Exhibit 4.3
ATLANTIC EXPRESS TRANSPORTATION
CORP.
Warrants to Purchase
Common Shares
WARRANT AGREEMENT
Dated as of April 22,
2004
THE BANK OF NEW YORK
Warrant Agent
WARRANT AGREEMENT, dated as of April
22, 2004, between Atlantic Express Transportation Corp., a New York
corporation (the “ Company ”), and The Bank of
New York, as warrant agent (the “ Warrant Agent
”).
WHEREAS, the Company proposes to
issue warrants (the “ Warrants ”) to initially
purchase up to an aggregate of 115,000 common shares, par value
$0.01 per share (the “ Common Stock ”), of the
Company (the Common Stock issuable on exercise of the Warrants
being referred to herein as the “ Warrant Shares
”), each Warrant initially representing the right to purchase
one Warrant Share, in connection with the offering (the “
Offering ”) by the Company of (i) 105,000 units (the
“ Fixed Rate Units ”), each Fixed Rate Unit
consisting of (A) $1,000 principal amount at maturity of the 12%
Senior Secured Notes due 2008 of the Company (the “
Fixed Rate Notes ”) and (B) one Warrant, and (ii)
10,000 units (the “ Floating Rate Units ”), each
Floating Rate Unit consisting of (A) $1,000 in aggregate principal
amount of Senior Secured Floating Rate Notes due 2008 of the
Company (the “ Floating Rate Notes ” and
together with the Fixed Rate Notes, the “ Notes
”) and (B) one Warrant.
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 of
Warrant Certificates (as defined) and other matters as provided
herein.
NOW, THEREFORE, in consideration of
the premises and the mutual agreements herein set forth, the
parties hereto agree as follows:
Section 1.
Certain Definitions
.
As used in this Agreement, the
following terms shall have the following respective
meanings:
“ 144A Global Warrant
” means a global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the
Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its
nominee.
“ Affiliate ” of
any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this
definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership
of 10% or more of the Voting Stock of a Person will be deemed to be
control. For purposes of this definition, the terms
“controlling,” “controlled by” and
“under common control with” have correlative
meanings.
“ Applicable Procedures
” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures
of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
“ Board of Directors
” means:
(1)
with respect to a corporation, the
board of directors of the corporation;
(2)
with respect to a partnership, the
Board of Directors of the general partner of the partnership;
and
(3)
with respect to any other Person,
the board or committee of such Person serving a similar
function.
“ Business Day ”
means any day other than a Legal Holiday.
“ Clearstream ”
means Clearstream Banking, S.A.
“ Closing Date ”
means the date hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Depositary ”
means, with respect to the Warrants issuable or issued in whole or
in part in global form, the Person specified in Section 3.3
hereof as the Depositary with respect to the Warrants, and any and
all successors thereto appointed as Depositary hereunder and having
become such pursuant to the applicable provision of the
Indenture.
“ Equity Registration
Rights Agreement ” means the registration rights
agreement, dated as of April 22, 2004, by and among the Company,
the Parent and the Initial Purchaser relating to the Warrant
Shares.
“ Euroclear ”
means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Exercise Price
” means the amount set forth in the form of Warrant
Certificate attached hereto as Exhibit A , as adjusted as
herein provided.
“ Global Warrants
” means, individually and collectively, each of the
Restricted Global Warrants and the Unrestricted Global Warrants,
substantially, in the form of Exhibit A hereto issued in
accordance with Section 3.1(b) and 3.5
hereof.
“ Global Warrant Legend
” means the legend set forth in Section 3.5(g)(ii) ,
which is required to be placed on all Global Warrants issued under
this Warrant Agreement.
“ IAI Global Warrant
” means the Global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the
Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee.
“ Indenture ”
means the indenture, dated as of April 22, 2004, among the Company,
the Guarantors set forth therein and The Bank of New York, as
trustee, relating to the Notes.
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“ Indirect Participant
” means a Person who holds a beneficial interest in a Global
Warrant through a Participant.
“ Initial Purchaser
” means Jefferies & Company, Inc.
“ Institutional Accredited
Investor ” means an institution that is an
“accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, which is not also a
QIB.
“ Legal Holiday ”
means a Saturday, a Sunday or a day on which banking institutions
in the City of New York, the city in which the corporate trust
office of the Warrant Agent is located or at a place of payment are
authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
“ Non-U.S. Person
” means any Person other than a U.S. Person.
“ Officer ”
means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
“ Opinion of Counsel
” means an opinion from legal counsel who is reasonably
acceptable to the Warrant Agent in form and substance reasonably
acceptable to the Warrant Agent. The counsel may be an
employee of or counsel to the Company, any subsidiary of the
Company or the Warrant Agent.
