Exhibit 4.5
WARRANT AGREEMENT dated as of
October 15, 2009 (this “ Warrant Agreement
”), between QUALITY DISTRIBUTION, INC., a Florida corporation
(the “ Corporation ”), and THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A., as warrant agent (the “
Warrant Agent ”).
WHEREAS, the Corporation desires to
issue the warrants (the “ Warrants ”) described
herein, which will initially entitle the holders thereof (the
“ Holders ”) to purchase, in the aggregate, up
to 1,752,895 shares of Common Stock, $.01 par value per share, of
the Corporation (“ Common Stock ”);
WHEREAS, the Warrants are being
issued in connection with the exchange offer (the “
Exchange Offer ”) pursuant to which Quality
Distribution, LLC, a wholly owned subsidiary of the Corporation
(“ QD LLC ”), and QD Capital Corporation, a
wholly owned subsidiary of the Corporation (together with QD LLC,
the “ Issuers ”), have agreed to exchange each
$1,000 principal amount of outstanding 9% Senior Subordinated Notes
due 2010 (the “ Old Notes ”) for debt and equity
securities (the “ Debt/Equity Securities
”);
WHEREAS, the Debt/Equity Securities
to be issued in exchange for each $1,000 principal amount of Old
Notes consist of (i) $1,000 principal amount of new 11.75%
Senior Subordinated Notes due 2013 (the “ New Notes
”) to be issued by the Issuers and (ii) 21.71 Warrants,
each to purchase one share of Common Stock at an exercise price of
$0.01 per share; and
WHEREAS, the Corporation further
desires the Warrant Agent to act on behalf of the Corporation in
connection with the issuance, transfer, exchange and exercise of
the Warrants and other matters as provided herein and the Warrant
Agent is willing to so act.
NOW, THEREFORE, each party agrees as
follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Warrants:
Article I
Definitions and Rules of
Construction
1.1 Definitions.
“ Affiliate ”
shall mean with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control
with, such Person; for purposes of this definition,
“control” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership
of voting securities or otherwise.
“ Board of Directors
” or “ Board ” means the board of
directors of the Corporation or any committee thereof duly
authorized to act on behalf of such board.
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
commercial banks in the City of New York, are authorized or
required by law or executive order to close.
“ Exercise Price
” means $0.01 per share of Common Stock.
“ Holde r” means
the Person in whose name a Warrant is registered on the Warrant
Registrar’s books.
“ IAI ” means an
institutional “accredited investor” as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities
Act.
“ Offering Memorandum
” means the Offering Memorandum and Consent Solicitation
Statement, dated August 28, 2009, of the Issuers, as amended
by Supplement No. 1, dated September 29, 2009.
“ Officer ” means
the Chairman of the Board of Directors, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary
of the Corporation.
“ Officers’
Certificate ” means a certificate signed by two
Officers.
“ Opinion of Counsel
” means a written opinion from legal counsel. Such counsel
may be an employee of or counsel to the Corporation.
“ Person ” means
any individual, corporation, limited liability company,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any
kind.
“ Regulation S ”
means Regulation S under the Securities Act.
“ Restricted Warrant
Legend ” means the legend set forth in
Section 2.5(c)(i) herein.
“ Rule 144A ” and
“ Rule 144 ” mean respectively, Rule 144A and
Rule 144 under the Securities Act.
“ SEC ” or
“ Commission ” means the Securities and Exchange
Commission.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Transfer Restricted
Warrants ” means Warrant Certificates that bear or are
required to bear the Restricted Warrant Legend.
“ Uniform Commercial
Code ” means the Uniform Commercial Code as in effect in
the State of New York.
“ Warrant Agent ”
means The Bank of New York Mellon Trust Company, N.A., or any
successor person to The Bank of New York Mellon Trust Company, N.A.
under this Warrant Agreement.
“ Warrant Certificates
” mean the registered certificates issued by the Corporation
under this Warrant Agreement representing the Warrants.
“ Warrant Officer
” means any officer within the corporate trust department of
the Warrant Agent, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer
or any other officer of the Warrant Agent who customarily performs
functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such Person’s knowledge
of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Warrant
Agreement.
“ Warrant Registrar
” has the meaning set forth in Section 2.3.
1.2 Rules of
Construction.
Unless the context otherwise
requires:
(a) a defined term has the meaning
assigned to it;
(b) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to
time;
(c) “or” is not
exclusive;
(d) “including” means
including without limitation; and
(e) words in the singular include
the plural and words in the plural include the singular.
