EXHIBIT 4.5
EXECUTION COPY
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WARRANT AGREEMENT
Dated as of July 8, 1999
between
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
and
THE BANK OF NEW YORK
as Warrant Agent
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WARRANT AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1. Defined Terms............................................................. 2
1.1 Certain Definitions........................................................... 2
1.2 Rules of Construction......................................................... 5
SECTION 2. Issuance, Form, Execution, Delivery and Registration of Warrant
Certificates.......................................................................... 6
2.1 Issuance of Warrants.......................................................... 6
2.2 Execution of Warrant Certificates............................................. 6
2.3 Countersignature and Delivery................................................. 6
2.4 Form of Warrant Certificates.................................................. 7
2.5 Restrictive Legends........................................................... 8
2.6 Temporary Warrant Certificates................................................ 9
2.7 Separation of Warrants and Notes.............................................. 10
2.8 Registration, Registration of Transfers and Exchanges......................... 10
2.9 Book-Entry Provisions for Global Warrants..................................... 11
2.10 Special Transfer Provisions.................................................. 13
2.11 Offices for Exercise, etc.................................................... 14
2.12 Cancellation................................................................. 14
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates........... 15
SECTION 3. Terms of Warrants; Exercise of Warrants.................................... 15
3.1 Exercise Period............................................................... 15
3.2 Manner of Exercise............................................................ 16
3.3 Issuance of Warrant Shares.................................................... 17
3.4 Fractional Warrant Shares..................................................... 17
3.5 Sufficient Authorized Share Capital: Listing.................................. 17
3.6 Payment of Taxes.............................................................. 18
SECTION 4. Adjustment of Exercise Price and Number of Warrant Shares Issuable......... 18
4.1 Adjustments................................................................... 18
4.2 Superseding Adjustment........................................................ 22
4.3 Minimum Adjustment............................................................ 23
4.4 Notice of Adjustment.......................................................... 23
4.5 Notice of Certain Transactions................................................ 23
4.6 Adjustment to Warrant Certificate............................................. 24
4.7 Challenge to Good Faith Determination......................................... 24
4.8 Treasury Stock................................................................ 24
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Page
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SECTION 5. Holders' Rights............................................................ 24
5.1 Registration Rights.......................................................... 24
5.2 Piggyback Registration Right.................................................. 26
SECTION 6. Warrant Agent.............................................................. 27
6.1 Appointment of Warrant Agent.................................................. 28
6.2 Rights and Duties of Warrant Agent............................................ 28
6.3 Individual Rights of Warrant Agent............................................ 30
6.4 Warrant Agent's Disclaimer.................................................... 30
6.5 Compensation and Indemnity.................................................... 30
6.6 Successor Warrant Agent....................................................... 31
SECTION 7. Miscellaneous.............................................................. 32
7.1 Reports....................................................................... 32
7.2 Notices to the Company and Warrant Agent...................................... 33
7.3 Supplements and Amendments.................................................... 34
7.4 Severability.................................................................. 34
7.5 Successors.................................................................... 35
7.6 Termination................................................................... 35
7.7 Governing Law................................................................. 35
7.8 Submission to Jurisdiction; Appointment of Agent for Service; Waiver.......... 35
7.9 Benefits of this Agreement.................................................... 36
7.10 Counterparts................................................................. 36
7.11 Table of Contents............................................................ 36
7.12 Survival of Provisions....................................................... 36
Exhibits
EXHIBIT A - Form of Face of Global Warrant Certificate
EXHIBIT B - Form of Face of Definitive Warrant Certificate
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WARRANT AGREEMENT dated as of July 8, 1999 (the "Agreement") between
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Cybernet Internet Services International, Inc. a Delaware corporation (the
"Company"), and The Bank of New York, as warrant agent (in such capacity, the
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"Warrant Agent").
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W I T N E S S E T H :
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WHEREAS, the Company entered into a purchase agreement dated July 1,
1999 (the "Purchase Agreement") with Lehman Brothers International (Europe) and
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Morgan Stanley & Co. International Limited (the "Initial Purchasers") pursuant
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to which the Company has agreed to sell to the Initial Purchasers 150,000 units
(the "Units") consisting of $1,000 principal amount of its 14% Senior Notes due
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2009 (the "Notes") to be issued under an indenture dated as of July 8, 1999 (the
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"Indenture") by and between the Company and the The Bank of New York, as Trustee
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(in such capacity, the "Trustee"), and one warrant (the "Warrants") to purchase
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30.2310693 shares of the Company, par value $0.001 per share (the "Shares"); and
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WHEREAS, prior to the separation of the Notes from the Warrants issued
as part of the Units as described herein, the Units shall be issued pursuant to
the Unit Agreement, dated as of June 8, 1999 (the "Unit Agreement"), by and
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among the Company, the Warrant Agent, the Trustee and The Bank of New York, as
unit agent (the "Unit Agent"); and
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WHEREAS, the Warrants and the Notes shall not be separately
transferable until on or after the Separation Date (as defined below); and
WHEREAS, the Company desires the Warrant Agent to assist the Company
in connection with the issuance, exchange, cancellation, replacement and
exercise of the Warrants, and in this Agreement wishes to set forth, among other
things, the terms and conditions on which the Warrants may be issued, exchanged,
canceled, replaced and exercised; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as defined below) and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Company, the Warrant Agent and the Holders (as
defined below), the parties hereto agree as follows:
SECTION 1. Defined Terms.
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1.1 Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Affiliate" means, as applied to any Person, any other Person directly
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or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
is defined to mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Bankruptcy Law" means Title 11, U.S. Code or any similar United
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States Federal, state or foreign law for the relief of creditors.
"Board" means the Board of Directors of the Company.
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"Business Day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in New York City and Munich, Germany are
authorized or required by law to close.
"Cashless Exercise" has the meaning specified in Section 3.2 hereof.
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"Cashless Exercise Ratio" means a fraction, the numerator of which is
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the excess of the Current Market Value (as defined below) per Share on the
Exercise Date over the Exercise Price per Share as of the Exercise Date and
the denominator of which is the Current Market Value per Share on the
Exercise Date.
"Cedel" means Cedel Bank, societe anonyme.
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"Combination" has the meaning specified in Section 4.1(e) hereof.
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"Commission" means the Securities and Exchange Commission.
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"Current Market Value" per Share or any other security at any date,
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means (i) if the security is not registered under the Exchange Act, the
fair market value of the security (without any discount for lack of
liquidity, the amount of such security offered to be purchased or the fact
that such securities may represent a minority interest in a private company
or a company under the control of another Person) as determined in good
faith by the Board and certified in a board resolution that is delivered to
the Warrant Agent, and determined to be fair, from a financial point of
view, to the holders of such security or another security exercisable for
such security, by an Independent Financial Expert (as set forth in such
Independent Financial Expert's written fairness opinion); or (ii) if the
security is registered under the Exchange Act, the average of the last
reported sale price
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of the security on the principal exchange on which it trades (or the
equivalent in an over-the-counter market) for each Business Day (as defined
herein) during the period commencing 15 Business Days before such date and
ending on the date one day prior to such date, or if the security has been
registered under the Exchange Act for less than 15 consecutive Business
Days before such date, the average of the daily closing bid prices (or such
equivalent) for all of the Business Days before such date for which daily
closing bid prices are available (provided, however, that if the closing
bid price is not determinable for at least 10 Business Days in such period,
the "Current Market Value" of the security shall be determined as if the
security were not registered under the Exchange Act). The Company shall pay
the fees and expenses of any Independent Financial Expert in the
determination of Current Market Value.
"Definitive Warrants" means Warrants in definitive registered form
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substantially in the form of Exhibit B.
"Definitive Warrant Certificates" has the meaning specified in Section
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2.6.
"DTC" or "Depositary" means The Depository Trust Company or its
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successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
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(or any successor act), and the rules and regulations promulgated
thereunder.
"Exercise Date" means the date on which a Warrant is exercised by the
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Holder thereof.
