EXHIBIT 4.8
TRITON ENERGY CORPORATION
Form of [Common Shares][Preferred Shares]
Warrant Agreement<F1>
THIS WARRANT AGREEMENT dated as of ____________, 199_ between Triton
Energy Corporation, a Texas corporation (the "Company,") and [Warrant Agent],
as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities or Preferred Shares -- [title of Debt Securities or Preferred Shares
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [ ] of the Company's Common Shares, par value $1.00 per
share (the "Common Shares"), [ ] of the Company's preferred shares, no par
value (the "Preferred Shares" collectively, with the Common Shares, the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _______________ (the "Detachable Date")][and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase __________
Warrant Securities. [If Offered Securities and Warrants -- Warrant
Certificates shall be initially issued in units with the Offered Securities and
each Warrant Certificate included in such a unit shall evidence __________
Warrants for each ________ shares of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ____________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be executed on behalf of the
Company by [its Chairman of the Board, the President, any Senior Vice
President, or any Vice President and by the Secretary or any Assistant
Secretary] under its corporate seal reproduced thereon. Such signatures may be
manual or facsimile signatures of such authorized officers and may be imprinted
or otherwise reproduced in the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [If Offered Securities and Warrants are not immediately detachable --
or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate total number not exceeding
____________ Warrant Securities (except as provided in Sections 1.4, 3.1 and
4.2) may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to __________ Warrant Securities and
shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent
shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office
of the Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period from ________,
through and including ______________, the exercise price of each Warrant will
be ______________. During the period from _______________, through and
including ________________, the exercise price of each Warrant will be
________________. Such purchase price of Warrant Securities is referred to in
this Warrant Agreement as the "Warrant Price". No adjustment shall be made for
any dividends on any Warrant Securities issuable upon exercise of any Warrants.
(b) Warrants may be exercised by the holders thereof at any time, at
the Warrant Price then in effect, when the Warrant Securities are registered
pursuant to an effective registration statement under the Securities Act.
Warrants shall in no event be exercisable for the purchase of Warrant
Securities at any time when such Warrant Securities are not registered pursuant
to an effective registration statement under the Securities Act.
The Company shall be required to register the Warrant Securities, or
holders will have such other rights, only as provided in Section 2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities and
of any subsequent lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The registered
holder of any Warrant Certificate may exercise the Warrants evidenced thereby
in whole or in part at any time after ___________ __, ____ upon surrender of
the Warrant Certificate with the form of election to purchase on the reverse
side thereof duly executed, to the Warrant Agent at the principal office of the
Warrant Agent [in the Borough of Manhattan, City and State of New York,]
together with payment of the Warrant Price for each [Common][Preferred] Share
as to which the Warrants are exercised, at or prior to 5:00 P.M. ([New York
time]) on [the earliest of (i) _______ __, ____ (the "Scheduled Share
Conversion Date"), (ii) the Accelerated Share Conversion Date as defined in
Section 7.1 hereof, or (iii) the business day immediately preceding the
Redemption Date as defined in Section 7.1 hereof] [______________ [or such
later date as the Company may designate, by notice to the Warrant Agent and the
holders of the Warrant Certificates mailed to their addresses as set forth in
the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant
not exercised at or before 5 P.M. [New York City time], on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease].
(b) The Warrant Price for each [Common][Preferred] Share pursuant to
the exercise of a Warrant shall initially be ____, shall be subject to
adjustment as provided in Article VII hereof, and shall be payable in lawful
money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of election
to purchase on the reverse side thereof, duly executed, accompanied by payment
of the Warrant Price for the shares to be purchased and an amount equal to any
applicable transfer tax in cash, or by check, bank draft or postal or express
money order payable to the order of the Company, the Warrant Agent shall
thereupon promptly (i) requisition from any transfer agent of the
[Common][Preferred] Shares of the Company certificates for the number of whole
[Common][Preferred] Shares to be purchased and, when appropriate, for the
number of fractional shares to be sold by the Warrant Agent, and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares or Warrants, and (iii)
promptly after receipt of such certificates cause the same to be delivered to
or upon the order of the registered holder of such Warrant Certificate,
registered in such name or names as may be designated by such holder, and ,
when appropriate, after receipt promptly deliver such cash to or upon the order
of the registered holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate shall
exercise less than all the Warrants evidenced thereby, a new Warrant
Certificate evidencing Warrants equivalent to the Warrants remaining
unexercised shall be issued by the Warrant Agent to the registered holder of
such Warrant Certificate or to his duly authorized assigns, subject to the
provisions of Section 2.4 hereof.
(e) The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all monies
received for the purchase of [Common][Preferred] Shares through the exercise of
Warrants.
SECTION 2.3. No Fractional Shares to Be Issued. (a)
Notwithstanding anything to the contrary contained in this Agreement, if the
number of [Common][Preferred] Shares purchasable on the exercise of each
Warrant is not a whole number, the Company shall not be required to issue any
fraction of a [Common][Preferred] Share or to distribute stock certificates
that evidence fractional [Common][Preferred] Shares or to issue a Warrant
Certificate representing a fractional Warrant upon exercise of any Warrants.