“ Parent ” means
Atlantic Express Transportation Group, Inc., a Delaware
corporation.
“ Participant ”
means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).
“ Person ” means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other
entity.
“ Private Placement
Legend ” means the legend set forth in Section
3.5(g)(i) to be placed on all Warrants issued under this
Warrant Agreement except where otherwise permitted by the
provisions of this Warrant Agreement.
“ QIB ” means a
“qualified institutional buyer” as defined in Rule
144A.
“ Regulation S ”
means Regulation S promulgated under the Securities Act.
“ Regulation S Global
Warrant ” means a global Warrant in the form of
Exhibit A hereto bearing the Global Warrant Legend, the
Private Placement Legend and the Regulation S Legend and deposited
with or on behalf of and registered in the name of the Depositary
or its nominee.
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“ Regulation S Legend
” means the legend set forth in Section 3.5(g)(iv) to
be placed on all Regulation S Global Warrants issued pursuant to
Regulation S.
“ Restricted Definitive
Warrant ” means a Definitive Warrant bearing the Private
Placement Legend.
“ Restricted Global
Warrant ” means a Global Warrant bearing the Private
Placement Legend.
“ Rule 144 ”
means Rule 144 promulgated under the Securities Act.
“ Rule 144A ”
means Rule 144A promulgated under the Securities Act.
“ Rule 903 ”
means Rule 903 promulgated under the Securities Act.
“ Rule 904 ”
means Rule 904 promulgated under the Securities Act.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Separation Date
” means the earliest of (i) 180 days after the date hereof,
(ii) the date on which a registration statement with respect to a
registered exchange offer or a shelf registration statement with
respect to the Notes is declared effective under the Securities
Act, (iii) the date on which any registration statement including
the Warrant Shares is declared effective under the Securities Act,
and (iv) such date as Jefferies & Company, Inc., in its sole
discretion, shall determine.
“ Transfer Restricted
Securities ” shall mean (a) each Warrant and Warrant
Share held by an Affiliate of the Company and (b) each other
Warrant and Warrant Share until the earlier to occur of (i) with
respect to each Warrant Share only, the date on which such Warrant
Share has been effectively registered under the Securities Act and
disposed of in accordance with a Registration Statement covering it
(and the purchasers thereof have been issued a registered freely
tradable security) and (ii) the date on which such Warrant or
Warrant Share is distributed to the public pursuant to Rule 144
under the Securities Act.
“ Trustee ” means
the trustee under the Indenture.
“ Unrestricted Global
Warrant ” means a global Warrant substantially in the
form of Exhibit A attached hereto that bears the Global
Warrant Legend and that has the “Schedule of Exchanges of
Interests in the Global Warrant” attached thereto, and that
is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Warrants that do not bear the
Private Placement Legend.
“ Unrestricted Definitive
Warrant ” means one or more Definitive Warrants that do
not bear and are not required to bear the Private Placement
Legend.
“ U.S. Person ”
means a U.S. person as defined in Rule 902(k) under the Securities
Act.
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“ Warrant Paying Agent
” means an office or agency where Warrants may be presented
for surrender. The Company initially appoints the Warrant
Agent to act as Warrant Paying Agent.
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 Agreement and the
Warrant Agent hereby accepts such appointment.
Section 3.
Issuance of Warrants; Warrant
Certificates .
3.1.
Form and Dating
.
(a)
General . The Warrants shall be substantially in
the form of Exhibit A hereto (each a “ Warrant
Certificate ”). The Warrants may have notations,
legends or endorsements required by law, stock exchange rule or
usage. Each Warrant shall be dated the date of the
countersignature.
The terms and provisions contained
in the Warrants shall constitute, and are hereby expressly made, a
part of this Warrant Agreement. The Company and the Warrant
Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Warrant
conflicts with the express provisions of this Warrant Agreement,
the provisions of this Warrant Agreement shall govern and be
controlling.
(b)
Global Warrants
. Warrants issued in global
form shall be substantially in the form of Exhibit A
attached hereto (including the Global Warrant Legend thereon and
the “Schedule of Exchanges of Interests in the Global
Warrant” attached thereto). Warrants issued in
definitive form shall be substantially in the form of Exhibit
A attached hereto (but without the Global Warrant Legend
thereon and without the “Schedule of Exchanges of Interests
in the Global Warrant” attached thereto). Each Global
Warrant shall represent such of the outstanding Warrants as shall
be specified therein and each shall provide that it shall represent
the number of outstanding Warrants from time to time endorsed
thereon and that the number of outstanding Warrants represented
thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Warrant to reflect the amount of any
increase or decrease in the number of outstanding Warrants
represented thereby shall be made by the Warrant Agent in
accordance with instructions given by the holder thereof as
required by Section 3.5 hereof.