"Exercisability Date" means the earlier to occur of (i) the six month
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anniversary of the Issue Date, provided that if the Company conducts a
Public Offering prior to such date, such date shall be extended to the date
which is 90 days after the date of such Public Offering and (ii) any
Exercise Event.
"Exercise Event" means the date of the earliest of (i) the closing of
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a Public Offering by the Company but only in respect of Warrants required
to be exercised in order to permit the holder thereof to sell Warrant
Shares in a Public Offering as permitted pursuant to the Registration
Rights Agreement, (b) a consolidation, merger or purchase of assets
involving the Company, or (c) the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company.
"Exercise Price" means the purchase price per Warrant Share to be paid
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upon the exercise of each Warrant, which price shall be $22.278 per Warrant
Share as adjusted in accordance with the terms hereof.
"Expiration Date" means July 1, 2009.
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"Holder" means the registered holder of a Warrant.
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"Independent Financial Expert" means an internationally recognized
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investment bank that does not (and the directors, executive officers and 5%
stockholders of which do not) have a direct or indirect financial interest
in the Company or any of its subsidiaries or Affiliates, which has not been
for at least five years, and at the time it is called upon to give
independent financial advice to the Company is not (and none of its
directors, executive officers or 5% stockholders is), a promoter, director,
or officer of the Company or any of its subsidiaries or Affiliates. The
Independent Financial Expert may be compensated and indemnified by the
Company for opinions or services it provides as an Independent Financial
Expert.
"Issue Date" means July 8, 1999, the date on which the Warrants are
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first issued.
"Majority Holders" means the Holders of a majority of the then
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outstanding Warrants.
"Offering" means the offering of the Units, the Notes and the
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Warrants.
"Officer" means the principal executive officer, the principal
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financial officer, the treasurer or the principal accounting officer of the
Company.
"Officers' Certificate" means a certificate signed on behalf of the
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Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company.
"Person" means any individual, corporation, partnership, joint
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venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Public Offering" means an underwritten primary public offering of
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common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
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specified in Rule 144A under the Securities Act.
"Registration Rights Agreement " means that certain Registration
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Rights Agreement, dated as of July 8, 1999, among the Company and the
Initial Purchasers.
"Resale Restriction Termination Date" has the meaning specified in
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Section 2.5 hereof.
"Right" has the meaning specified in Section 4.1(h) hereof.
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"Rule 144A" means Rule 144A (including any successor regulation
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thereto) under the Securities Act, as it may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
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"Separation Date" has the meaning specified in Section 2.7 hereof.
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"Shares" has the meaning specified in the Preamble hereto.
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"Successor Company" has the meaning specified in Section 4.1(e)
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hereof.
"Unit" means the $1,000 principal amount of Notes and one Warrant that
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comprise each Unit.
"Unit Certificates" means the certificates evidencing the Units to be
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delivered pursuant to the Purchase Agreement.
"Warrant Agent" means The Bank of New York, or the successor or
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successors of such Warrant Agent appointed in accordance with the terms
hereof.
"Warrant Certificates" means the certificates evidencing the Warrants
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to be delivered pursuant to this Agreement, substantially in the form of
Exhibits A and B hereto.
"Warrant Register" has the meaning specified in Section 2.8 hereof.
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"Warrant Registrar" has the meaning specified in Section 2.8 hereof.
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"Warrant Shares" has the meaning specified in Section 2.1 hereof.
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"Warrants" shall mean the Warrants issued hereunder and all warrants
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issued upon transfer, division or combination of, or in substitution for,
any thereof. All Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of Shares for which they may
be exercised.
1.2 Rules of Construction. Unless the text otherwise required.
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted
accounting principles ("U.S. GAAP") as in effect from time to time;
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(iii) "or" is not exclusive;
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(iv) "including" means including, without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
SECTION 2. Issuance, Form, Execution, Delivery and Registration of
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Warrant Certificates.
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2.1 Issuance of Warrants. Warrants comprising part of the Units
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shall be originally issued in connection with the issuance of the Units and such
Warrants shall not be separately transferable from the Notes until on or after
the Separation Date as provided in Section 2.7 hereof.
Each Warrant Certificate shall evidence the number of Warrants
specified therein, and each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company (and the Company shall issue and sell to such Holder of the Warrant)
30.2310693 Shares of the Company (the shares purchasable upon exercise of a
Warrant being hereinafter referred to as the "Warrant Shares," subject to
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adjustment as provided in Section 4 hereof).
2.2 Execution of Warrant Certificates. The Warrant Certificates
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shall be executed on behalf of the Company by two Officers of the Company. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity or
enforceability of any Warrant Certificate that has been duly countersigned and
delivered by the Warrant Agent.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificate so signed shall be countersigned and delivered by the Warrant Agent
or disposed of by the Company, such Warrant Certificate nevertheless may be
countersigned and delivered or disposed of as though the Person who signed such
Warrant Certificate had not 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 and
delivery of this Agreement any such Person was not such an officer.
2.3 Countersignature and Delivery. Subject to the immediately
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following paragraph, Warrant Certificates shall be countersigned by manual
signature and dated the date of countersignature by the Warrant Agent and shall
not be valid for any purpose unless so countersigned and dated. The Warrant
Certificates shall be numbered and shall be registered in the Warrant Register.
Upon the receipt by the Warrant Agent of a written order of the
Company set forth in an Officers' Certificate, specifying the amount of Warrants
to be countersigned, whether the
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Warrants are to be Global Warrants or Definitive Warrants, whether the Warrants
are to bear the Private Placement Legend set forth in Section 2.5, the date of
such Warrants and such other information as the Warrant Agent may reasonably
request, the Warrant Agent is authorized to countersign the Warrant Certificates
upon receipt from the Company at any time and from time to time of the Warrant
Certificates, duly executed as provided in Section 2.2 hereof, and deliver them,
without any further action by the Company. Such countersignature shall be by a
duly authorized signatory of the Warrant Agent (although it shall not be
necessary for the same signatory to sign all Warrant Certificates).
In case any authorized signatory of the Warrant Agent who shall have
countersigned any of the Warrant Certificates shall cease to be such authorized
signatory before the Warrant Certificate shall be disposed of by the Company,
such Warrant Certificate nevertheless may be delivered or disposed of as though
the Person who countersigned such Warrant Certificate had not ceased to be such
authorized signatory of the Warrant Agent; and any Warrant Certificate may be
countersigned on behalf of the Warrant Agent by such Persons as, at the actual
time of countersignature of such Warrant Certificates, shall be the duly
authorized signatories of the Warrant Agent, although at the time of the
execution and delivery of this Agreement any such Person is not such an
authorized signatory.
The Warrant Agent's countersignature on all Warrant Certificates shall
be in substantially the form set forth in Exhibit A and B hereto.
2.4 Form of Warrant Certificates. Warrants offered and sold to
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Qualified Institutional Buyers in reliance upon Rule 144A in the United States
of America ("Rule 144A Warrants") shall be issued on the Issue Date in the form
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of one or more global Warrants in registered global form ("Global Warrants").
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The Company may also elect, in its sole discretion, to create additional forms
of global Warrants containing transfer and other restrictions which comply with
applicable U.S. securities and other laws from time to time, although the
Company is not obligated to do so.
Global Warrants shall be deposited with the Warrant Agent, as
custodian for, and registered in the name of DTC or its nominee, duly executed
by the Company and countersigned by the Warrant Agent as provided herein;
provided that, until such time as the Warrants Separate from the Notes, the
Global Warrants shall be registered in the name of DTC or its nominee and shall
be represented by a Global Unit deposited with the Unit Agent as custodian for
and registered in the name of DTC or its nominee.