If Warrant Certificates evidencing more than one Warrant shall be surrendered
for exercise at one time by the same holder, the number of full shares which
shall be issuable upon exercise thereof shall be computed on the basis of the
aggregate number of Warrants so surrendered. [If any fraction of a
[Common][Preferred] Share would, except for the provisions of this Section 2.3,
be issuable on the exercise of any Warrant or Warrants, the Company shall
purchase such fraction for an amount in cash equal to such fraction of the then
current market price of a [Common][Preferred] Share. The Warrant holders, by
their acceptance of the Warrant Certificates, expressly waive their right to
receive any fraction of a [Common][Preferred] Share or a stock certificate
representing a fraction of a [Common] [Preferred] Share.]
(b) If the number of shares purchasable upon the exercise of each
Warrant is adjusted pursuant to Section 3.1(l), the Company shall nonetheless
not be required to issue fractions of shares upon exercise of the Warrants or
to distribute share certificates which evidence fractional shares, nor shall
the Company be required to make any cash adjustment in respect of a fractional
interest in a share, but the fractional interest to which any person is
entitled shall be sold in the manner set forth in subsection (c) of this
Section 2.3 by the Warrant Agent, acting as agent for the person entitled to
such fractional interest, except as otherwise provided in such subsection.
(c) The Warrant Agent shall remit to such person the proceeds of the
sale of any such fractional interest sold by it as such agent. Fractional
interests shall be non-transferable except by or to the Warrant Agent acting as
herein authorized. The Warrant Agent may sell fractional interests on the
basis of market prices of the Warrants or [Common][Preferred] Shares as
determined by the Warrant Agent in its sole discretion. In lieu of making an
actual sale of a fractional interest, the Company may authorize the Warrant
Agent to value fractional interests without actual sale on the basis of the
current market price of the Warrants or [Common][Preferred] Shares as
determined by the Warrant Agent in its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise.
The Company covenants that it will at all times reserve and keep available out
of its authorized but unissued Warrant Securities or its authorized and issued
Warrant securities held in its Treasury, solely for the purpose of issue upon
exercise of Warrants, the full number of Warrant Securities, if any, then
issuable if all outstanding Warrants then exercisable were to be exercised.
The Company covenants that, subject to payment of the Warrant Price, all
[Common][Preferred] Shares which shall be so issuable shall be duly and validly
issued and fully paid and nonassessable.
[The Company hereby authorizes and directs its current and future
transfer agents for the [Common][Preferred] Shares and for any shares of the
Company's capital stock issuable upon the exercise of any of the Warrants at
all times to reserve such number of authorized shares as shall be requisite for
such purpose. The Company will supply such transfer agents with duly executed
stock certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in this Article II.]
The Company covenants that if any [Common][Preferred] Shares required
to be reserved for purposes of exercise of Warrants require, under any federal
or state law or rule or regulation of any national securities exchange,
registration with or approval of any governmental authority, or listing on any
national securities exchange before such shares may be issued upon exercise,
the Company will in good faith and as expeditiously as possible endeavor to
cause such shares to be duly registered, approved or listed on the relevant
national securities exchange, as the case may be; provided, however, that in no
event shall such [Common][Preferred] Shares be issued, and the Company is
hereby authorized to suspend the exercise of all Warrants, for the period
during which such registration, approval or listing is required but not in
effect.
The Company further covenants and agrees that it will pay when due
and payable any and all Federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of the Warrant Certificates
or of any [Common][Preferred] Shares upon the exercise or conversion of
Warrants. The Company shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer involved in the transfer or
delivery of Warrant Certificates or the issuance or conversion or delivery of
Certificates for [Common][Preferred] Shares in a name other than that of the
registered holder of the Warrant Certificate evidencing Warrants surrendered
for exercise or to issue or deliver any certificates for [Common][Preferred]
Shares upon the exercise or conversion of any Warrants until any such tax shall
have been paid (any such tax being payable by the holder of such Warrant
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name any
certificate for [Common][Preferred] Shares is issued upon the exercise of
Warrants shall for all purposes be deemed to have become the holder of record
of the [Common][Preferred] Shares represented thereby on, and such certificate
shall be dated, the date upon which the Warrant Certificate evidencing such
Warrants was duly surrendered and payment of the Warrant Price (and any
applicable transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the [Common][Preferred] Share
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be
dated, the next succeeding business day on which the [Common][Preferred] Share
transfer books of the Company are open. Prior to the exercise of the Warrants
evidenced thereby, the holder of a [Preferred][Common] Share Warrant
Certificate shall not be entitled to any rights of a shareholder of the Company
with respect to shares for which the Warrants shall be exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company, except as provided
herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement relating to the rights of
holders of Warrant Certificates, in the event that, at any time after the date
hereof, there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then the Company shall give notice by first-class
mail to each holder of an outstanding Warrant at such holder's address as it
appears on the Warrant Register at the earliest practicable time (and, in any
event, not less than twenty days before any date set for definitive action), of
the date on which such dissolution, liquidation or winding up shall take place,
as the case may be. Such notice shall also specify the date as of which the
holders of record of [Common][Preferred] Shares or other securities, if any,