Article II
Warrant
Certificates
2.1 Form and
Dating.
Each Warrant shall initially be
issued as part of the Debt/Equity Securities issued on the date
hereof, which will be offered and exchanged by the Corporation in
the Exchange Offer pursuant to the Offering Memorandum. In acting
as the transfer agent for the Warrants, the Warrant Registrar shall
be entitled to all the rights, privileges and immunities to which
the Warrant Agent is entitled in performing such role pursuant to
the terms of this Warrant Agreement. The Warrant Certificates shall
each be substantially in the form of Exhibit A attached
hereto. The terms and provisions contained in the Warrant
Certificate shall constitute, and are expressly incorporated in and
made a part of this Warrant Agreement, and to the extent
applicable, the Corporation and the Warrant Agent, by their
execution and delivery of this Warrant Agreement, expressly agree
to such terms and provisions and are bound thereby. The Warrants
may only be sold or transferred in accordance with this Warrant
Agreement and the Warrant Certificates may have notations, legends
or endorsements required by law, stock exchange rule, agreements to
which the Corporation is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to
the Corporation). Each Warrant Certificate shall be dated as of the
date of its countersignature.
2.2 Execution.
Two Officers shall sign each Warrant
Certificate for the Corporation by manual or facsimile signature.
If an Officer whose signature is on a Warrant Certificate no longer
holds that office at the time the Warrant Agent countersigns the
Warrant Certificate, the Warrant Certificate shall be valid
nevertheless. A Warrant shall not be valid until an authorized
signatory of the Warrant Agent manually countersigns the Warrant
Certificate. The signature shall be conclusive evidence that the
Warrant has been countersigned under this Warrant Agreement. The
Warrant Agent shall countersign and make available for delivery
upon a written order of the Corporation, signed by two Officers,
Warrant Certificates entitling the Holders thereof to purchase in
the aggregate not more than 1,752,895 shares of Common Stock,
subject to adjustment, as set forth in the Warrant Certificate. The
Warrant Agent may appoint an agent reasonably acceptable to the
Corporation to countersign the Warrants. Any such
appointment
shall be evidenced by an instrument signed by a
Warrant Officer, a copy of which shall be furnished to the
Corporation. Unless limited by the terms of such appointment, an
agent may countersign Warrants whenever the Warrant Agent may do
so. Each reference in this Warrant Agreement to countersigning by
the Warrant Agent includes countersigning by such countersigning
agent. An agent has the same rights as any Warrant Registrar or
agent for service of notices and demands.
2.3 Warrant
Registrar.
(a) The Corporation shall maintain
an office or agency where Warrants may be presented for
registration of transfer, exchange or exercise (the “
Warrant Registrar ”). The Warrant Registrar shall keep
a register of the Warrants and of their transfer, exchange or
exercise. The Corporation may have one or more co-registrars. The
term Warrant Registrar includes any co-registrars. The Corporation
shall initially appoint the Warrant Agent as Warrant Registrar in
connection with the Warrants.
(b) The Corporation shall enter into
an appropriate agency agreement with any Warrant Registrar who is
not a party to this Warrant Agreement. The agreement shall
implement the provisions of this Warrant Agreement that relate to
such agent. The Corporation shall notify the Warrant Agent of the
name and address of any such agent. If the Corporation fails to
maintain a Warrant Registrar, the Warrant Agent shall act as such
and shall be entitled to appropriate compensation pursuant to
Section 3.5 hereof. The Corporation or any of its domestically
organized wholly owned subsidiaries may act as Warrant
Registrar.
(c) The Corporation may remove any
Warrant Registrar upon written notice to such Warrant Registrar and
to the Warrant Agent; provided , however , that no
such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement
entered into by the Corporation and such successor Warrant
Registrar and delivered to the Warrant Agent or
(ii) notification to the Warrant Agent that the Warrant Agent
shall serve as Warrant Registrar until the appointment of a
successor in accordance with clause (i) above. The Warrant
Registrar may resign at any time upon written notice to the
Corporation and the Warrant Agent; provided , however
, that the Warrant Agent may resign as Warrant Registrar only if
the Warrant Agent also resigns as Warrant Agent in accordance with
Section 3.6.
(d) The Corporation and the Warrant
Agent may deem and treat the Person in whose name a Warrant
Certificate is registered as the absolute owner of such Warrant
Certificate for all purposes whatsoever and neither the Corporation
nor the Warrant Agent shall be affected by notice to the
contrary.