The Warrant Certificates evidencing Definitive Warrants to be
delivered pursuant to this Agreement shall be substantially in the form set
forth in Exhibit B attached hereto. The Warrant Certificates evidencing the
Global Warrants to be delivered pursuant to this Agreement shall be
substantially in the form set forth in Exhibit A attached hereto. Such Global
Warrants shall represent such of the outstanding Warrants as shall be specified
therein and each shall provide that it shall represent the aggregate amount of
outstanding Warrants from time to time endorsed thereon and that the aggregate
amount of outstanding Warrants represented thereby may from time to time be
decreased or increased, as appropriate. Any endorsement of a Global
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Warrant to reflect the amount of any increase or decrease in the amount of
outstanding Warrants represented thereby shall be made by the Warrant Agent and
DTC in accordance with instructions given by the Holder thereof. Except as
provided in Section 2.9(b), owners of beneficial interests in a Global Warrant
will not be entitled to receive delivery of Definitive Warrants.
2.5 Restrictive Legends.
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Warrants shall bear the following legend (the "Private Placement
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Legend") on the face thereof:
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR
THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR (D) WITH THE CONSENT OF THE COMPANY, PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHICH THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT (I) IN CONSENTING TO ANY SUCH OFFER, SALE
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OR TRANSFER PURSUANT TO CLAUSE (D), THE COMPANY SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER, TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND
(II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
The Global Warrants shall also bear the following legend on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
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REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 2.9 AND 2.10 OF THE WARRANT AGREEMENT DATED AS OF JULY 8,
1999.
2.6 Temporary Warrant Certificates. Pending the preparation of
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definitive warrant certificates ("Definitive Warrant Certificates"), the Company
may execute, and the Warrant Agent shall countersign and deliver, temporary
Warrant Certificates, which are printed, lithographed, typewritten or otherwise
produced, substantially of the tenor of the Definitive Warrant Certificates 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 any
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office or agency maintained by the Company for that purpose pursuant to Section
2.11 hereof. Subject to the provisions of Section 3.6 hereof, such exchange
shall be 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 countersign and deliver in exchange therefor, one or more
Definitive Warrant Certificates representing in the aggregate a like number of
Warrants. Until so exchanged, the Holder of a temporary Warrant Certificate
shall in all respects be entitled to the same benefits under this Agreement as a
Holder of a Definitive Warrant Certificate.
2.7 Separation of Warrants and Notes. The Notes and Warrants will
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not be separately transferable until the Separation Date. The "Separation Date"
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will be the earliest to occur of (1) the commencement of an exchange offer or
the effectiveness of a shelf registration statement, each relating to the Notes,
and (2) such other date as the Initial Purchasers shall jointly determine in
their sole discretion (such earliest date, the "Separation Date"). The
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surrender of a Unit Certificate for separate Warrant and Note certificates is
herein referred to as a "Separation" and the related Warrants being referred to
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as "Separated." Upon Separation of the Warrants and the Notes, (i) with respect
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to any Global Warrants, such Global Warrants shall be transferred to and
deposited with the Warrant Agent, as custodian for, and registered in the name
of DTC or its nominee, duly executed by the Company and countersigned by the
Warrant Agent as provided herein and (ii) with respect to any Definitive
Warrants, the Company shall cause Definitive Warrant Certificates to be prepared
and issued to registered holders of Units upon surrender of Unit Certificates.
2.8 Registration, Registration of Transfers and Exchanges. The
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Company will keep, at the office or agency maintained by the Company for such
purpose, a register or registers in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of, and registration of transfer and exchange of, Warrants as provided herein.
Each person designated by the Company from time to time as a Person authorized
to register the transfer and exchange of the Warrants is hereinafter called,
individually and collectively, the "Warrant Registrar." The Company hereby
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initially appoints the Warrant Agent as Warrant Registrar. Upon written notice
to the Warrant Agent and any acting Warrant Registrar, the Company may appoint a
successor Warrant Registrar for such purposes.
The Company will at all times designate one Person (who may be the
Company and who need not be a Warrant Registrar) to act as repository of a
master list of names and addresses of the Holders of Warrants (the "Warrant
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Register"). The Warrant Agent will act as such repository unless and until some
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other Person is, by written notice from the Company to the Warrant Agent and the
Warrant Registrar, designated by the Company to act as such. In the event the
Warrant Registrar is not the repository, the Company shall cause the Warrant
Registrar to furnish to such repository, on a current basis, such information as
to all registrations of transfer and exchanges effected by the Warrant
Registrar, as may be necessary to enable such repository to maintain the Warrant
Register on as current a basis as is practicable.
When Warrants are presented to the Warrant Agent with a request to
register the transfer of the Warrants or exchange Warrants for an equal number
of Warrants of other
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authorized denominations, the Warrant Agent shall register the transfer or make
the exchange as requested if the requirements under this Warrant Agreement as
set forth herein for such transactions are met; provided, however, that the
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Warrants presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or by his attorney, duly authorized in writing.
Furthermore, any Holder of a Global Warrant shall, by acceptance of
such Global Warrant, agree that transfers of beneficial interests in such Global
Warrant may be effected only through a book-entry system maintained by the
Holder of such Global Warrant (or its agent), and that ownership of a beneficial
interest in the Warrant shall be required to be reflected in a book entry.
All Warrants issued upon any registration of transfer or exchange of
Warrants shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrants surrendered upon such registration of transfer or exchange.
2.9 Book-Entry Provisions for Global Warrants.
-----------------------------------------
(a) Registered Owner of Global Warrants. Each Global Warrant
-----------------------------------
initially shall (i) be registered in the name of DTC for such global Warrant or
the nominee of the Depositary, (ii) be delivered to the Warrant Agent as
custodian for such Depositary and (iii) bear legends as set forth in Section
2.5.
Members of, or participants in, DTC ("Agent Members") shall have no
-------------
rights under this Agreement with respect to any Global Warrant held on their
behalf by DTC, or the Warrant Agent as its custodian, or under the Global
Warrant, and DTC may be treated by the Company, the Warrant Agent and any agent
of the Company or the Warrant Agent as the absolute owner of such Global Warrant
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Warrant Agent or any agent of the Company or the
Warrant Agent from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Warrant.
(b) Transfers of Global Warrants. Transfers of a Global Warrant
----------------------------
shall be limited to transfers of such Global Warrant in whole, but not in part,
to DTC, its successors or their respective nominees. Interests of beneficial
owners in a Global Warrant may be transferred in accordance with the rules and
procedures of DTC and the provisions of Section 2.9. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Warrants in definitive form, in exchange for their beneficial interests in a
Global Warrant upon written request in accordance with DTC's and the Warrant
Registrar's procedures. In addition, Definitive Warrants shall be transferred
to all beneficial owners in exchange for their beneficial interests in a Global
Warrant if (i) DTC (A) notifies the Company that it is unwilling or unable to
continue as depository for the Global Warrant and the Company thereupon fails to
appoint a successor
11
depository upon 90 days or (B) has ceased to be a clearing agency registered
under the Exchange Act and the Company thereupon fails to appoint a successor
depository upon 90 days notice, (ii) upon the continuance of an Event of Default
under the Indenture or (iii) the Company, at its option, notifies the Warrant
Agent in writing that it elects to cause issuance of Definitive Warrants. In
addition, beneficial interests in a Global Warrant may be exchanged for
Definitive Warrants upon request but only upon at least 20 days' prior written
notice given to the Company by or on behalf of DTC in accordance with customary
procedures. In all cases, Definitive Warrants delivered in exchange for any
Global Warrants or beneficial interest therein will be registered in names, and
issued in any approved denominations, requested by or on behalf of DTC (in
accordance with its customary procedures) and will bear the Private Placement
Legend set forth in Section 2.5, if applicable, unless the Company determines
otherwise in compliance with applicable law.
(c) In connection with any transfer of a portion of the beneficial
interest in a Global Warrant pursuant to subsection (b) of this Section 2.9 to
beneficial owners who are required to hold Definitive Warrants, the Warrant
Registrar shall reflect on its books and records the date and a decrease in the
amount of such Global Warrant in an amount equal to the amount of the beneficial
interest in the Global Warrant to be transferred, and the Company shall execute,
and the Warrant Agent shall countersign and deliver to each beneficial owner
identified in writing by DTC, one or more Definitive Warrants of like tenor and
amount.