underlying the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such dissolution,
liquidation or winding up, as the case may be, on which date each holder of
outstanding Warrants shall receive cash or other property (taking into account
the Warrant Price then if effect) which it would have been entitled to receive
had the Warrants been exercisable and exercised immediately prior to such
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Warrant Securities in shares of its Common or Preferred
Shares, (ii) subdivide the outstanding Warrant Securities into a greater number
of shares, (iii) combine the outstanding Warrant Securities into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the [Common][Preferred] Shares (including any such
reclassification in connection with a consolidation, merger or share exchange
in which the Company is the continuing corporation), the Warrant Price in
effect at such time shall be adjusted so that the holder of any Warrant
thereafter surrendered for exercise shall be entitled to receive the number of
[Common][Preferred] shares which he would have owned or have been entitled to
receive after the happening of any of the events described above had such
Warrant been exercised immediately prior to the record date in the case of a
dividend or the effective date in the case of a subdivision or combination. An
adjustment made pursuant to this subparagraph (a) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subparagraph (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of [Common][Preferred] Shares entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase [Common] [Preferred] Shares at a price per share less than the current
market price per [Common] [Preferred] Share (as defined for purposes of this
subparagraph (b) in subparagraph (e) below), at the record date for the
determination of stockholders entitled to receive such rights or warrants, the
Warrant Price in effect after such record date shall be determined by
multiplying such Warrant Price by a fraction, the numerator of which shall be
the number of [Common] [Preferred] Shares outstanding at the close of business
on the record date for issuance of such rights or warrants plus the number of
[Common][Preferred] Shares which the aggregate offering price of the total
number of [Common][Preferred] Shares so offered would purchase at such current
market price, and the denominator of which shall be the number of
[Common][Preferred] Shares outstanding at the close of business on the record
date for issuance of such rights or warrants plus the number of additional
[Common][Preferred] Shares receivable upon exercise of such rights or warrants.
Such adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subparagraph (h) below, after such record date. In case such subscription
price may be paid in a consideration part or all of which shall be in a form
other than cash, the value of such consideration shall be as determined by the
Board of Directors of the Company, whose determination shall be conclusive, and
described in a statement filed with the Warrant Agent. [Common][Preferred]
Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Warrant Price shall again be
adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall distribute to all holders of
[Common][Preferred] Shares (including any such distribution made in connection
with a consolidation, merger or share exchange in which the Company is the
continuing corporation) any shares of capital stock of the Company (other than
[Common][Preferred] Shares) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings of the
Company or from any surplus legally available for dividends under the laws of
the state of incorporation of the Company and dividends payable in
[Common][Preferred] Shares) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being hereinafter in this
subparagraph (c) called the "Securities"), then, in each such case, unless the
Company elects to reserve such Securities (or, at the option of the Company,
pay cash as provided below) for distribution to the holders of the Warrants
upon the exercise of the Warrants so that any such holder exercising Warrants
will receive such exercise, in addition to the [Common][Preferred] Shares to
which such holder is entitled, the amount and kind of such Securities which
such holder would have received if such holder had, immediately prior to the
record date for the distribution of the Securities, exercised its Warrants into
Warrant Securities (or, at the option of the Company, a sum equal to the value
thereof at the time of distribution as determined by the Company's Board of
Directors in its sole discretion), the Warrant Price shall be adjusted so that
the same shall equal the price determined by multiplying the Warrant Price in
effect immediately prior to the date of such distribution by a fraction the
numerator of which shall be the current market price per share (as defined for
purposes of this subparagraph (c) in subparagraph (e) below) of the
[Common][Preferred] Shares on the record date mentioned above less the then
fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of the Securities so
distributed allocable to one [Common][Preferred] Share, and the denominator of
which shall be the current market price per share (determined as provided in
subparagraph (e) below) of the [Common][Preferred] Share. Such adjustment
shall become effective immediately prior to the opening of business on the day
following the record date for the determination of shareholders entitled to
receive such distribution. In the event that such distribution is not so made,
the Warrant Price shall again be adjusted to be the Warrant Price which would
then be in effect if such date fixed for the determination of shareholders
entitled to receive such distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the number of
shares of Warrant Securities into which a Warrant is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Warrant Securities in the form of
any right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith be
adjusted to equal the Warrant Price that would have applied had such right or
warrant never been declared, distributed or issued.
(e) For the purposes of any computation under subparagraph (b)
above, the current market price per [Common][Preferred] Share or of any other
security (herein collectively referred to as a "security") at the date herein
specified shall be deemed to be the average of the reported last sales prices
for the [thirty consecutive Trading Days (as defined below) commencing forty-
five Trading Days (as defined below) before the date in question] [ten
consecutive Trading Days (as defined below) selected by the Company commencing
not less than twenty nor more than thirty days before the date in question].