(c)
Euroclear and Clearstream
Procedures Applicable . The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General
Terms and Conditions of Clearstream Banking” and
“Customer Handbook” of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global
Warrant that are held by Participants through Euroclear or
Clearstream.
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3.2.
Execution .
An Officer shall sign the Warrants
on behalf of the Company by manual or facsimile
signature.
If the Officer whose signature is on
a Warrant no longer holds that office at the time a Warrant is
countersigned, the Warrant shall nevertheless be valid.
A Warrant shall not be valid until
countersigned by the manual signature of the Warrant Agent.
The signature shall be conclusive evidence that the Warrant has
been properly issued under this Warrant Agreement.
The Warrant Agent shall, upon a
written order of the Company signed by an Officer (a “
Warrant Countersignature Order ”), countersign
Warrants for original issue up to the number stated in the preamble
hereto.
The Warrant Agent may appoint an
agent acceptable to the Company to countersign Warrants. Such
an agent may countersign Warrants whenever the Warrant Agent may do
so. Each reference in this Warrant Agreement to a
countersignature by the Warrant Agent includes a countersignature
by such agent. Such an agent has the same rights as the
Warrant Agent to deal with the Company or an Affiliate of the
Company.
3.3.
Warrant Registrar and
Depositary .
The Company shall maintain an office
or agency where Warrants may be presented for registration of
transfer or for exchange (“ Warrant Registrar
”). The Warrant Registrar shall keep a register of the
Warrants and of their transfer and exchange. The Company may
appoint one or more co-Warrant Registrars. The term
“Warrant Registrar” includes any co-Warrant
Registrar. The Company may change any Warrant Registrar
without notice to any holder. The Company shall notify the
Warrant Agent in writing of the name and address of any agent not a
party to this Warrant Agreement. If the Company fails to
appoint or maintain another entity as Warrant Registrar, the
Warrant Agent shall act as such. The Company or any of its
subsidiaries may act as Warrant Registrar.
The Company initially appoints the
Warrant Agent to act as the Warrant Registrar with respect to the
Global Warrants.
The Company initially appoints The
Depository Trust Company (“ DTC ”) to act as
Depositary with respect to the Global Warrants.
3.4.
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 all holders of
Warrants. If the Warrant Agent is not the Warrant Registrar,
the Company shall promptly furnish to the Warrant Agent 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 the holders.
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3.5.
Transfer and Exchange
.
(a)
Transfer and Exchange of Global
Warrants . A Global
Warrant may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Warrants
will be exchanged by the Company for Definitive Warrants if (i) the
Company delivers to the Warrant Agent notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such
notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Warrants (in whole but not in
part) should be exchanged for Definitive Warrants and delivers a
written notice to such effect to the Warrant Agent. Upon the
occurrence of either of the preceding events in (i), (ii) above,
Definitive Warrants shall be issued in such names as the Depositary
shall instruct the Warrant Agent. Global Warrants also may be
exchanged or replaced, in whole or in part, as provided in
Sections 3.6 and 3.7 hereof. A Global Warrant
may not be exchanged for another Warrant other than as provided in
this Section 3.5(a) , however, beneficial interests in a
Global Warrant may be transferred and exchanged as provided in
Section 3.5(b) or (c) hereof.
(b)
Transfer and Exchange of
Beneficial Interests in the Global Warrants . The transfer and exchange of beneficial
interests in the Global Warrants shall be effected through the
Depositary, in accordance with the provisions of this Warrant
Agreement and the Applicable Procedures. Beneficial interests
in the Restricted Global Warrants shall be subject to restrictions
on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial
interests in the Global Warrants also shall require compliance with
either subparagraph (i) or (ii) below, as applicable,
as well as one or more of the other following subparagraphs, as
applicable:
(i)
Transfer of Beneficial Interests
in the Same Global Warrant . Beneficial interests in any Restricted
Global Warrant may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted
Global Warrant in accordance with the transfer restrictions set
forth in the Private Placement Legend. Beneficial interests
in any Unrestricted Global Warrant may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Warrant. No written orders or
instructions shall be required to be delivered to the Warrant
Registrar to effect the transfers described in this Section
3.5(b)(i) .
(ii)
All Other Transfers and Exchanges
of Beneficial Interests in Global Warrants . In connection with all transfers and
exchanges of beneficial interests that are not subject to
Section 3.5(b)(i) above, the transferor of such beneficial
interest must deliver to the Warrant Registrar both (A) (1) a
written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Warrant in an amount equal to
the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such
7
increase or both (B) (1) a written
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Warrant in an
amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the
Warrant Registrar containing information regarding the Person in
whose name such Definitive Warrant shall be registered. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Warrants contained in this Agreement
and the Warrants or otherwise applicable under the Securities Act,
the Warrant Agent shall adjust the principal amount of the relevant
Global Warrant(s) pursuant to Section 3.5(g)
hereof.