(d) In connection with the transfer of an entire Global Warrant to
beneficial owners pursuant to subsection (b) of this Section 2.9, such Global
Warrant shall be deemed to be surrendered to the Warrant Agent for cancellation,
and the Company shall execute, and the Warrant Agent shall countersign and
deliver, to each beneficial owner identified in writing by DTC in exchange for
its beneficial interest in such Global Warrant, an equal aggregate amount of
Definitive Warrants of authorized denominations.
(e) Any Definitive Warrant delivered in exchange for an interest in a
Global Warrant pursuant to subsection (c) or subsection (d) of this Section
shall, except as otherwise provided herein, bear the Private Placement Legend
set forth in Section 2.5, if applicable.
(f) The Holder of a Global Warrant may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Agreement or the Warrants.
The Warrant Registrar shall retain copies of all letters, notices and
other written communications received pursuant to this Section 2.9. The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Warrant Registrar.
12
2.10 Special Transfer Provisions.
---------------------------
(a) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Warrants not bearing the Private Placement Legend, the Warrant
Registrar shall deliver Warrants that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Warrants bearing the Private
Placement Legend, the Warrant Registrar shall deliver only Warrants that bear
the Private Placement Legend unless there is delivered to the Warrant Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the Warrant
Agent to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(b) General. The provisions hereof shall be qualified in their
-------
entirety by any applicable securities laws of the United States and any other
applicable jurisdiction and by the procedures of any applicable clearing agency,
in each case as in effect from time to time, and all such laws and clearing
procedures shall be deemed to be incorporated herein by reference. By its
acceptance of any Warrant bearing the Private Placement Legend, each Holder of
such a Warrant acknowledges the restrictions on transfer of such Warrant set
forth in this Agreement and in the Private Placement Legend and agrees that it
will transfer such Warrant only as provided in this Agreement. The Warrant
Agent shall not register a transfer of any Warrant Certificate unless such
transfer complies with the restrictions on transfer of such Warrant Certificate
set forth in this Warrant Agreement.
(c) Resale Restriction Termination Date. The Company shall deliver
-----------------------------------
to the Warrant Agent an Officers' Certificate setting forth the dates on which
the Resale Restriction Termination Date terminates.
(d) No Obligation of the Warrant Agent. (i) The Warrant Agent shall
----------------------------------
have no responsibility or obligation to any beneficial owner of a Global
Warrant, a member of, or a participant in DTC or other Person with respect to
any ownership interest in the Warrants, with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof or with
respect to the delivery to any participant, member, beneficial owner or other
Person (other than DTC) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such Warrants. All notices
and communications with respect to the Warrants shall be given to the Holders
and all payments in respect of the Warrants represented by the Global Warrant
shall be made by wire transfer of immediately available funds to the accounts
specified by the Holder of the Global Warrant. With respect to Definitive
Warrants, the Company will make all payments by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The rights of beneficial owners in any Global Warrant shall be
exercised only through DTC subject to the applicable rules and procedures of
DTC. The Warrant Agent may rely and shall be fully protected and indemnified
pursuant to Section 6.5 in relying upon information furnished by DTC with
respect to any beneficial owners, its members and participants.
(ii) The Warrant Agent shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Agreement or under applicable law with respect to any transfer of any
interest in any Warrant (including without
13
limitation any transfers between or among DTC participants, members or
beneficial owners in any Global Warrant) other than to require delivery of such
certificates and other documentation of evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Agreement, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
2.11 Offices for Exercise, etc. So long as any of the Warrants remain
--------------------------
outstanding, the Company will designate and maintain in the Borough of
Manhattan, The City of New York: (a) an office or agency where the Warrant
Certificates may be presented for exercise, (b) an office or agency where the
Warrant Certificates may be presented for registration of transfer and for
exchange (including the exchange of temporary Warrant Certificates for
Definitive Warrant Certificates pursuant to Section 2.6 hereof), and (c) an
office or agency where notices and demands to or upon the Company in respect of
the Warrants or of this Agreement may be served. The Company may from time to
time change or rescind such designation, as it may deem desirable or expedient;
provided, however, that an office or agency shall at all times be maintained in
- -------- -------
the Borough of Manhattan, The City of New York, as provided in the first
sentence of this Section. In addition to such office or offices or agency or
agencies, the Company may from time to time designate and maintain one or more
additional offices or agencies within or outside The City of New York, where
Warrant Certificates may be presented for exercise or for registration of
transfer or for exchange, and the Company may from time to time change or
rescind such designation, as it may deem desirable or expedient. The Company
will give to the Warrant Agent and the Warrant Registrar written notice of the
location of any such office or agency and of any change of location thereof.
The Company hereby designates the Warrant Agent at its principal corporate trust
office in the Borough of Manhattan, The City of New York (the "Warrant Agent
-------------
Office"), as the initial agency maintained for each such purpose. In case the
- ------
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notice may be served at the Warrant
Agent Office and the Company appoints the Warrant Agent as its agent to receive
all such presentations, surrenders, notices and demands.
2.12 Cancellation. All Warrant Certificates surrendered for the
------------
purpose of exercise (in whole or in part), exchange, substitution or transfer
shall, if surrendered to the Company or to any of its agents, be delivered to
the Warrant Agent for cancellation or in canceled form, or if surrendered to the
Warrant Agent shall be canceled by it, and no Warrant Certificates shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Agreement. If the Company purchases or acquires Warrants and if the
Company so chooses, the Company may deliver to the Warrant Agent for
cancellation and retirement, and the Warrant Agent shall so cancel and retire
(subject to the record retention provisions of the Exchange Act), the Warrant
Certificates evidencing said Warrants. The Warrant Agent shall dispose of such
canceled Warrant Certificates in accordance with its customary procedures, and
in such case shall upon the written request of the Company deliver a certificate
of disposition thereof to the Company. The Warrant Agent shall account promptly
to the Company with respect to Warrants exercised and concurrently pay to the
Company all monies received by the Warrant Agent for the purchase of the Warrant
Shares through the exercise of such Warrants.
14
2.13 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
-----------------------------------------------------
Certificates. Upon receipt by the Company and the Warrant Agent (or any agent of
- ------------
the Company or the Warrant Agent, if requested by the Company) of evidence
satisfactory to them of the loss, theft, destruction, defacement, or mutilation
of any Warrant Certificate and of indemnity satisfactory to them (which may
include posting a bond) and, in the case of mutilation or defacement, 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 or holder in due course, the Company
---- ----
shall execute, and an authorized signatory of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate
representing a like number of Warrants, bearing a number or other distinguishing
symbol not contemporaneously outstanding. Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment from the
Holder of such Warrant Certificate of a sum sufficient to cover any tax, stamp
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 and the
Warrant Registrar) 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 constitute 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 (but shall be subject to all the
limitations of rights set forth in) this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 2.13 are exclusive with respect to
the replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates and shall preclude (to the extent lawful) any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement of lost, stolen, destroyed, defaced
or mutilated Warrant Certificates.
The Warrant Agent is hereby authorized to countersign in accordance
with the provisions of this Agreement, and deliver the new Warrant Certificates
required pursuant to the provisions of this Section.
SECTION 3. Terms of Warrants; Exercise of Warrants.
---------------------------------------
3.1 Exercise Period. Subject to the terms of this Agreement, each
---------------
Warrant Holder shall have the right, which may be exercised commencing at the
opening of business on the Exercisability Date and until 5:00 p.m., New York
City time on the Expiration Date, to receive from the Company the number of
fully paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to receive on exercise of such Warrants and payment of the Exercise
Price then in effect for such Warrant Shares. Each Warrant not exercised prior
to 5:00 p.m., New York City time, on the Expiration Date shall become void and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease as of such time.