For the purpose of any computation under subparagraph (c) above, the current
market price per security on any date shall be deemed to be the average of the
reported last sales prices for the ten consecutive Trading Days before the date
in question. The reported last sales price for each day (whether for purposes
of subparagraph (b) or subparagraph (c)) shall be the reported last sales
price, regular way, or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if such security is
not listed or admitted to trading on the New York Stock Exchange at such time,
on the principal national securities exchange on which such security is listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such
day shall not have been reported through NASDAQ, the average of the bid and
asked prices for such date as furnished by any New York Stock Exchange member
firm regularly making a market in such security selected for such purpose by
the Board of Directors of the Company or a committee thereof or, if no such
quotations are available, the fair market value of such security as determined
by a New York Stock Exchange member firm regularly making a market in the
[Common][Preferred] Shares selected for such purpose by the Board of Directors
of the Company or a committee thereof. As used herein, the term "Trading Day"
with respect to a security means (x) if such security is listed or admitted for
trading on the New York Stock Exchange or another national securities exchange,
a day on which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such security is quoted on the National
Market System of the NASDAQ, a day on which trades may be made on such National
Market System or (z) otherwise, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least [1%] in such
Warrant Price; provided, however, that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
III shall be made to the nearest cent or to the nearest .01 of a share, as the
case may be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (f), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(g) Whenever the Warrant Price is adjusted as herein provided, the
Company shall file with the transfer agent a certificate, signed by [the
Chairman of the Board, the President, any Senior Vice President, or any Vice
President] of the Company, setting forth the Warrant Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness
of such adjustment; provided, however, that the failure of the Company to file
such officers' certificate shall not invalidate any corporate action by the
Company.
(h) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (y) issuing to the
holder of any Warrant converted after such record date and before the
occurrence of such event the additional shares of Warrant Securities or other
assets issuable upon such exercise by reason of the adjustment required by such
event over and above the Warrant Securities or other assets issuable upon such
exercise before giving effect to such adjustment and (z) paying to such holder
any amount of cash in lieu of any fractional share; provided, however, that the
Company shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided in Article
III, the Company shall cause to be mailed to each holder of Warrants at its
then registered address by first-class mail, postage prepaid, a notice of such
adjustment of the Warrant Price setting forth such adjusted Exercise Price and
the effective date of such adjusted Exercise Price; provided, however, that the
failure of the Company to give such notice shall not invalidate any corporate
action by the Company.
(j) In the event that at any time, as a result of an adjustment made
pursuant to Section 3.1, the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other
than [Common] [Preferred] Shares, thereafter the number of such other shares so
receivable upon exercise of any Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the shares contained in Section 3.1(a) through
(c), inclusive and the provisions of Sections 2.3, 2.4 and 2.5 with respect to
the [Common] [Preferred] Shares shall apply on like terms to any such other
shares.
(k) All Warrants originally issued by the Company subsequent to any
adjustment made to the Warrant Price hereunder shall evidence the right to
purchase, at the adjusted Warrant Price, the number of [Common] [Preferred]
Shares purchasable from time to time hereunder upon exercise of the Warrants,
all subject to further adjustment as provided herein.
(l) Unless the Company shall have exercised its election as provided
in Section 3.1(m), upon each adjustment of the Warrant Price as a result of the
calculations made in Section 3.1(a),(b) or (c), each Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Warrant Price, that number of shares
(calculated to the nearest hundredth) obtained by (i) multiplying the number of
shares covered by a Warrant immediately prior to this adjustment of the number
of shares by the Warrant Price in effect immediately prior to such adjustment
of the Warrant Price and (ii) dividing the product so obtained by the Warrant
Price in effect immediately after such adjustment of the Warrant Price.
(m) The Company may elect on or after the date of any adjustment of
the Warrant Price to adjust the number of Warrants, in substitution for any
adjustment in the number of [Common] [Preferred] Shares purchasable upon the
exercise of a Warrant as provided in Section 3.2. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be
exercisable for one [Common] [Preferred] Share. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the Warrant
Price in effect prior to adjustment of the Warrant Price by the Warrant Price
in effect after adjustment of the Warrant Price. The Company shall make a
public announcement of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Warrant Price is adjusted or any day thereafter, but shall be at least 10
days later than the date of the public announcement. Upon each adjustment of
the number of Warrants pursuant to this subsection (l) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrant Certificates on such record date Warrant Certificates evidencing,
subject to Section 2.4, the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Warrant Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Warrant Certificates evidencing all the Warrants to which such holders shall be
entitled after such adjustment. Warrant Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Warrant Price) and
shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(n) Irrespective of any adjustment or change in the Warrant Price or
the number of [Common] [Preferred] Shares issuable upon the exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued may
continue to express the Warrant Price per share and the number of shares which
were expressed upon the initial Warrant Certificates issued hereunder.
(o) Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those adjustments required by this Article III, as it in its sole
discretion shall determine to be advisable in order that any consolidation or
subdivision of the [Common] [Preferred] Shares, issuance wholly for cash of any
[Common] [Preferred] Shares at less than the current market price, issuance
wholly for cash of [Common] [Preferred] Shares or securities which by their
terms are convertible into or exchangeable for Common Shares, stock dividend,
issuance of rights, options or warrants referred to hereinabove in this Article
III, or other event referred to hereinabove in this Article III treated for
Federal income tax purposes as a dividend of stock or stock rights, hereinafter
made by the Company to its common shareholders, shall not be taxable to the
recipients.