(iii)
Transfer of Beneficial Interests
to Another Restricted Global Warrant . A beneficial interest in any Restricted
Global Warrant may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Warrant if the transfer complies with the requirements of
Section 3.5(b)(ii) above and the Warrant Registrar receives
the following:
(A)
if the transferee will take delivery
in the form of a beneficial interest in the 144A Global Warrant,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B)
if the transferee will take delivery
in the form of a beneficial interest in the Regulation S Global
Warrant, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item
(2) thereof, if
(C)
if the transferee will take delivery
in the form of a beneficial interest in the IAI Global Warrant,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3) thereof,
if applicable.
(iv)
Transfer and Exchange of
Beneficial Interests in a Restricted Global Warrant for Beneficial
Interests in the Unrestricted Global Warrant
. A beneficial interest in any
Restricted Global Warrant may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Warrant or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Warrant if the
exchange or transfer complies with the requirements of Section
3.5(b)(ii) above and the Warrant Registrar receives the
following:
(A)
if the holder of such beneficial
interest in a Restricted Global Warrant proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted
Global Warrant, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(B)
if the holder of such beneficial
interest in a Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in
the form of a beneficial interest in an Unrestricted
Global
8
Warrant, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in
this subparagraph (iv) , if the Warrant Registrar so
requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Warrant Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
If any such transfer is effected
pursuant to subparagraph (iv) above at a time when an
Unrestricted Global Warrant has not yet been issued, the Company
shall issue and, upon receipt of an Warrant Countersignature Order
in accordance with Section 3.2 hereof, the Warrant Agent
shall countersign one or more Unrestricted Global Warrants in the
number equal to the number of beneficial interests transferred
pursuant to subparagraph (iv) above.
(c)
Transfer and Exchange of
Beneficial Interests for Definitive Warrants
.
(i)
Beneficial Interests in
Restricted Global Warrants to Restricted Definitive
Warrants . If any
holder of a beneficial interest in a Restricted Global Warrant
proposes to exchange such beneficial interest for a Restricted
Definitive Warrant or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted
Definitive Warrant, then, upon receipt by the Warrant Registrar of
the following documentation:
(A)
if the holder of such beneficial
interest in a Restricted Global Warrant proposes to exchange such
beneficial interest for a Restricted Definitive Warrant, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B)
if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1)
thereof;
(C)
if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D)
if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E)
if such beneficial interest is being
transferred to an Institutional Accredited Investor in reliance on
an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B)
9
through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable; or
(F)
if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b)
thereof;
the Warrant Agent shall 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 to be reduced by the
number of Warrants to be represented by the Definitive Warrant
pursuant to Section 3.5(g) hereof, and the Company shall
execute and the Warrant Agent shall countersign and deliver to the
Person designated in the instructions a Definitive Warrant in the
appropriate amount. Any Definitive Warrant issued in exchange
for a beneficial interest in a Restricted Global Warrant pursuant
to this Section 3.5(c) shall be registered in such name or
names as the holder of such beneficial interest shall instruct the
Warrant Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Warrant Agent shall
deliver such Definitive Warrants to the Persons in whose names such
Warrants are so registered. Any Definitive Warrant issued in
exchange for a beneficial interest in a Restricted Global Warrant
pursuant to this Section 3.5(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii)
Beneficial Interests in
Restricted Global Warrants to Unrestricted Definitive
Warrants . A holder
of a beneficial interest in a Restricted Global Warrant may
exchange such beneficial interest for an Unrestricted Definitive
Warrant or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive
Warrant only if the Warrant Registrar receives the
following:
(A)
if the holder of such beneficial
interest in a Restricted Global Warrant proposes to exchange such
beneficial interest for an Unrestricted Definitive Warrant, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof;
or
(B)
if the holder of such beneficial
interest in a Restricted Global Warrant proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Warrant, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case
set forth in this subparagraph (ii) , if the Warrant
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Warrant
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii)
Beneficial Interests in
Unrestricted Global Warrants to Unrestricted Definitive
Warrants . If any
holder of a beneficial interest in an Unrestricted
Global
10
Warrant proposes to exchange such
beneficial interest for a Definitive Warrant or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Warrant, then, upon satisfaction of the
conditions set forth in Section 3.5(b)(ii) hereof, the
Warrant Agent shall cause the amount of the applicable Global
Warrant to be reduced accordingly pursuant to Section 3.5(g)
hereof, and the Company shall execute and the Warrant Agent shall
countersign and deliver to the Person designated in the
instructions a Definitive Warrant in the appropriate principal
amount. Any Definitive Warrant issued in exchange for a
beneficial interest pursuant to this Section 3.5(c)(iii)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Warrant Registrar through instructions
from the Depositary and the Participant or Indirect
Participant. The Warrant Agent shall deliver such Definitive
Warrants to the Persons in whose names such Warrants are so
registered. Any Definitive Warrant issued in exchange for a
beneficial interest pursuant to this Section 3.5(c)(iii)
shall not bear the Private Placement Legend.