Until the Separation Date, each $1,000 principal amount of Notes, and
Warrants which comprise each Unit, may not be separately transferred or
exchanged. The Warrant Agent shall coordinate its activities hereunder with the
Trustee under the Indenture and the Unit Agent
15
under the Unit Agreement, and may rely upon information provided by such Trustee
regarding ownership or transfer of the Notes and/or by the Unit Agent regarding
ownership or transfer of the Units.
The Company shall give notice not less than 90, and not more than 120,
days prior to the Expiration Date to the Holders of the outstanding Warrants to
the effect that the Warrants will terminate and become void as of 5:00 p.m., New
York City time, on the Expiration Date; provided, however, that the failure by
-------- -------
the Company to give such notice as provided in this Section shall not affect
such termination and becoming void of the Warrants as of 5:00 p.m., New York
City time, on the Expiration Date.
3.2 Manner of Exercise. A Warrant may be exercised at any time on or
------------------
after the Exercisability Date and prior to the Expiration Date upon (i)
surrender to the Warrant Agent of the Warrant Certificates, together with the
form of election to purchase properly completed and executed by the Holder
thereof and (ii) payment to the Warrant Agent, for the account of the Company,
of the Exercise Price for each Share or other securities issuable upon exercise
of such Warrants. The Exercise Price may be paid (i) in cash or by certified or
official bank check or by wire transfer to an account designated by the Company
for such purpose (a "Cash Exercise") or (ii) without the payment of cash, by
-------------
reducing the number of Shares that would be obtainable upon the exercise of a
Warrant and payment of the Exercise Price in cash so as to yield a number of
Shares upon the exercise of such Warrant equal to the product of (a) the number
of Shares for which such Warrant is exercisable as of the date of exercise (if
the Exercise Price were being paid in cash) and (b) the Cashless Exercise Ratio.
An exercise of a Warrant in accordance with clause (ii) of the immediately
preceding sentence is herein called a "Cashless Exercise." In the event of a
-----------------
Cashless Exercise of Warrants, the Company will purchase from the Holder thereof
such number of Warrants as would have entitled the Holder thereof to receive the
excess of the number of Shares deliverable upon a Cash Exercise over the number
of Shares deliverable upon a Cashless Exercise, for a purchase price equal to
the Exercise Price multiplied by the excess of the number of Shares purchasable
upon a Cash Exercise over the number of Shares purchasable upon a Cashless
Exercise. The Company agrees to offset the purchase price referred to in the
immediately preceding sentence with the obligation to pay the Exercise Price in
respect of the Shares deliverable upon a Cashless Exercise. Upon surrender of
a Warrant Certificate representing more than one Warrant in connection with the
Holder's option to elect a Cashless Exercise, the number of Shares deliverable
upon a Cashless Exercise shall be equal to the number of Shares issuable upon
the exercise of Warrants that the Holder specifies are to be exercised pursuant
to a Cashless Exercise multiplied by the Cashless Exercise Ratio. All
provisions of this Agreement shall be applicable with respect to a surrender of
a Warrant Certificate pursuant to a Cashless Exercise for less than the full
number of Warrants represented thereby. Upon surrender of the Warrant
Certificate and payment of the Exercise Price in accordance with this Agreement,
the Company will issue Shares of the Company for each Warrant evidenced by such
Warrant Certificate, subject to adjustment as described herein. Whenever there
occurs a Cashless Exercise, the Company shall deliver to the Warrant Agent a
certificate setting forth the Cashless Exercise Ratio. The Warrant Agent shall
be entitled to conclusively rely on such certificate and shall be under no duty
or responsibility with respect to any such certificate, except to exhibit the
same from time to time, to any Holder desiring an inspection thereof during
reasonable business hours or to provide a copy to any Holder upon
16
written request and at the expense of such Holder. The Warrant Agent shall not
at any time be under any duty or responsibility to any Holder to determine
whether the Cashless Exercise Ratio is correct or with respect to the method
employed in determining the Cashless Exercise Ratio or the validity or value of
any Shares.
Notwithstanding the foregoing, Holders will be able to exercise their
Warrants only if a registration statement under the Securities Act relating to
the Warrant Shares is then effective and available or the exercise of such
Warrants is exempt from the registration requirements of the Securities Act, and
such securities are qualified for sale or exempt from qualification under the
applicable securities laws of the states or other jurisdictions in which the
various Holders reside. Holders of the Warrants may be required, if a
registration statement under the Securities Act relating to the Shares
underlying the Warrants is not then effective and available, to effect the
exercise of Warrants solely pursuant to the Cashless Exercise Option.
3.3 Issuance of Warrant Shares. Subject to Section 2.13, upon the
--------------------------
surrender of Warrant Certificates and payment of the Exercise Price, as set
forth above, the Company shall issue Shares in such name or names as the Holder
may designate, for the number of full Warrant Shares so purchased upon the
exercise of such Warrants or other securities or property to which it is
entitled, registered or otherwise to the Person or Persons entitled to receive
the same, together with cash as provided in Section 3.4 in respect of any
fractional Warrant Shares otherwise issuable upon such exercise. Such Shares
shall be deemed to have been issued and any Person so designated shall be deemed
to have become a Holder of record of such Warrant Shares as of the date of the
surrender of such Warrant Certificates and payment of the per share Exercise
Price or upon a Cashless Exercise.
The Company hereby agrees that no service charge will be made for
registration of transfer or exchange upon surrender of any Warrant Certificate
at the office of the Warrant Agent maintained for that purpose. Holders may be
required to make payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration or
transfer or exchange of Warrant Certificates.
3.4 Fractional Warrant Shares. The Company shall not be required to
-------------------------
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be exercised in full at the same time by the same Holder, the
number of full Warrant Shares which shall be issuable upon such exercise shall
be computed on the basis of the aggregate number of Warrant Shares purchasable
pursuant thereto. If any fraction of a Warrant Share would, except for the
provisions of this Section 3.4, be issuable on the exercise of any Warrant (or
specified portion thereof), the Company may, at its option, pay an amount in
cash equal to the Current Market Value for one Warrant Share on the Business Day
immediately preceding the date the Warrant is exercised, multiplied by such
fraction, computed to the nearest whole Dutch guilder or Euro, as applicable.
3.5 Sufficient Authorized Share Capital: Listing:
--------------------------------------------
17
(a) The Company has and will maintain an authorized share capital
sufficient for the issuance of such number of Shares as will be issuable upon
the exercise of all outstanding Warrants. Such Shares, when issued and paid for
in accordance with the Warrant Agreement, will be duly and validly issued, fully
paid and nonassessable, free of preemptive rights and free from all liens,
charges and security interests with respect to the issue thereof.
(b) The Company will use its best efforts to ensure that all Warrant
Shares, upon issuance or upon the resale thereof, are listed for trading on the
Neuer Markt of the Frankfurt Stock Exchange and are available for quotation on
the OTC Bulletin Board operated by NASDAQ, Inc.
3.6 Payment of Taxes. The Company will pay all documentary stamp
----------------
taxes attributable to the initial issuance of the Warrants and the Warrant
Shares issuable upon the exercise of Warrants; provided, however, that the
-------- -------
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant Certificates or
Warrant Shares in a name other than that of the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 4. Adjustment of Exercise Price and Number of Warrant Shares
---------------------------------------------------------
Issuable.
