and in denominations that permit the purchase upon exercise of ____________.

The Warrants shall be exercisable on any Business Day during the Exercise Period. Each Warrant shall entitle the Registered Owner thereof to exercise such Warrant in accordance with and pursuant to the terms thereof for the purchase of  _______________________ at an exercise price of [$____] per _______ (the “Exercise Price”).

 

 

      SECTION 2.2.   Form of Warrants . The Warrants shall be in substantially the form set out in Exhibit A hereto, with such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement. The Warrants may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistent herewith, be determined by the officer executing such Warrants as evidenced by such officer's execution thereof.

SECTION 2.3.   Mutilated, Lost, Destroyed or Stolen Warrants .  If (i) any mutilated Warrant is surrendered to the Agent, or the Company and the Agent receive evidence to their satisfaction of the destruction, loss or theft of any Warrant and (ii) there is delivered to the Company and the Agent such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Agent that such Warrant has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same principal amount, bearing a number not contemporaneously Outstanding.

Upon the issuance of any new Warrant under this Section 2.3, 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 connected therewith.

Every new Warrant issued pursuant to this Section 2.3 in lieu of any destroyed, lost or stolen Warrant shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant shall be at any time enforceable by anyone, and shall be entitled to all the security and benefits of this Agreement equally and ratably with all other Outstanding Warrants.

The provisions of this Section 2.3 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrants.

SECTION 2.4.   Warrantholder Not a Registered Owner of the _________________ .  The ownership of a Warrant shall not constitute the Registered Owner thereof an owner of any of the __________________ nor entitle the Registered Owner to any right or interest in respect thereof except upon the exercise and surrender of its Warrants and the payment of the purchase price of the __________________ in accordance with and pursuant to the terms herein provided.

SECTION 2.5.   Warrants to Rank Pari Passu . All Warrants shall rank pari passu with each other.

SECTION 2.6.   Execution of Warrants .  The Warrants shall be signed in the name and on behalf of the Company by one of its officers. The signature of the officer executing the Warrants may be manual or facsimile. In case any officer of the Company who shall have signed any of the Warrants (manually or in facsimile) shall cease to be such officer before the Warrants so signed shall have been authenticated and delivered by the Agent, such Warrants nevertheless may be authenticated and delivered as though the Person who signed such Warrants had not ceased to be such officer of the Company. In addition, any Warrant may be signed on behalf of the Company by such Persons as on the actual date of execution of such Warrant 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.

Only such of the Warrants as shall bear thereon a certificate of authentication in substantially the form set forth in Section 2.2 hereof, executed by the Agent, shall be entitled to the benefits of this Agreement or be valid or obligatory for any purpose.

SECTION 2.7.   Purchase of Warrants by the Company .  The Company may purchase in the market, by private contracts or otherwise all or any portion of the Warrants on such terms as the Company may determine.

 

 

ARTICLE III

EXCHANGE OF WARRANTS; REGISTRATION OF

TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS

SECTION 3.1.   Register .  The Agent, as agent of the Company, shall maintain, at its principal office in ____________, ____, the Register in which, subject to such reasonable regulations as it and the Company may prescribe, it shall provide for the registration of the Warrants and the transfer of Warrants as in this Agreement provided. The Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Registered Owners of the Warrants shall present directly to the Agent all requests for (a) registration of transfer of Warrants, (b) exchange of Warrants for new Warrants in authorized denominations and (c) replacement of Warrants in the case of mutilation, destruction, loss or theft.

Upon the Company's request, the Agent shall furnish the Company with a list of names and addresses of the Registered Owners showing the number of such Warrants held by each Registered Owner.

SECTION 3.2.   Exchange of Warrants .  Warrants entitling the Registered Owner to purchase any specified amount of __________________ may, upon compliance with the reasonable requirements of the Agent, be exchanged for Warrants entitling the Registered Owner thereof to purchase an equal amount of __________________.

Warrants may be exchanged only at the principal office of the Agent in _______________, ___ or at any other place that is designated by the Company.  Any Warrants tendered for exchange shall be surrendered to the Agent and canceled. The Company shall execute all Warrants necessary to carry out exchanges as aforesaid and such Warrants shall be authenticated by the Agent.

SECTION 3.3.   Charges for Exchange .  For each Warrant exchanged or transferred, the Agent, except as otherwise herein provided, shall, if required by the Company, charge a reasonable sum for each new Warrant issued; and payment of such charges and reimbursement of the Agent or the Company for any taxes or governmental or other charges required to be paid shall be made by the party requesting such exchange, as a condition precedent thereto.