[SECTION 3.2. Adjustment of [Common] [Preferred] Shares Purchasable
Upon Exercise of Warrants. The number of Warrant Securities that may be
purchased upon exercise of a Warrant shall be determined by multiplying the
number of [Common] [Preferred] Shares which would otherwise (but for the
provisions of this Section 3.2) be issuable upon such exercise by a fraction of
which (a) the numerator is _________ and (b) the denominator is $_________
minus deductions made from (and/or plus additions to) the Warrant Price
pursuant to Sections 3.1(a) or (c) hereof. The Warrant Price per [Common]
[Preferred] Share shall be adjusted and readjusted from time to time as
provided in this Article III and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof is required by this
Article III.]
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state
the same Warrant Price and the same number of [Common] [Preferred] Shares as
are stated in the Warrant Certificates initially issued pursuant to this
Agreement. The Company, however, may at any time in its sole discretion (which
shall be conclusive) make any change in the form of Warrant Certificate that it
may deem appropriate and that does not affect the substance thereof, and any
Warrant Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to vote at, or to
receive notice of, any meeting of shareholders of the Company; the consent of
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company, and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance. In case any of the following shall occur while
any Warrants are outstanding: [(a) any reclassification or change of the
outstanding shares of Warrant Securities (other than a change in par value, or
from par value to no par value, or as a result of a subdivision or combination
of the Warrant Securities);] or (b) any consolidation, merger, share exchange
or combination of the Company with or into another corporation (other than a
merger or consolidation of the Company in which the Company is the continuing
corporation and which does not result in any reclassification or change of
outstanding [Common][Preferred] Shares) as a result of which holders of Warrant
Securities shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Warrant
Securities; or (c) any sale or conveyance of the property or assets of the
Company as, or substantially as, an entirety to any other entity as a result of
which holders of Warrant Securities shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Warrant Securities; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the holders of the Warrants
then outstanding shall have the right at any time thereafter, upon exercise of
such Warrants, to receive the kind and amount of shares of stock and other
securities and property or assets receivable upon such reclassification,
change, consolidation, merger, share exchange, combination, sale or conveyance
[(or at the option of the Company, a sum equal to the value thereof at the time
of the distribution as determined by the Board of Directors in its sole
discretion)] as would be received by a holder of the number of shares of
Warrant Securities issuable upon exercise of such Warrant immediately prior to
such reclassification, change, consolidation, share exchange, merger, sale or
conveyance, and, in the case of a consolidation, merger, share exchange, sale
or conveyance the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such reclassification, change, consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, merger, share
exchange, consolidation, sale or conveyance complies with the provisions of
this Section 4.4.
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates, [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security on the register of the Offered
Securities shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or ________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part;
provided that such other Warrant Certificates evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. The Warrant
Agent shall keep, at its corporate trust office [and at ________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an authorized
officer of the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange or
registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date, and] [P]rior to due presentment of a Warrant Certificate for registration
for registration of transfer, the Company, the Warrant Agent and all other
persons may treat the holder of a Warrant Certificate as the owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints [Warrant
Agent] as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth; and [Warrant Agent] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written 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.
(d) 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 reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any
time received by it pursuant to any of the provisions of this Agreement or of
the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this 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, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company 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 of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.2 hereof, to make any demand upon
the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company 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 Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, 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. The obligation of the Company under Section 6.2(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case 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 laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant Agent or of its
property or affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall be a party ,or any corporation to which
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]
[SECTION 7.1. Redemption. The Company may, at its option, at any
time from and after __________ __, ____ and at or prior to 5:00 p.m., [New York
time], on the earlier of the Scheduled Share Conversion Date or the Accelerated
Share Conversion Date (as defined in Section 7.2, redeem all but not less than
all of the then outstanding Warrants at a redemption price of $__ per Warrant,
subject to adjustment pursuant to the provisions of Section 7.3(b). Such
price, as the same may be from time to time adjusted, is hereinafter referred
to as the "Redemption Price." If the Company should desire to exercise such
right to redeem all of the then outstanding Warrants, it will give notice of
such redemption to the holders thereof as follows:
Notice of such redemption to holders of Warrants shall be mailed to
all such holders not less than 30 nor more than 90 days prior to the date fixed
for redemption to their last addresses as they appear upon the registry books
of the Warrant Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will specify the date fixed for redemption
("Redemption Date") and the Redemption Price. The notice will state that
payment of the Redemption Price will be made at the office or agency of the
Warrant Agent or at the option of the Company at a specified office of the
Company in the City of Dallas, State of Texas, upon presentation and surrender
of such Warrants, and will also state that the right to exercise the Warrants
will terminate at the close of business on the business day immediately
preceding the Redemption Date.
On or before the Redemption Date, the Company shall deposit with the
Warrant Agent funds in form satisfactory to the Warrant Agent sufficient to
redeem the then outstanding Warrants at the Redemption Price.]