(d)
Transfer and Exchange of
Definitive Warrants for Beneficial Interests
.
(i)
Restricted Definitive Warrants to
Beneficial Interests in Restricted Global Warrants
. If any holder of a
Restricted Definitive Warrant proposes to exchange such Warrant for
a beneficial interest in a Restricted Global Warrant or to transfer
such Restricted Definitive Warrants to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global
Warrant, then, upon receipt by the Warrant Registrar of the
following documentation:
(A)
if the holder of such Restricted
Definitive Warrant proposes to exchange such Warrant for a
beneficial interest in a Restricted Global Warrant, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B)
if such Restricted Definitive
Warrant is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(1) thereof;
(C)
if such Restricted Definitive
Warrant is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (2)
thereof;
(D)
if such Restricted Definitive
Warrant is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E)
if such Restricted Definitive
Warrant is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in
subparagraphs (B)
11
through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable; or
(F)
if such Restricted Definitive
Warrant is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b)
thereof;
the Warrant Agent shall cancel the
Restricted Definitive Warrant, increase or cause to be increased
the amount of, in the case of clause (A) above, the
appropriate Restricted Global Warrant, in the case of clause
(B) above, the 144A Global Warrant, in the case of clause
(C) above, the Regulation S Global Warrant, and in all other
cases, the IAI Global Warrant.
(ii)
Restricted Definitive Warrants to
Beneficial Interests in Unrestricted Global Warrants
. A holder of a Restricted
Definitive Warrant may exchange such Warrant for a beneficial
interest in an Unrestricted Global Warrant or transfer such
Restricted Definitive Warrant to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted
Global Warrant only if the Warrant Registrar receives the
following:
(A)
if the holder of such Definitive
Warrants proposes to exchange such Warrants for a beneficial
interest in the Unrestricted Global Warrant, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(B)
if the holder of such Definitive
Warrants proposes to transfer such Warrants to a Person who shall
take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Warrant, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in
this subparagraph (ii) , if the Warrant Registrar so
requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Warrant Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions
of any of the subparagraphs in this Section 3.5(d)(ii) , the
Warrant Agent shall cancel the Definitive Warrants and increase or
cause to be increased the aggregate principal amount of the
Unrestricted Global Warrant.
(iii)
Unrestricted Definitive Warrants
to Beneficial Interests in Unrestricted Global Warrants
. A holder of an Unrestricted
Definitive Warrant may exchange such Warrant for a beneficial
interest in an Unrestricted Global Warrant or transfer such
Definitive Warrants to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Warrant at
any time. Upon receipt of a request for such
12
an exchange or transfer, the Warrant
Agent shall cancel the applicable Unrestricted Definitive Warrant
and increase or cause to be increased the amount of one of the
Unrestricted Global Warrants.
If any such exchange or transfer
from a Definitive Warrant to a beneficial interest is effected
pursuant to subparagraphs (ii)(B) or (iii) above at a
time when an Unrestricted Global Warrant has not yet been issued,
the Company shall issue and, upon receipt of an Warrant
Countersignature Order in accordance with Section 3.2
hereof, the Warrant Agent shall countersign one or more
Unrestricted Global Warrants in the number equal to the number of
beneficial interests of Definitive Warrants so
transferred.
(e)
Transfer and Exchange of
Definitive Warrants for Definitive Warrants . Upon request by a holder of Definitive
Warrants and such holder’s compliance with the provisions of
this Section 3.5(e) , the Warrant Registrar shall register
the transfer or exchange of Definitive Warrants. Prior to
such registration of transfer or exchange, the requesting holder
shall present or surrender to the Warrant Registrar the Definitive
Warrants duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Warrant Registrar duly
executed by such holder or by its attorney, duly authorized in
writing. In addition, the requesting holder shall provide any
additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this
Section 3.5(e) .