- --------
4.1 Adjustments. The Exercise Price and the number of Warrant Shares
-----------
purchasable upon the exercise of Warrants shall be subject to adjustment from
time to time as follows:
(a) Changes in Shares. In the event that at any time or from time to
-----------------
time after the date hereof the Company shall (i) pay a dividend or make a
distribution on its Shares in Shares or other shares of capital stock, (ii)
subdivide its outstanding Shares into a larger number of Shares, (iii) combine
its outstanding Shares into a smaller number of Shares or (iv) increase or
decrease the number of Shares outstanding by reclassification of its Shares,
then the number of Shares purchasable upon exercise of each Warrant immediately
after the happening of such event shall be adjusted (including by adjusting the
definition of "Warrant Shares") so that, after giving effect to such adjustment,
the Holder of each Warrant shall be entitled to receive the number of Shares
upon exercise that such Holder would have owned or have been entitled to receive
had such Warrants been exercised immediately prior to the happening of the
events described above (or, in the case of a dividend or distribution of Shares,
immediately prior to the record date therefor). An adjustment made pursuant to
this Section 4.1(a) shall become effective immediately after the effective date,
retroactive to the record date therefor in the case of a dividend or
distribution in Shares, and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
18
(b) Cash Dividends and Other Distributions. In case at any time or
--------------------------------------
from time to time after the date hereof the Company shall distribute to Holders
of Shares (i) dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for or purchase any
of the foregoing (other than, in each case set forth in (i) and (ii), (x) any
dividend or distribution described in Section 4.1(a) or (y) any rights, options,
warrants or securities described in Section 4.1(c)) then the number of Warrant
Shares purchasable upon the exercise of each Warrant shall be increased by a
number of additional Shares determined by multiplying the number of Shares
issuable immediately prior to the record date upon exercise of each Warrant by a
fraction, the numerator of which shall be the sum of (x) any cash distributed
per Warrant Share and (y) the Current Market Value of the portion, if any, of
the distribution applicable to one Warrant Share consisting of evidences of
indebtedness, shares of stock, securities, other property, warrants, options or
subscription of purchase rights and the denominator of which shall be the
Current Market Value of the Shares comprising one Warrant Share immediately
after such dividend or other distribution. Such adjustment shall be made
whenever any distribution is made and shall become effective as of the date of
distribution, retroactive to the record date for any such distribution;
provided, however, that the Company is not required to make an adjustment
- -------- -------
pursuant to this Section 4.1(b) if at the time of such distribution the Company
makes the same distribution to Holders of Warrants as it makes to holders of
Shares pro rata based on the number of Shares for which such Warrants are
exercisable (whether or not currently exercisable). No adjustment shall be made
pursuant to this Section 4.1(b) which shall have the effect of decreasing the
number of Warrant Shares purchasable upon exercise of each Warrant.
(c) Rights Issue. In the event that at any time or from time to time
------------
after the date hereof the Company shall issue, sell, distribute or otherwise
grant any rights to subscribe for or to purchase, or any options or warrants for
the purchase of, or any securities convertible or exchangeable into, Shares to
all holders of Shares, entitling such holders to subscribe for or purchase
Shares or stock, or securities convertible into or exchangeable or exercisable
for Shares within 60 days after the record date for such issuance, sale,
distribution or other grant, as the case may be, and the sum of (a) the offering
price of such right, option, warrant or other security (on a per share basis)
and (b) any subscription, purchase, conversion or exchange price per share of
Shares (the "Consideration") is lower at the record date for such issuance than
-------------
the then Current Market Value per share of such Shares, the number of Shares
thereafter purchasable shall be increased to a number determined by multiplying
the number of Shares issuable immediately prior to the record date upon exercise
of each Warrant by a fraction, the numerator of which shall be the number of
Shares outstanding on the date of issuance of such rights, options, warrants or
securities plus the number of additional Shares offered for subscription or
purchase or into or for which such securities are convertible or exchangeable,
and the denominator of which shall be the number of Shares outstanding on the
date of issuance of such rights, options, warrants or securities plus the total
number of Shares which could be purchased at the Current Market Value with the
aggregate of the Consideration with respect to such issuance, sale, distribution
or other grant. Such adjustment shall be made whenever such rights, options or
warrants are issued and shall become effective retroactively immediately after
the record date for the determination of stockholders entitled to receive such
rights, options, warrants or securities; provided however, that the Company is
not required to make an adjustment pursuant to this Section 4.1(c) if the
Company shall make the same distribution to Holders of Warrants. No adjustment
shall be made
19
pursuant to this Section 4.1(c) which shall have the effect of decreasing the
number of Shares purchasable upon exercise of each Warrant.
If the Company at any time shall issue two or more securities as a
unit and one or more of such securities shall be rights, options or warrants for
or securities convertible or exchangeable into, Shares subject to this Section
4.1(c), the consideration allocated to each such security shall be determined in
good faith by the Board.
(d) Issuance of Additional Common Stock. If at any time the Company
-----------------------------------
shall (except as hereinafter provided) issue or sell any additional shares of
capital stock for consideration in an amount per such additional share less than
the Current Market Price, then the number of Shares for which this Warrant is
exercisable shall be adjusted to equal the product obtained by multiplying the
number of Shares for which this Warrant is exercisable immediately prior to such
issue or sale by a fraction (A) the numerator of which shall be the number of
shares of capital stock outstanding immediately after such issue or sale, and
(B) the denominator of which shall be the sum of (1) the number of shares of
capital stock outstanding immediately prior to such issue or sale, and (2) the
aggregate consideration received from the issuance or sale of the additional
shares of capital stock divided by the Current Market Price. For the purposes of
this paragraph (d), the date as of which the Current Market Price per share of
capital stock shall be computed shall be the earlier of (x) the date on which
the Company shall enter into a firm contract for the issuance of such additional
shares or (y) the date of actual issuance of such additional shares.
(e) Combination; Liquidation. (i) Except as provided in clause (ii)
------------------------
below, in the event of certain consolidations, mergers or demergers of the
Company, or the sale of all or substantially all of the assets of the Company to
another Person (a "Combination"), each Warrant will thereafter be exercisable
-----------
for the right to receive the kind and amount of shares of stock or other
securities or property to which such Holder would have been entitled as a result
of such Combination had the Warrants been exercised immediately prior thereto.
Unless clause (ii) is applicable to a Combination, if any Warrants shall be
outstanding after a Combination, the Company shall provide that the surviving or
acquiring Person (the "Successor Company") in such Combination will enter into
-----------------
an agreement with the Warrant Agent confirming the Holders' rights pursuant to
this Section 4.1(e) and providing for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
4. The provisions of this Section 4.1(e) shall similarly apply to successive
Combinations involving any Successor Company.
(ii) In the event of (A) a Combination, and, in connection therewith,
the consideration payable to the holders of Shares in exchange for their shares
is payable solely in cash or (B) a dissolution, liquidation or winding-up of the
Company, then the Holders of the Warrants will be entitled to receive
distributions on an equal basis with the holders of Shares or other securities
issuable upon exercise of the Warrants, as if the Warrants had been exercised
immediately prior to such event, less the Exercise Price. Upon receipt of such
payment, if any, the Warrants will expire and the rights of Holders thereof will
cease.
20
(iii) In the case of any such Combination, the surviving or acquiring
Person as described in this Section 4.1(e) and, in the event of any dissolution,
liquidation or winding-up of the Company, the Company, shall deposit promptly
with the Warrant Agent the funds, if any, necessary to pay to the Holders of the
Warrants the amounts to which they are entitled as described above. After such
funds and the surrendered Warrant Certificates are received, the Warrant Agent
shall make payment to the Holders by delivering a check, or by wire transfer of
same-day funds, to such Person or Persons as it may be directed in writing by
the Holders surrendering such Warrants.
(f) Tender Offers; Exchange Offers. In the event that the Company or
------------------------------
any subsidiary of the Company shall purchase Shares pursuant to a tender offer
or an exchange offer for a price per Share that is greater than the then Current
Market Value per share of Shares in effect at the end of the trading day
immediately following the day on which such tender offer or exchange offer
expires, then the Company, or such subsidiary of the Company, shall, within 10
Business Days of the expiry of such tender offer or exchange offer, offer to
purchase Warrants for comparable consideration per Share based on the number of
Shares which the Holders of such Warrants would receive upon exercise of such
Warrants (the "Offer") (such amount less the Exercise Price in respect of such
-----
share, the "Per Share Consideration"); provided, however, if a tender offer is
----------------------- -------- -------
made for only a portion of the outstanding Shares, then such offer shall be made
for such Shares issuable upon exercise of the Warrants in the same pro rata
proportion.
The Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than five Business
------------
Days after the termination of the Offer Period (the "Purchase Date"), the
-------------
Company shall purchase such Warrants for the applicable Per Share Consideration.