2.4 Holder Lists.
The Warrant Agent shall preserve in
as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of the Holders. If the
Warrant Agent is not the Warrant Registrar, the Corporation shall
furnish, or cause the Warrant Registrar to furnish, to the Warrant
Agent, in writing at such times as the Warrant Agent may request in
writing, a list in such form and as of such date as the Warrant
Agent may reasonably require of the names and addresses of
Holders.
2.5 Transfer and Exchange.
(a) General . The Warrants
shall be issued in registered form and shall be transferable only
upon the surrender of a Warrant Certificate for registration of
transfer and in compliance with the provisions set forth in this
Section 2.5. When a Warrant is presented to the Warrant
Registrar with a request to register a transfer, the Warrant
Registrar shall register the transfer as requested if its
requirements therefor are met. When Warrants are presented to the
Warrant Registrar with a request to exchange them for an equal
number of Warrants of other denominations, the Warrant Registrar
shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the
Corporation shall execute and the Warrant Agent shall countersign
Warrant Certificates at the Warrant Registrar’s request.
Except as provided in the Warrant Certificate, the Corporation may
require payment from the Holder of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with
any transfer or exchange pursuant to this
Section 2.5.
(b) Transfer and Exchange of
Warrant Certificates . When Warrant Certificates are presented
to the Warrant Registrar with a request:
(i) to register the transfer of such
Warrant Certificates or
(ii) to exchange such Warrant
Certificates for an equal amount of Warrant Certificates of other
authorized denominations,
the Warrant Registrar shall register
the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided ,
however , that the Warrant Certificates surrendered for
transfer or exchange:
(i) shall be duly endorsed or
accompanied by a written instrument substantially in the form of
Annex B attached to the Warrant Certificate, duly executed
by the Holder thereof or his attorney duly authorized in writing;
and
(ii) in the case of Warrant
Certificates which are Transfer Restricted Warrants, are
accompanied by the following additional information and documents,
as applicable:
(A) if such Warrant Certificates are
being delivered to the Warrant Registrar by a Holder to exchange
such Warrant Certificates for an equal amount of Warrant
Certificates of other authorized denominations for registration in
the name of such Holder, a certification from such Holder to that
effect, substantially in the form of Annex C attached to the
Warrant Certificate;
(B) if such Warrant Certificates are
being transferred to the Corporation, a certification to that
effect, substantially in the form of Annex C attached to the
Warrant Certificate; or
(C) if such Warrant Certificates are
being transferred (i) pursuant to an effective registration
statement under the Securities Act, (ii) in an offshore
transfer in reliance on Regulation S, or (iii) inside the
United States to an IAI, (w) a certification to that effect
substantially in the form of Annex C attached to the Warrant
Certificate, (x) if the Corporation so requests, an Opinion of
Counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the Restricted
Warrant Legend, (y) in the case of an
offshore transfer in reliance on
Regulation S, a signed letter from the transferee substantially in
the form of Annex D attached to the Warrant Certificate, and
(z) in the case of a transfer to an IAI, a signed letter from
the transferee substantially in the form of Annex E attached
to the Warrant Certificate.
(c) Legend .
(i) Except as permitted by the
following paragraph (ii), each Warrant Certificate (and all Warrant
Certificates issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form
(each defined term in the legend being defined as such for purposes
of the legend only):
“THIS WARRANT (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
“ SECURITIES ACT ”), AND THIS WARRANT MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THIS WARRANT AGREES
FOR THE BENEFIT OF THE CORPORATION THAT (A) THIS WARRANT MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (II) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (IV) TO THE
COPORATION OR ANY OF ITS SUBSIDIARIES, OR (V) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER FURNISHES THE WARRANT
AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THE WARRANT AND, IF SUCH
TRANSFER IS IN RESPECT OF WARRANTS VALUED AT LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS AND THE WARRANT AGENT
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES,
(B) THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS WITH
REGARD TO THIS WARRANT OR THE WARRANT SHARES EXCEPT IN COMPLIANCE
WITH THE SECURITIES ACT, AND (C) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY HOLDER OF THIS WARRANT
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) AND
(B) ABOVE.”