[SECTION 7.2. Accelerated Share Conversion Date. If the price of a
[Common] [Preferred] Share (as determined pursuant to the second sentence of
Section 3.1(e)) for each of 10 consecutive trading days is at least $___,
subject to adjustment pursuant to the provisions of Section 7.3(b) (such price,
as the same may from time to time be adjusted, is hereinafter referred to as
the "Acceleration Price"), then the Company may, at its option, accelerate the
date on which the Warrants shall be converted into [Common] [Preferred] Shares
and cease to be exercisable. If the Company shall so accelerate such date, it
shall give notice of such acceleration within 30 days after the end of any such
10 consecutive trading day period to the holders of Warrants as follows:
Notice of such acceleration shall be mailed to all holders of
Warrants not less than 30 nor more than 90 days prior to the date specified in
such notice as the date on which the Warrants shall be converted into [Common]
[Preferred] Shares and cease to be exercisable (the "Accelerated Share
Conversion Date") to their last addresses as they appear upon the registry
books of the Warrant Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of acceleration will specify the Accelerated Share Conversion
Date and the Acceleration Price.]
[SECTION 7.3. Conversion of Warrants into Shares. (a) To the
extent that any Warrant Certificates remain outstanding at the expiration of
the period during which the Warrants are exercisable, as set forth in Section
2.3(a) hereof, the unexercised Warrants represented thereby shall be converted
automatically into [Common] [Preferred] Shares at the rate of [ ] [Common]
[Preferred] Share[s] for each [ ] Warrants. The registered holders of such
Warrant Certificates shall be deemed to have become holders of record of such
[Common] [Preferred] Share or Shares as of the date of such conversion. If the
number of [Common] [Preferred] Shares purchasable upon the exercise of each
Warrant is adjusted pursuant to Section 3.2, the rate at which [Common]
[Preferred] Shares are issued upon such conversion of unexercised Warrants at
the expiration of the period during which the Warrants are exercisable shall be
adjusted in order that the total number of [Common] [Preferred] Shares issued
for each [ ] unexercised Warrants at such expiration equals the number of
such shares purchasable upon the exercise of each Warrant after such
adjustment. Notwithstanding the foregoing provisions of this Section 7.3, no
fractional [Common] [Preferred] Shares shall be issuable upon such conversion.
In lieu of fractional shares, there shall be paid to the registered holders of
Warrant Certificates at the time such Warrant Certificates are so converted an
amount in cash equal to the same fraction of the current market value of a
[Common] [Preferred] Share. For the purposes of this Section 7.3, the current
market value of a [Common] [Preferred] Share shall be the closing price of a
[Common] [Preferred] Share (as determined pursuant to the second sentence of
Section 3.1(e)) for the trading day immediately prior to the date of such
conversion. After such conversion of outstanding and unexercised Warrants into
[Common] [Preferred] Shares, the holder of any Warrant Certificate representing
such Warrants shall surrender the same to the Warrant Agent (or, if this
Agreement shall have been terminated, to the transfer agent for [Common]
[Preferred] Shares) and such holder shall be entitled, upon such surrender, to
receive in exchange therefor a certificate or certificates representing the
number of whole [Common] [Preferred] Shares into which such Warrants shall have
been converted as aforesaid and payments as aforesaid for any fractional share
represented thereby (without interest). Unless and until so surrendered, such
Warrant Certificates shall be deemed for all purposes (subject to the further
provisions of this paragraph) to evidence the ownership of the whole number of
[Common] [Preferred] Shares into which the Warrants evidenced thereby have been
so converted. Unless and until any such Warrant Certificate shall be so
surrendered, dividends or distributions payable to holders of record of
[Common] [Preferred] Shares shall not be paid to the holder of any such Warrant
Certificate not surrendered, but there shall be paid to the record holder of
such Warrant Certificate, with respect to the [Common] [Preferred] Shares
issued upon such conversion therefor, (i) upon such surrender the amount of the
dividends or distributions which shall theretofore have become payable thereon,
but without interest, and (ii) after such surrender, the amount of any dividend
or distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
(b) Upon each adjustment of the Warrant Price of the Warrants, the
Redemption Price and the Acceleration Price in effect immediately prior to the
adjustment shall be adjusted to be a price equal to the product of the
Redemption Price or the Acceleration Price, as the case may be, in effect
immediately prior to the adjustment of the Warrant Price multiplied by a
fraction the numerator of which is the Warrant Price which was in effect
immediately after the adjustment of the Warrant Price and the denominator of
which is the Warrant Price immediately prior to such adjustment.]
SECTION 7.4. Notice of Proposed Actions. In case the Company shall
propose (a) to pay any dividend payable in stock of any class to the holders of
its Common [or Preferred] Shares or to make any other distribution to the
holders of its Common [or Preferred] Shares (other than a cash dividend), or
(b) to offer to the holders of its Common Shares rights or warrants to
subscribe for or to purchase any additional Common Shares or shares of stock of
any class or any other securities, rights or options, or (c) to effect any
reclassification of its Common [or Preferred] Shares (other than a
reclassification involving only the subdivision or combination of outstanding
Common [or Preferred] Shares), or (d) to effect any consolidation, merger,
share exchange or sale, transfer or other disposition of all or substantially
all of the property, assets or business of the Company, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Warrant, in accordance with Section
8.2, a notice of such proposed action, which shall specify the record date for
the purposes of such stock dividend, distribution or rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of Common [or Preferred] Shares,
if any such date is to be fixed, and such notice shall be so given in the case
of any action covered by clause (a) or (b) above at least ten days prior to the
record date for determining holders of the Common [or Preferred] Shares for
purposes of such action, and in the case of any such action, at least ten days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Common [or Preferred] Shares, whichever
shall be the earlier. The failure to give notice required by this Section 7.4
or any defect therein shall not affect the legality or validity of the action
taken by the Company or the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the Warrant
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the registered holders of the Warrant Certificates or the Warrant
holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Warrant Agent in accordance
with Section 6.3 or in any other manner which the Company may deem to be
necessary or desirable and which will not materially and adversely affect the
interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that decreases or increases the Warrant
Price, shortens the period of time during which the Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights of the
holders or reduces the percentage of outstanding Warrants the consent of the
holders of which is required for modification or amendment of this Agreement or
the Warrant Certificates, may be made without the consent of each Warrant
holder affected thereby.