SECTION 3.4.   Registration of Transfer; Restrictions on Transfers .  No transfer of a Warrant shall be valid unless made at the principal offices of the Agent in the ____________, __________ or at any other place that is designated by the Company as an office for registration of transfer by the Registered Owner or such Registered Owner's executors, administrators or other legal representatives or attorney duly appointed by an instrument in writing in form and execution satisfactory to the Agent and upon compliance with such reasonable requirements as the Agent and the Company may prescribe. Any Warrants tendered for registration of transfer shall be surrendered to the Agent.

SECTION 3.5.   Notice to Warrantholders .  Unless herein otherwise expressly provided, any notice to be given hereunder to Warrantholders shall be deemed to be validly given if such notice is mailed to the last addresses of the Warrantholders appearing on the Register. Any notice so given shall be deemed to have been given on the day on which it has been mailed.  In determining under any provision hereof the date when notice of any meeting or other event must be given, the date of giving notice shall be included and the date of the meeting or other event shall be excluded.

ARTICLE IV

EXERCISE OF WARRANTS

SECTION 4.1.   Method of Exercise of Warrants .  The Registered Owner of any Warrant may exercise the right thereby to purchase __________________ by surrendering to the Agent on any Business Day during the Exercise Period at the principal office of the Agent ___________, ___________, or at any other place or places that may be designated by the Company:

 

 

The items described in the foregoing clauses (a) and (b) shall be deemed received when an actual copy or a facsimile thereof is received by the Agent.  Each Warrant shall be deemed to be surrendered only upon personal delivery thereof to or, if sent by mail or other means of transmission, upon receipt thereof by, the Agent at the office specified in this Section 4.1. Each Warrant shall be deemed exercised as of the first Business Day on which all of the foregoing conditions are satisfied with respect to such Warrant. The first day on which the Warrants may be exercised is ________________, ____________, ___.  The Company acknowledges that the Registered Owners of the Warrants are not required under any circumstances to take any other actions in order to exercise their Warrants.

SECTION 4.2.   Effect of Exercise of Warrants .  Upon surrender and payment of the Exercise Price by the Registered Owner of any Warrant in accordance with Section 4.1, the __________________ so purchased shall be deemed to have been issued and the person or persons to whom such __________________ are to be issued shall be deemed to have become the Registered Owner or owners of such __________________ on the Exercise Date.

After the due exercise of a Warrant as aforesaid, the Company shall forthwith cause to be delivered to the person to whom the __________________ so purchased are to be issued at the address specified in such form or, if so specified in such purchase form, cause to be delivered to such person at the office where such Warrant was surrendered,  ______________.

SECTION 4.3.   Partial Exercise of Warrants .  Subject to the issuance of __________________ in authorized denominations only, the Registered Owner of any Warrant may purchase _________________ in an amount less than that which such Registered Owner is entitled to purchase pursuant to the surrendered Warrant.  In the event of any purchase of an amount of __________________ less than the amount which can be purchased pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior to the Expiration Time shall, in addition, be entitled to receive forthwith a new Warrant in respect of the balance of the __________________ which such Registered Owner was entitled to purchase pursuant to the surrendered Warrant and which were not then exercised. The Company shall not be responsible for any taxes which may be payable in connection with the issuance of such new Warrant.

SECTION 4.4.   Expiration of Warrants .  After the Expiration Time, all rights under any Warrant in respect of which the right of purchase herein and therein provided for shall not theretofore have been exercised pursuant to Section 4.1 shall cease and terminate and such Warrant shall become void and of no effect and all rights of the Registered Owner thereof under this Warrant Agreement shall cease and terminate as of such termination; provided that such Registered Owner's rights under this Warrant Agreement with respect to actions occurring prior to such termination shall remain in full force. After the Expiration Time, each Registered Owner of any Warrants shall return any unexercised Warrants to the Agent for cancellation in accordance with Section 4.5 of this Agreement.

SECTION 4.5.   Cancellation of Surrendered Warrants .  All Warrants surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall forthwith be canceled by the Agent. All Warrants canceled or required to be canceled under this or any other provision of this Agreement may be destroyed by or under the direction of the Agent and the Agent shall furnish the Company with a destruction certificate identifying the Warrants so destroyed and the __________________ which could have been purchased pursuant to each.

SECTION 4.6.   Accounting and Recording .  The Agent shall forthwith account and remit to the Company with respect to Warrants exercised and immediately forward to the Company (or into an account or accounts of the Company with the bank or trust company designated by the Company for that purpose) all monies received by the Agent on the purchase of ____________ through the exercise of Warrants. All such monies, and any ____________or other instruments,