(g) Other Events. If any event occurs as to which the foregoing
------------
provisions of this Section 4 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board, fairly and
adequately protect the purchase rights of holders of the Warrants in accordance
with the essential intent and principles of such provisions, then the Board
shall make such adjustments in the application of such provisions, in accordance
with such essential intent and principles, as shall be reasonably necessary, in
the good faith opinion of the Board, to protect such purchase rights as
aforesaid.
(h) When No Adjustment Required. Without limiting any other
---------------------------
exception contained in this Section 4.1, and in addition thereto, no adjustment
need be made for:
(i) (A) grants to, exercises of Rights by, or issuances of
equity securities to employees, directors, consultants or advisors of the
Company or any of its subsidiaries and (B) exercises of Rights by, or
issuances of equity securities in connection with Rights previously issued
to former employees, former directors, former consultants (to the extent
that all such securities, other than those permitted by clause (ii) below,
do not have an aggregate value in excess of 15% of the equity value of the
Company on a fully diluted basis, as determined in good faith by the
Board). As used herein, "Right" shall mean
-----
21
any right, option, warrant or convertible or exchangeable security
containing the right to subscribe for or acquire on or more Shares,
excluding the Warrants;
(ii) options, warrants or other agreements or rights to purchase
capital stock of the Company entered into or granted prior to the date of
the issuance of the Warrants or any issuance of capital stock pursuant
thereto or in connection therewith;
(iii) in the case of bona fide public offerings or private
placements through investment banks of international standing;
(iv) rights to purchase Shares pursuant to a Company plan for
reinvestment of dividends or interest; and
(v) a change in the par value of Shares (including a change from
par value to no par value or vice versa).
(i) Adjustment of Exercise Price. Whenever the number of Shares
----------------------------
purchasable upon the exercise of each Warrant is adjusted, as provided under
this Section 4, the Exercise Price per Share payable upon exercise of such
Warrant shall be adjusted (calculated to the nearest $0.01) so that it shall
equal the price determined by multiplying such Exercise Price immediately prior
to such adjustment by a fraction the numerator of which shall be the number of
Shares purchasable upon the exercise of each Warrant immediately prior to such
adjustment and the denominator of which shall be the number of Shares so
purchasable immediately thereafter. Following any adjustment to the Exercise
Price pursuant to this Section 4, the amount payable, when adjusted, shall never
be less than the par value per Share at the time of such adjustment.
If, after an adjustment, a Holder of a Warrant upon exercise of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
such classes of shares in a manner that the Board deems fair and equitable to
the Holders. After such allocation, the exercise privilege and the Exercise
Price of each class of shares shall thereafter be subject to adjustment on terms
comparable to those applicable to Shares under this Section 4.
Such adjustment shall be made successively whenever any event listed
above shall occur.
4.2 Superseding Adjustment. Upon the expiration of any rights,
----------------------
options, warrants or conversion or exchange privileges which resulted in the
adjustments pursuant to this Section 4, if any thereof shall not have been
exercised, the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be readjusted as if (A) the only Shares issuable upon exercise of
such rights, options, warrants, conversion or exchange privileges were the
Shares, if any, actually issued upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (B) Shares actually issued, if
any, were issuable for the consideration actually received by the Company upon
such exercise plus the aggregate consideration, if any, actually received by the
Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange privileges whether or not exercised;
22
provided, however, that no such readjustment shall (except by reason of an
- -------- -------
intervening adjustment under Section 4.1(a)) have the effect of decreasing the
number of Warrant Shares purchasable upon the exercise of each Warrant by an
amount in excess of the amount of the adjustment initially made in respect of
the issuance, sale or grant of such rights, options, warrants or conversion or
exchange privileges.
4.3 Minimum Adjustment. The adjustments required by the preceding
------------------
Sections of this Section 4 shall be made whenever and as often as any specified
event requiring an adjustment shall occur, except that no adjustment of the
number of Shares purchasable upon exercise of Warrants that would otherwise be
required shall be made (except in the case of a subdivision or combination of
Shares, as provided for in Section 4.1(a)) unless and until such adjustment
either by itself or with other adjustments not previously made increases or
decreases by at least 1% of the number of Shares purchasable upon exercise of
Warrants immediately prior to the making of such adjustment. Any adjustment
representing a change of less than such minimum amount shall be carried forward
and made as soon as such adjustment, together with other adjustments required by
this Section 4 and not previously made, would result in a minimum adjustment.
For the purpose of any adjustment, any specified event shall be deemed to have
occurred at the close of business on the date of its occurrence. In computing
adjustments under this Section 4, fractional interests in Shares shall be taken
into account to the nearest one-hundredth of a share.
4.4 Notice of Adjustment. Whenever the number of Shares and other
--------------------
property, if any, purchasable upon exercise of Warrants is adjusted, as herein
provided, the Company shall deliver to the Warrant Agent a certificate of a firm
of internationally recognized independent accountants (who may be the regular
accountants employed by the Company) setting forth, in reasonable detail, the
event requiring the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which the Board determined
the fair market value of any evidences of indebtedness, other securities or
property or warrants or other subscription or purchase rights), and specifying
the number of Shares purchasable upon exercise of Warrants after giving effect
to such adjustment. The Company shall promptly mail, or at the expense of the
Company cause the Warrant Agent to mail, a copy of such certificate to each
Holder in accordance with Section 7.2. The Warrant Agent shall be entitled to
conclusively rely on such certificate and shall be under no duty or responsi
bility with respect to any such certificate, except to exhibit the same from
time to time, to any Holder desiring an inspection thereof during reasonable
business hours or to provide a copy to any Holder upon written request and at
the expense of such Holder. The Warrant Agent shall not at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the number of Shares or other stock or
property, purchasable on exercise of the Warrants, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment or the validity or value of any Shares.
4.5 Notice of Certain Transactions. In the event that the Company
------------------------------
shall propose (a) to pay any dividend payable in securities of any class to the
holders of its Shares or to make any other distribution to the holders of its
Shares, (b) to offer the holders of its Shares rights to subscribe for or to
purchase any securities convertible into Shares or Shares or shares of stock
23
of any class or any other securities, rights or options, (c) to effect any
reclassification of its Shares, capital reorganization or Combination or (d) to
effect the voluntary or involuntary dissolution, liquidation or winding-up of
the Company, or in the event of a tender offer or exchange offer described in
Section 4.1(f), the Company shall within 5 Business Days of making such
proposal, tender offer or exchange offer send to the Warrant Agent a notice and
the Warrant Agent shall within 5 Business Days thereafter send the Holders such
notice (in such form as shall be furnished to the Warrant Agent by the Company)
of such proposed action or offer, such notice to be mailed by the Company, or at
the expense of the Company by the Warrant Agent, to the Holders at their
addresses as they appear in the Warrant Register, which shall specify the record
date for the purposes of such dividend, distribution or rights, or the date such
issuance or event is to take place and the date of participation therein by the
holders of Shares, if any such date is to be fixed, and shall briefly indicate
the effect of such action on the Shares and on the number and kind of any other
shares of stock and on other property, if any, and the number of Shares and
other property, if any, purchasable upon exercise of each Warrant after giving
effect to any adjustment which will be required as a result of such action.
Such notice shall be given by the Company as promptly as possible and, in the
case of any action covered by clause (a) or (b) above, at least 10 Business Days
prior to the record date for determining holders of the Shares for purposes of
such action and, in the case of any other such action, at least 20 Business Days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Shares, whichever shall be the earlier.
4.6 Adjustment to Warrant Certificate. The form of Warrant
---------------------------------
Certificate need not be changed because of any adjustment made pursuant to this
Section 4, and Warrant Certificates issued after such adjustment may state the
same Exercise Price and the same number of Shares as are stated in any Warrant
Certificates issued prior to the adjustment. The Company, however, may at any
time in its sole discretion make any change in the form of Warrant Certificate
that it may deem appropriate to give effect to such adjustments and that does
not affect the substance of the Warrant Certificate, 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.