SECTION 8.2. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 8.3. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to [Warrant
Agent], _____________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Triton Energy Corporation, 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206, Attention: ________________ (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
SECTION 8.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.5. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and
the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant Securities
issued upon such exercise, a Prospectus. The Warrant Agent shall not, by
reason of any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 8.7. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any legal or equitable right,
remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 8.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 8.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, Triton Energy Corporation and [Warrant Agent]
have caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
TRITON ENERGY CORPORATION
By _________________________
Title:
Attest:
_________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_________________________
Title:
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
immediately exercisable. evidence by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY] TIME ON _______________ OR EARLIER IF NOTICE
OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [
or registered assigns is the registered] owner of the above indicated
number of Warrants, each Warrant entitling such owner [if Offered Securities
with Warrants which are not immediately detachable -- , subject to the
registered owner qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5 P.M., [New York City]
time, on _______________ and] on or before [the earliest of (i)] 5 P.M. [New
York City] time on __, __, [(ii) the Accelerated Share Conversion Date as
defined in the Warrant Agreement (referred to herein) or (iii) the business day
immediately prior to the Redemption Date as defined in the Warrant Agreement,]
[Common Shares, par value $1.00 per share] [Preferred Shares, no par value]
(the "Warrant Securities"), of Triton Energy Corporation (the "Company"),
issued and to be issued under the Warrant Agreement (as hereinafter defined),
on the following basis: during the period from _______________, through and
including _______________ the exercise price of each Warrant will be $________
per share; during the period from _______________, through and including
_______________, the exercise price of each Warrant will be $________ per share
(the "Warrant Price"). No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant.
The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full in lawful money of the United States of America [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] in immediately available funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ____________] currently
at the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to ____________
(the "Detachable Date"), the registered owner of the Company's [title of
Offered Securities] to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 5.1 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form in
denominations of ____________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of
the Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at ____________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ____________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
The Warrants evidenced by this Certificate may be redeemed by the
Company at its option at any time from and after [ ] but before they are
converted into [Common] [Preferred] Shares, at a redemption price of [ ] per
Warrant subject to adjustment, in accordance with the terms of the Warrant
Agreement.
If the price of a [Common] [Preferred] Share (determined in
accordance with the Warrant Agreement) for each of 10 consecutive trading days
is at least [ ] (subject to adjustment as provided in the Warrant Agreement),
the Company may, at its option, accelerate the date on which the Warrants shall
be converted into [Common] [Preferred] Shares and cease to be exercisable.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be converted into [ ] [Common] [Preferred] Share
for each [ ] unexercised Warrants hereunder (subject to adjustments as provided
in the Warrant Agreement). After such conversion of outstanding Warrants
represented by this Warrant Certificate into [Common] [Preferred] Shares, the
holder of this Warrant Certificate shall surrender the same to the Warrant
Agent (or, if the Warrant Agreement shall have been terminated, to the transfer
agent for [Common] [Preferred] Shares) and the holder shall be entitled, upon
such surrender, to receive in exchange therefor a certificate or certificates
representing the number of whole [Common] [Preferred] Shares into which such
Warrants shall have been converted as aforesaid. Unless and until so
surrendered, this Warrant Certificate shall be deemed for all purposes (subject
to the further provisions of this paragraph) to evidence the ownership of the
whole number of [Common] [Preferred] Shares into which the Warrants evidenced
thereby have been so converted. Unless and until this Warrant Certificate
shall be so surrendered, dividends or distributions payable to holders of
record of Common Shares shall not be paid to the holder of this Warrant
Certificate, but there shall be paid to the record holder of this Warrant
Certificate, with respect to the [Common] [Preferred] Shares issued upon such
conversion therefor, (i) upon such surrender, the amount of the dividends or
distributions which shall theretofore have become payable thereon, but without
interest, and (ii) after such surrender, the amount of any dividend or
distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Shares or of any other securities of the Company which may at any
time be issuable on the exercise or conversion thereof, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or
any right to vote upon any mater submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issue of stock, reclassification of stock, change of par