(ii) Upon any exchange or transfer
of a Warrant Certificate that is a Transfer Restricted Warrant, at
the option of the Corporation, a Warrant Certificate that is a
Transfer Restricted Warrant shall be exchanged by any Holder
thereof (other than an
Affiliate of the Corporation) for a
Warrant Certificate that is not a Transfer Restricted Warrant if
the exchange complies with the requirements of Section 2.5(b)
above and the Warrant Agent receives a certification from the
exchanging Holder in the form of Annex F attached to the
Warrant Certificate and if the Warrant Agent so requests, an
Opinion of Counsel in form reasonably acceptable to the Warrant
Agent to the effect that such exchange is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Restricted Warrant Legend are no longer required
in order to maintain compliance with the Securities Act.
(d) Obligations with Respect to
Transfers and Exchanges of Warrants.
(i) To permit registrations of
transfers and exchanges, the Corporation shall execute and the
Warrant Agent shall countersign, Warrant Certificates at the
Warrant Registrar’s request.
(ii) No service charge shall be made
for any registration of transfer or exchange, but the Corporation
may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments, or
similar governmental charge payable upon exchanges to be registered
in the name of the registered Holder effecting the exchange
pursuant to this Section 2.5).
(iii) All Warrant Certificates
issued upon any transfer or exchange pursuant to the terms of this
Warrant Agreement shall evidence the same terms and shall be
entitled to the same benefits under this Warrant Agreement as the
Warrant Certificates surrendered upon such transfer or
exchange.
(e) The Warrant Agent shall have no
obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this
Warrant Agreement or under applicable law with respect to any
transfer of any interest in any Warrant other than to require
delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by, the terms of this Warrant Agreement, and to examine
the same to determine substantial compliance as to form with the
express requirements hereof.
2.6 Lost, Stolen, Destroyed,
Defaced or Mutilated Warrant Certificate.
If a mutilated Warrant Certificate
is surrendered to the Warrant Agent or if the Holder of a Warrant
claims that the Warrant Certificate has been lost, destroyed,
stolen or defaced, the Corporation shall issue and the Warrant
Agent shall countersign a replacement Warrant Certificate if the
requirements of Section 8-405 of the Uniform Commercial Code
are met, such that the Holder (a) notifies the Corporation or
the Warrant Agent within a reasonable time after such Holder has
notice of such loss, destruction or theft and the Warrant Registrar
does not register a transfer prior to receiving such notification,
(b) makes such request to the Corporation or the Warrant Agent
prior to the Warrant being acquired by a protected purchaser as
defined in Section 8-303 of the Uniform Commercial Code (a
“protected purchaser”) and (c) satisfies any other
reasonable requirements of the Warrant Agent. If required by the
Warrant Agent or the Corporation, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Warrant Agent to
protect the Corporation and the Warrant Agent from any loss that
either of them may suffer if a Warrant is replaced. The Corporation
and the Warrant Agent may charge
the Holder for their expenses in replacing a
Warrant Certificate. Every replacement Warrant Certificate is an
additional obligation of the Corporation. The provisions of this
Section 2.6 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, destroyed or wrongfully taken
Warrants.
2.7 Outstanding
Warrants.
Warrants outstanding at any time are
all Warrant Certificates executed by the Corporation and
countersigned by the Warrant Agent except for those canceled by it,
those delivered to it for cancellation and those described in this
Section 2.7 as not outstanding. A Warrant does not cease to be
outstanding because an Affiliate of the Corporation holds the
Warrant. A Warrant ceases to be outstanding if the Corporation
holds the Warrant. If a Warrant Certificate is replaced pursuant to
Section 2.6, it ceases to be outstanding unless the Warrant
Agent and the Corporation receive proof satisfactory to them that
the replaced Warrant Certificate is held by a protected
purchaser.
2.9 Temporary
Warrants.
Until Warrant Certificates are ready
for delivery, the Corporation may prepare and the Warrant Agent
shall countersign temporary Warrant Certificates (the “
Temporary Warrant Certificates ”). Temporary Warrant
Certificates shall be substantially in the form of Warrant
Certificates but may have variations that the Corporation considers
appropriate for temporary Warrants. Without unreasonable delay, the
Corporation shall prepare and the Warrant Agent shall countersign
Warrant Certificates and deliver them in exchange for Temporary
Warrant Certificates upon surrender of such Temporary Warrant
Certificates at the office or agency of the Corporation, without
charge to the Holder.
2.10 Cancellation.
The Corporation at any time may
deliver Warrant Certificates to the Warrant Agent for cancellation.