(i)
Restricted Definitive Warrants to
Restricted Definitive Warrants . Any Restricted Definitive Warrant may be
transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Warrant if
the Warrant Registrar receives the following:
(A)
if the transfer will be made
pursuant to Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B)
if the transfer will be made
pursuant to Rule 903 or Rule 904, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; or
(C)
if the transfer will be made
pursuant to any other exemption from the registration requirements
of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(ii)
Restricted Definitive Warrants to
Unrestricted Definitive Warrants . Any Restricted Definitive Warrant may be
exchanged by the holder thereof for an Unrestricted Definitive
Warrant or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Warrant if the
Warrant Registrar receives the following:
(A)
if the holder of such Restricted
Definitive Warrants proposes to exchange such Warrants for an
Unrestricted Definitive Warrant, a certificate from
13
such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(B)
if the holder of such Restricted
Definitive Warrants proposes to transfer such Warrants to a Person
who shall take delivery thereof in the form of an Unrestricted
Definitive Warrant, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in
this subparagraph (ii) , if the Warrant Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to
the Warrant Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
(iii)
Unrestricted Definitive Warrants
to Unrestricted Definitive Warrants . A holder of Unrestricted Definitive
Warrants may transfer such Warrants to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Warrant.
Upon receipt of a request to register such a transfer, the Warrant
Registrar shall register the Unrestricted Definitive Warrants
pursuant to the instructions from the holder thereof.
(f)
Legends . The following legends shall appear on
the face of all Global Warrants and Definitive Warrants issued
under this Warrant Agreement unless specifically stated otherwise
in the applicable provisions of this Warrant Agreement.
(i)
Private Placement
Legend .
(A)
Except as permitted by
subparagraph (B) below, each Global Warrant and each
Definitive Warrant (and all Warrants issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the
following form:
“THIS SECURITY AND THE WARRANT
SHARES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY, THE WARRANT SHARES TO BE
ISSUED UPON ITS EXERCISE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY AND THE
WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING
THIS SECURITY AND THE WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE
IN AN OFFSHORE TRANSACTION WITHIN THE
14
MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2) AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY AND THE WARRANT
SHARES TO BE ISSUED UPON ITS EXERCISE, PRIOR TO THE DATE WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY AND THE WARRANT
SHARES TO BE ISSUED UPON ITS EXERCISE FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S, OR TRANSFER AGENT’S,
AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E), OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE OR TRANSFER AGENT.
THE HOLDER OF THIS SECURITY AND THE
WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE, BY ITS ACCEPTANCE
HEREOF, AGREES NOT TO ENGAGE IN ANY HEDGING TRANSACTION UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT. THE HOLDER OF THIS SECURITY AND
THE WARRANT SHARES TO BE ISSUED UPON ITS EXERCISE, BY ITS
ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY OR ANY INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THESE LEGENDS.”
15
(B)
Notwithstanding the foregoing, any
Global Warrant or Definitive Warrant issued pursuant to
subparagraphs (b)(iv) , (c)(ii) , (c)(iii) ,
(d)(ii) , (d)(iii) , (e)(ii) , (e)(iii)
or (f) to this Section 3.5 (and all Warrants issued
in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii)
Global Warrant Legend
. Each Global Warrant shall
bear a legend in substantially the following form:
“THIS GLOBAL WARRANT IS HELD
BY THE DEPOSITARY (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING
THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF
THE WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5(a) OF THE WARRANT
AGREEMENT, (III) THIS GLOBAL WARRANT MAY BE DELIVERED TO THE
WARRANT AGENT FOR CANCELLATION PURSUANT TO SECTION 3.8 OF THE
WARRANT AGREEMENT AND (IV) THIS GLOBAL WARRANT MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.”
(iii)
Unit Legend
. Each Warrant issued prior to
the Separation Date shall bear a legend in substantially the
following form:
“THIS SECURITY WAS INITIALLY
ISSUED AS PART OF AN ISSUANCE OF UNITS (THE “UNITS”),
EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT OF EITHER THE
COMPANY’S 12% SENIOR SECURED NOTES DUE 2008 OR SENIOR SECURED
FLOATING RATE NOTES DUES 2008 (THE “NOTES”) AND ONE
WARRANT TO PURCHASE ONE SHARE OF THE COMPANY’S COMMON STOCK
(THE “WARRANTS”).
PRIOR TO THE EARLIEST TO OCCUR OF
(I) 180 DAYS AFTER THE CLOSING OF THE OFFERING OF THE UNITS, (II)
THE DATE ON WHICH A REGISTRATION STATEMENT FOR A REGISTERED
EXCHANGE OFFER WITH RESPECT TO THE NOTES IS DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (III) THE DATE ON WHICH A REGISTRATION
STATEMENT WITH RESPECT TO THE WARRANT SHARES IS DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, AND (IV) SUCH DATE AS JEFFERIES &
COMPANY, INC. IN ITS SOLE DISCRETION SHALL DETERMINE, THE SECURITY
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY AS A
UNIT.”