value, consolidation, share exchange, merger, conveyance, or otherwise) or,
except as provided in the Warrant Agreement, to receive notice of meetings, or
to receive dividends or subscription rights or otherwise, until the Warrant or
Warrants evidenced by this Warrant Certificate shall have been exercised or
converted as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________
TRITON ENERGY CORPORATION
By: __________________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. __________ [or
____________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
below. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase ____________
[Common Shares] [Preferred Shares] of American Express Company (the "Warrant
Securities") and represents that he has tendered payment for such Warrant
Securities in Dollars [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds to the order of Triton Energy Corporation, c/o [insert name and
address of Warrant Agent], in the amount of ____________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________
Signature Guaranteed Signature_____________________
_____________________________ (Signature must conform in
all respects to name of
holder as specified on face
of this Warrant Certificate
and must bear a signature
guarantee by a bank, trust
company or member broker of
the New York, Midwest or
Pacific Stock Exchanges)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificated evidencing unexercised Warrants -- complete as
appropriate.]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Midwest or Pacific Stock
Exchange)
Signature Guaranteed
___________________________________
=======================================================================
TRITON ENERGY CORPORATION
and
[WARRANT AGENT]
As Warrant Agent
________________
Warrant Agreement -- [Common Shares]
[Preferred Shares]*
Dated as of , 199_
_________________
=======================================================================
* Options Represented By Bracketed Or Blank Sections Herein Shall Be
Determined In Conformity With The Applicable Prospectus Supplement Or
Supplements
TABLE OF CONTENTS
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . 1
SECTION 1.1. Issuance of Warrants . . . . . . . . . . . . . . . 1
SECTION 1.2. Execution and Delivery of Warrant
Certificates . . . . . . . . . . . . . . . 1
SECTION 1.3. Issuance of Warrant Certificates . . . . . . . . . 2
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . . 3
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . . . 3
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2. Duration and Exercise of Warrants . . . . . . . . . 3
SECTION 2.3. No Fractional Shares to Be Issued . . . . . . . . . 4
SECTION 2.4. Covenant to Reserve Shares for
Issuance on Exercise . . . . . . . . . . . 5
SECTION 2.5. Share Record Date . . . . . . . . . . . . . . . . . 6
SECTION 2.6. Rights Upon Dissolution or
Liquidation . . . . . . . . . . . . . . . . 6
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE . . . . . . . . 7
SECTION 3.1. Adjustment of Warrant Price . . . . . . . . . . . . 7
[SECTION 3.2. Adjustment of [Common] [Preferred]
Shares Purchasable Upon
Exercise of Warrants . . . . . . . . . . . 11
SECTION 3.3. Statements on Warrants . . . . . . . . . . . . . . 12
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . 12
SECTION 4.1. No Rights as Warrant Securityholder
Conferred by Warrants or
Warrant Certificates . . . . . . . . . . . 12
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed
Warrant Certificates . . . . . . . . . . . 12
SECTION 4.3. Holder of Warrant Certificate May
Enforce Rights . . . . . . . . . . . . . . 13
SECTION 4.4. Reclassification, Consolidation,
Merger, Share Exchange, Sale
or Conveyance . . . . . . . . . . . . . . . 13
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES . . . . . . . . . . . . 14
SECTION 5.1. Exchange and Transfer of Warrant
Certificates . . . . . . . . . . . . . . . 14
SECTION 5.2. Treatment of Holders of Warrant
Certificates . . . . . . . . . . . . . . . 15
SECTION 5.3. Cancellation of Warrant Certificates . . . . . . . 15
ARTICLE VI.
CONCERNING THE WARRANT AGENT . . . . . . . . . . . 15
SECTION 6.1. Warrant Agent . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . . . . 15
(a) Compensation and Indemnification . . . . . . . . . 15
(b) Agent for the Company . . . . . . . . . . . . . . . 16
(c) Counsel . . . . . . . . . . . . . . . . . . . . . . 16
(d) Documents . . . . . . . . . . . . . . . . . . . . . 16
(e) Certain Transactions . . . . . . . . . . . . . . . 16
(f) No Liability for Interest . . . . . . . . . . . . . 16
(g) No Liability for Invalidity . . . . . . . . . . . . 16
(h) No Responsibility for Representations . . . . . . . 16
(i) No Implied Obligations . . . . . . . . . . . . . . 16
SECTION 6.3. Resignation and Appointment of
Successor . . . . . . . . . . . . . . . . . 17
ARTICLE VII.
REDEMPTION; ACCELERATED SHARE CONVERSION
DATE AND CONVERSION OF WARRANTS INTO SHARES . . . . . . . 18
[SECTION 7.1. Redemption . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.2. Accelerated Share Conversion Date . . . . . . . . . 18
SECTION 7.3. Conversion of Warrants into Shares . . . . . . . . 19
SECTION 7.4. Notice of Proposed Actions . . . . . . . . . . . . 20
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . . . 20
SECTION 8.1. Amendment . . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.2. Notices and Demands to the Company
and Warrant Agent . . . . . . . . . . . . . 21
SECTION 8.3. Addresses . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.4. Applicable Law . . . . . . . . . . . . . . . . . . 21
SECTION 8.5. Delivery of Prospectus . . . . . . . . . . . . . . 21
SECTION 8.6. Obtaining of Governmental Approvals . . . . . . . . 21
SECTION 8.7. Persons Having Rights under Warrant
Agreement . . . . . . . . . . . . . . . . . 22
SECTION 8.8. Headings . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.9. Counterparts . . . . . . . . . . . . . . . . . . . 22
SECTION 8.10. Inspection of Agreement . . . . . . . . . . . . . . 22
____________________
[FN]
<F1> Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.