The Warrant Agent and no one else shall cancel all Warrant
Certificates surrendered for registration of transfer, exchange,
exercise or cancellation and shall dispose of canceled Warrant
Certificates in accordance with its customary procedures or deliver
canceled Warrant Certificates to the Corporation pursuant to
written direction by an Officer. The Corporation may not issue new
Warrant Certificates to replace Warrant Certificates that have been
exercised or Warrants which the Corporation has purchased or
otherwise acquired. The Warrant Agent shall not countersign Warrant
Certificates to replace canceled Warrant Certificates other than
pursuant to the terms of this Warrant Agreement.
2.11 CUSIP
Numbers.
The Corporation may use
“CUSIP” numbers (if then generally in use) in issuing
the Warrants and, if so, the Warrant Agent shall also use
“CUSIP” numbers in notices to Holders; provided
, however , that any such notice may state that no
representation is made as to the correctness of such numbers either
as printed on the Warrant Certificates or as contained in any
notice and that reliance may be placed only on the other
identification numbers printed on the Warrant Certificates, and any
such notice shall not be affected by any defect in or omission of
such numbers.
Article III
Warrant Agent
3.1 Appointment of Warrant
Agent.
The Corporation hereby appoints the
Warrant Agent to act as agent for the Corporation in accordance
with the provisions of this Warrant Agreement and the Warrant Agent
hereby accepts such appointment.
3.2 Rights and Duties of Warrant
Agent.
(a) Agent for the Corporation
. In acting under this Warrant Agreement and in connection with the
Warrant Certificates, the Warrant Agent is acting solely as agent
of the Corporation and does not assume any obligation or
relationship or agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(b) Counsel . The Warrant
Agent may consult with counsel satisfactory to it (and may require
an Opinion of Counsel before it acts or refrains from acting), and
the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of
such counsel.
(c) Documents . The Warrant
Agent shall be protected and shall incur no liability for or in
respect of any action taken or thing suffered by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
(whether in its original or facsimile form) reasonably believed by
it to be genuine and to have been presented or signed by the proper
parties. In the absence of bad faith on its part, the Warrant Agent
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Warrant Agent and conforming to the
requirements of this Agreement.
(d) No Implied Obligations .
The Warrant Agent shall be obligated to perform only such duties as
are specifically set forth herein and in the Warrant Certificates,
and no implied duties or obligations of the Warrant Agent shall be
read into this Warrant Agreement or the Warrant Certificates
against the Warrant Agent. The Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to involve
it in any expense or liability for which it does not receive
indemnity reasonably satisfactory to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use
by the Corporation of any of the Warrant Certificates countersigned
by the Warrant Agent and delivered by it to the Holders or on
behalf of the Holders pursuant to this Warrant Agreement or for the
application by the Corporation of the proceeds of the Warrants. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Corporation in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a Holder with
respect to such default, including any duty or responsibility to
initiate or attempt to initiate any proceedings at law or
otherwise.
(e) Not Responsible for
Adjustments or Validity of Stock . The Warrant Agent shall not
at any time be under any duty or responsibility to any Holder to
determine whether any
facts exist that may require an adjustment of
the number of shares of Common Stock issuable upon exercise of each
Warrant or the Exercise Price, or with respect to the nature or
extent of any adjustment when made, or with respect to the method
employed, or herein or in any supplemental agreement provided to be
employed, in making the same. The Warrant Agent shall not be
accountable with respect to the validity or value of any shares of
Common Stock or of any securities or property which may at any time
be issued or delivered upon the exercise of any Warrant or upon any
adjustment to the Exercise Price, and it makes no representation
with respect thereto. The Warrant Agent shall not be responsible
for any failure of the Corporation to make any cash payment or to
issue, transfer or deliver any shares of Common Stock or stock
certificates upon the surrender of any Warrant Certificate for the
purpose of exercise or upon any adjustment to the Exercise Price,
or to comply with the covenants set forth in Section 5 of the
Warrant Certificate.
(f) May Act Through Agents .
The Warrant Agent may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Warrant Agent shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(g) No Liability for Interest
. The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the
provisions of this Agreement nor shall it be obligated to segregate
such monies from other monies held by it, except as required by
law. The Warrant Agent shall not be responsible for advancing funds
on behalf of the Issuer.
(h) Not Accountable for
Application of Proceeds . The Warrant Agent shall not be
accountable or under any duty or responsibility for the application
by the Corporation of any proceeds of the issuance of any
Warrants.