(iv)
Regulation S Legend
. Each Warrant that is a
Registrable Security and issued pursuant to Regulation S shall bear
the following legend on the face thereof:
16
“THIS WARRANT AND THE
SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND THE WARRANT MAY NOT BE EXERCISED BY OR
ON BEHALF OF ANY U.S. PERSON UNLESS REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES
ACT ”) OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. IN ORDER TO EXERCISE THIS WARRANT, THE HOLDER MUST
FURNISH TO THE COMPANY AND THE WARRANT AGENT EITHER (A) A WRITTEN
CERTIFICATION THAT IT IS NOT A U.S. PERSON AND THE WARRANT IS NOT
BEING EXERCISED ON BEHALF OF A U.S. PERSON OR (B) A WRITTEN OPINION
OF COUNSEL TO THE EFFECT THAT THE SECURITIES DELIVERED UPON
EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TERMS IN
THIS LEGEND HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.”
(g)
Cancellation and/or Adjustment of
Global Warrants .
At such time as all beneficial interests in a particular Global
Warrant have been exercised or exchanged for Definitive Warrants or
a particular Global Warrant has been exercised, redeemed,
repurchased or canceled in whole and not in part, each such Global
Warrant shall be returned to or retained and canceled by the
Warrant Agent in accordance with Section 3.8 hereof.
At any time prior to such cancellation, if any beneficial interest
in a Global Warrant is exercised or exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial
interest in another Global Warrant or for Definitive Warrants, the
amount of Warrants represented by such Global Warrant shall be
reduced accordingly and an endorsement shall be made on such Global
Warrant by the Warrant Agent or by the Depositary at the direction
of the Warrant Agent to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial
interest in another Global Warrant, such other Global Warrant shall
be increased accordingly and an endorsement shall be made on such
Global Warrant by the Warrant Agent or by the Depositary at the
direction of the Warrant Agent to reflect such increase.
(h)
General Provisions Relating to
Transfers and Exchanges .
(i)
To permit registrations of transfers
and exchanges, the Company shall execute and the Warrant Agent
shall countersign Global Warrants and Definitive Warrants upon the
Company’s order or at the Warrant Registrar’s
request.
(ii)
No service charge shall be made to a
holder of a beneficial interest in a Global Warrant or to a holder
of a Definitive Warrant for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith.
(iii)
All Global Warrants and Definitive
Warrants issued upon any registration of transfer or exchange of
Global Warrants or Definitive Warrants shall be the duly
authorized, executed and issued warrants for Common Stock of the
Company, not subject
17
to any preemptive rights, and
entitled to the same benefits under this Warrant Agreement, as the
Global Warrants or Definitive Warrants surrendered upon such
registration of transfer or exchange.
(iv)
Prior to due presentment for the
registration of a 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 for all
purposes and none of the Warrant Agent, or the Company shall be
affected by notice to the contrary.
(v)
The Warrant Agent shall countersign
Global Warrants and Definitive Warrants in accordance with the
provisions of Section 3.2 hereof.
(i)
Facsimile Submissions to Warrant
Agent . All
certifications, certificates and Opinions of Counsel required to be
submitted to the Warrant Registrar pursuant to this Section
3.5 to effect a registration of transfer or exchange may be
submitted by facsimile.
Notwithstanding anything herein to
the contrary, as to any certificates and/or certifications
delivered to the Warrant Registrar pursuant to this Section
3.5 , the Warrant Registrar’s duties shall be limited to
confirming that any such certifications and certificates delivered
to it are in the form of Exhibits B and C attached
hereto. The Warrant Registrar shall not be responsible for
confirming the truth or accuracy of representations made in any
such certifications or certificates. As to any Opinions of
Counsel delivered pursuant to this Section 3.5 , the Warrant
Registrar may rely upon, and be fully protected in relying upon,
such opinions.
3.6.
Replacement Warrants
.
If any mutilated Warrant is
surrendered to the Warrant Agent or the Company and the Warrant
Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Warrant, the Company shall issue and the
Warrant Agent, upon receipt of a Warrant Countersignature Order,
shall countersign a replacement Warrant if the Warrant
Agent’s requirements are met. If required by the
Warrant Agent or the Company, an indemnity bond must be supplied by
the holder that is sufficient in the judgment of the Warrant Agent
and the Company to protect the Company, the Warrant Agent, any
Agent and any agent for purposes of the countersignature from any
loss that any of them may suffer if a Warrant is replaced.
The Company may charge for its expenses in replacing a
Warrant.
Every replacement Warrant is an
additional warrant of the Company and shall be entitled to all of
the benefits of this Warrant Agreement equally and proportionately
with all other Warrants duly issued hereunder.
3.7.
Temporary Warrants
.