(i) Not Liable for Special,
Indirect or Consequential Loss or Damage . In no event will the
Warrant Agent be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost
profits) even if the Warrant Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(j) Force Majeure . In no
event shall the Warrant Agent be responsible or liable for any
failure or delay in the performance of its obligations under this
Agreement arising out of or caused by, directly or indirectly,
forces beyond its reasonable control, including without limitation
strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware)
services.
(k) No Risk of Funds . No
provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in
the exercise of its rights.
3.3 Individual Rights of Warrant
Agent.
The Warrant Agent and any
stockholder, director, officer or employee of the Warrant Agent may
buy, sell or deal in any of the Warrants or other securities of the
Corporation or its Affiliates and may otherwise deal with the
Corporation or its Affiliates with the same rights it would have if
it were not Warrant Agent. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Corporation
or for any other legal entity.
3.4 Warrant Agent’s
Disclaimer.
The Warrant Agent shall not be
responsible for and makes no representation as to the validity or
adequacy of this Warrant Agreement or the Warrant Certificates and
it shall not be responsible for any statement of the Corporation in
this Warrant Agreement or the Warrant Certificates other than the
Warrant Agent’s countersignature.
3.5 Compensation and
Indemnity.
The Corporation agrees to pay to the
Warrant Agent from time to time such compensation for its services
as shall be agreed to in writing from time to time by the
Corporation and the Warrant Agent. The Corporation shall reimburse
the Warrant Agent upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall
include the reasonable compensation, expenses, disbursements and
advances of the Warrant Agent’s agents and counsel. The
Corporation shall indemnify the Warrant Agent and any predecessor
Warrant Agent against, and hold it harmless from, any and all loss,
liability, claim, damage or expense (including reasonable
agents’ and attorneys’ fees and expenses), including
taxes (other than taxes based upon, measured by, or determined by
the income of the Warrant Agent) incurred by it without gross
negligence or bad faith on its part arising out of or in connection
with the acceptance or performance of its duties under this Warrant
Agreement. The Warrant Agent shall notify the Corporation promptly
of any claim for which it may seek indemnity promptly upon
obtaining actual notice thereof; provided , however ,
that any failure so to notify the Corporation shall not relieve the
Corporation of its indemnity obligations hereunder. The Corporation
shall defend the claim and the Warrant Agent shall provide
reasonable cooperation at the Corporation’s expense in the
defense. The Warrant Agent may have separate counsel and the
Corporation shall pay the fees and expenses of such counsel;
provided , however , that the Corporation shall not
be required to pay such fees and expenses if it assumes the Warrant
Agent’s defense and, in the Warrant Agent’s reasonable
judgment, there is no conflict of interest between the Corporation
and the Warrant Agent in connection with such defense. The
Corporation need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Warrant Agent through
the Warrant Agent’s own willful misconduct, gross negligence
or bad faith. The Corporation’s payment obligations pursuant
to this Section 3.5 shall survive the termination of this
Warrant Agreement and the resignation or removal of the Warrant
Agent.
3.6 Successor Warrant
Agent.
(a) The Corporation To Provide
and Maintain Warrant Agent . The Corporation agrees for the
benefit of the Holders that there shall be a Warrant Agent at all
times until all of the Warrants have been exercised or are no
longer exercisable.
(b) Resignation and Removal .
The Warrant Agent may at any time resign by giving written notice
to the Corporation of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided , however , that such date shall not be less
than 30 days after the date on which such notice is given unless
the Corporation otherwise agrees. The Warrant Agent hereunder may
be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Corporation and specifying
such removal and the date when it shall become effective, which
date shall not be less than 30 days after such notice is given
unless the Warrant Agent otherwise agrees. Any removal under this
Section 3.6(b) shall take effect upon the appointment by the
Corporation as hereinafter provided of a successor Warrant Agent
(which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor
Warrant Agent. At any time that the Warrant Agent is also acting as
trustee (the “ Trustee ”) under the indenture
for the New Notes (the “ New Note Indenture ”),
and holders of the New Notes remove the Trustee pursuant to the
terms of the New Note Indenture, the Corporation shall remove the
Warrant Agent pursuant to this Section 3.6(b).
(c) The Corporation To Appoint
Successor . In the event that at any time the Warrant Agent
shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall
commence a voluntary case under the federal bankruptcy laws, as now
or hereafter constituted, or under any other applicable federal or
state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall
make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of
the Warrant Agent in an involuntary case under the Federal
bankruptcy law