Until certificates representing
Warrants are ready for delivery, the Company may prepare and the
Warrant Agent, upon receipt of a Warrant Countersignature Order,
shall issue temporary Warrants. Temporary Warrants shall be
substantially in the form of certificated Warrants but may have
variations that the Company considers appropriate for temporary
Warrants and as shall be reasonably acceptable to the Warrant
Agent. Without unreasonable delay, the Company
shall
18
prepare and the Warrant Agent shall
countersign definitive Warrants in exchange for temporary
Warrants.
Holders of temporary Warrants shall
be entitled to all of the benefits of this Warrant
Agreement.
3.8.
Cancellation
.
Subject to Section 3.5(g)
hereof, the Company at any time may deliver Warrants to the Warrant
Agent for cancellation. The Warrant Registrar and Warrant
Paying Agent shall forward to the Warrant Agent any Warrants
surrendered to them for registration of transfer, exchange or
exercise. The Warrant Agent and no one else shall cancel all
Warrants surrendered for registration of transfer, exchange,
exercise, replacement or cancellation and shall destroy canceled
Warrants (subject to the record retention requirement of the
Exchange Act). Certification of the destruction of all
canceled Warrants shall be delivered to the Company. The
Company may not issue new Warrants to replace Warrants that have
been exercised or that have been delivered to the Warrant Agent for
cancellation.
Section 4.
Separation of Warrants; Exercise
of Warrants; Terms of Warrants .
(a)
The Notes and Warrants will not be
separately transferable until the Separation Date. Subject to
the terms of this Agreement, each Warrant holder shall have the
right, which may be exercised during the period commencing at the
opening of business on the Separation Date and until 5:00 p.m., New
York City time on April 15, 2008 (the “ Exercise
Period ”), to receive from the Company the number of
fully paid and nonassessable Warrant Shares which the holder may at
the time be entitled to receive on exercise of such Warrants and
payment of the Exercise Price (i) in cash, by wire transfer or by
certified or official bank check payable to the order of the
Company, (ii) by tendering Notes having an Accreted Value (as
defined in the Indenture) at the time of tender equal to the
Exercise Price then in effect, (iii) by tendering Warrants as set
forth below or (iv) any combination of cash, Notes or Warrants.
Each holder may elect, upon exercise of its Warrants during the
Exercise Period, to receive Warrant Shares on a net basis, such
that, without the exchange of any funds, the holder will receive
such number of Warrant Shares as shall equal the product of (A) the
number of Warrant Shares for which such Warrant is exercisable as
of the date of exercise (if the Exercise Price were being paid in
cash) and (B) the Cashless Exercise Ratio. The “
Cashless Exercise Ratio ” shall equal a fraction the
numerator of which is the Market Value (as defined below) per share
of Common Stock minus the Exercise Price per share as of the date
of exercise and the denominator of which is the Market Value per
share on the date of exercise. Each Warrant not exercised
prior to 5:00 p.m., New York City time, on April 15, 2008 (the
“ Expiration Date ”) shall become void and all
rights thereunder and all rights in respect thereof under this
agreement shall cease as of such time. The Warrant Agent
shall have no obligation to calculate the Cashless Exercise
Ratio. No adjustments as to dividends will be made upon
exercise of the Warrants.
The “ Market Value
” per share of Common Stock as of any date shall equal (i) if
Common Stock is primarily traded on a securities exchange, the last
sale price on such securities exchange on the trading day
immediately prior to the date of determination, or if no sale
occurred on such day, the mean between the closing
“bid” and “asked” prices on such day, (ii)
if
19
the principal market for Common
Stock is in the over-the-counter market, the closing sale price on
the trading day immediately prior to the date of the determination,
as published by the National Association of Securities Dealers
Automated Quotation System or similar organization, or if such
price is not so published on such day, the mean between the closing
“bid” and “asked” prices, if available, on
such day, which prices may be obtained from any reputable pricing
service, broker or dealer, and (iii) if neither clause (i)
nor clause (ii) is applicable, the fair market value on the
date of determination of Common Stock as determined in good faith
by the Board of Directors of the Company.
(b)
In order to exercise all or any of
the Warrants represented by a Warrant Certificate, (i) in the case
of a Definitive Warrant, the holder thereof must surrender upon
exercise the Warrant Certificate to the Company at the corporate
trust office of the Warrant Agent set forth in Section 15
hereof, (ii) in the case of a book-entry interest in a Global
Warrant, the exercising Participant whose name appears on a
securities position listing of the Depositary as the holder of such
book-entry interest must comply with the Depositary’s
procedures relating to the exercise of such book-entry interest in
such Global Warrant and (iii) in the case of interests in both
Global Warrants and Definitive Warrants, the holder thereof or the
Participant, as applicable, shall deliver to the Company at the
corporate trust office of the Warrant Agent the form of election to
purchase on the