4.7 Challenge to Good Faith Determination. Whenever the Board shall
-------------------------------------
be required to make a determination in good faith of the Current Market Value of
any item under Section 4, such determination may be challenged in good faith by
the Majority Holders.
4.8 Treasury Stock. The sale or other disposition of any issued
--------------
Shares owned or held by or for the account of the Company shall be deemed an
issuance thereof and a repurchase thereof and designation of such shares as
treasury stock shall be deemed to be a redemption thereof for the purposes of
this Agreement.
SECTION 5. Holders' Rights.
---------------
24
5.1 Registration Rights.
--------------------
(a) Shelf Registration Statement. The Company agrees with and for the
----------------------------
benefit of the Holders to file with the Commission a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering the
issuance of Warrant Shares to the Holders upon exercise of the Warrants by the
Holders (or, if required by applicable law, the resale of Warrants or of Warrant
Shares received by such Holder upon exercise) (the "Shelf Registration
------------------
Statement") a sufficient period of time in advance of any Exercisability Date so
as to enable such Shelf Registration Statement to be declared effective by the
time specified in Section 5.1(b). The Shelf Registration Statement shall be on
Form S-1 or another appropriate form permitting registration of such Warrants
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Warrants and the Warrant Shares to be
included in the Shelf Registration Statement. In addition, the Company agrees
that it shall make all required filings pursuant to all applicable state "Blue
Sky" or securities laws.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act (and to
make any required filings as may be necessary to comply with all applicable
state "Blue Sky" or securities laws) on or prior to the Exercisability Date
(other than when the Exercisability Date is first triggered by the closing of a
Public Offering, in which event the Shelf Registration Statement shall be
declared effective on or before the next such Exercisability Date) and shall
cause such Shelf Registration Statement to remain effective under the Securities
Act (and all applicable state "Blue Sky" or securities laws) until the earlier
of (i) such time as all Warrants have been exercised and the Warrant Shares in
respect thereof have either been issued or been resold by such holders pursuant
to an effective registration statement under the Securities Act and (ii) the
Expiration Date (the "Effectiveness Period").
--------------------
(c) Withdrawal of Stop Orders. If the Shelf Registration Statement
-------------------------
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(d) Supplements and Amendments. The Company shall promptly
--------------------------
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if requested
by the Holders of a majority of the Warrants covered by such Registration
Statement or by any underwriter of such Warrants based on a reasonable belief
that such supplement or amendment is required by law.
(e) Suspension of Shelf Registration Statement. During any
------------------------------------------
consecutive 365-day period, the Company shall be entitled to suspend the
availability of the Shelf Registration Statement for up to two 30 consecutive-
day periods (except for the 30 consecutive-day period immediately prior to the
Expiration Date) if the Board determines in the exercise of its reasonable
judgment that there is a valid business purpose for such suspension and provides
notice to the Holders of the Warrants that such determination was made;
provided, however, that
25
in no event shall the Company be required to disclose the business purpose for
such suspension if the Company determines in good faith that such business
purpose must remain confidential.
(f) Registration Expenses. All expenses incident to the Company's
---------------------
performance of or compliance with this Section 5.1 will be borne by the Company,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Warrant Shares and printing of prospectuses), messenger and
delivery services; (iv) all fees and disbursements of counsel for the Company;
(v) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance); and (vi) the Company's internal
expenses, the expenses of any annual or other audit and the fees and expenses of
any Person, including special experts, retained by the Company.
(g) In the case of any Shelf Registration Statement relating to the
resale of Warrants or Warrant Shares by the holders thereof, such holders will
be named in the Shelf Registration Statement and will enter into such customary
agreements (which shall include customary representations, warranties, covenants
and indemnification provisions) and take such other actions as the Company (or
any underwriters of the Company) may reasonably require in order to expedite and
facilitate the disposition of Warrants or Warrant Shares pursuant thereto.
(h) For purposes of this Section 5.1, the Company shall enter into
such customary agreements (which shall include customary representations,
warranties, covenants and indemnification provisions) and take such other
actions as the holders of Warrants or Warrant Shares (or any underwriters in
connection with any offering) may reasonably request in order to expedite and
facilitate the disposition of Warrants and Warrant Shares pursuant to this
Section 5.1, and generally shall use its reasonable best efforts to take all
other steps necessary to effect the registration and sale of such Warrants and
Warrant Shares. In addition, in the case of any Shelf Registration Statement
relating to the resale of Warrants or Warrant Shares by the holders thereof, the
Company shall also furnish to any such holders upon request such number of
copies of the prospectus included in such Shelf Registration Statement as shall
be reasonably required by such holder in order to comply with the Securities Act
in connection with such resale.
5.2 Piggyback Registration Right. (a) If the Company proposes to
----------------------------
effect a Public Offering, the Company must, not later than the date of the
initial filing of a registration statement pertaining thereto, provide written
notice thereof to the Holders of the Warrants and Warrant Shares. Each such
Holder will have the right, within 20 days after receipt of such notice, to
request (which request will indicate the intended method of distribution) that
the Company include such Holder's Warrant Shares for sale pursuant to such
registration statement.
(b) The Company will include in such Public Offering all the Warrant
Shares for which it receives notice pursuant to Section 5.2(a), unless the
managing underwriter for such Public Offering (the "Managing Underwriter")
--------------------
determines that, in its opinion, the number of Warrant Shares that the Holders
of Warrants and Warrant Shares (the "Requesting Holders")
------------------
26
have requested to be sold in such Public Offering, plus the total number of
Shares that the Company and any other selling stockholders entitled to sell
Shares in such Public Offering propose to sell in such Public Offering, exceed
the maximum number of Shares that may be distributed without materially
adversely affecting the price, timing or distribution of the Shares to be sold
by the Company. In such event, the Company will be required to include in such
Public Offering only that number of Warrant Shares which the Managing
Underwriter believes may be sold without causing such adverse effect in the
following order: (i) all the Shares that the Company proposes to sell in such
Public Offering, (ii) all Shares that are proposed to be sold by any holder of
Shares who is exercising a demand registration right existing on the date of the
issuance of the Warrants, if such Public Offering is being made pursuant to such
demand and (iii) Warrant Shares of the Requesting Holders and all other Shares
that are proposed to be sold by any holder of Shares on a pro rata basis in an
aggregate number which is equal to the difference between the maximum number of
Shares that may be distributed in such Public Offering as determined by the
Managing Underwriter and the number of Shares to be sold in such Public Offering
pursuant to clauses (i) and (ii) above. The Company will have the right to
postpone or withdraw any registration statement prior to the effective date
without obligation to any Requesting Holder.
(c) Registration Expenses. All expenses incident to the Company's
---------------------
performance of or compliance with Section 5.2 will be borne by the Company,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Warrant Shares and printing of prospectuses), messenger and
delivery services; (iv) all fees and disbursements of counsel for the Company
and of a single counsel on behalf of all sellers of Warrant Shares thereunder;
(v) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance); and (vi) the Company's internal
expenses, the expenses of any annual or other audit and the fees and expenses of
any Person, including special experts, retained by the Company.
(d) In connection with the exercise of any such piggyback
registration right, the holders of Warrant Shares will be named in the
registration statement relating thereto, and will be required to enter into such
customary agreements (which shall include customary representations, warranties,
covenants and indemnification provisions) and take such other actions as the
underwriters in connection with such offering reasonably request in order to
expedite and facilitate the disposition of Warrant Shares pursuant thereto.
In addition the Company shall enter into such customary agreements
(which shall include customary representations, warranties, covenants and
indemnification provisions) and take such other actions for the benefit of such
holders of Warrant Shares as are reasonable and customary for such offerings and
in order to expedite and facilitate the disposition of Warrant Shares pursuant
to this Section 5.2, and generally shall use its reasonable best efforts to take
all other steps necessary to effect the registration and sale of such Warrant
Shares.
SECTION 6. Warrant Agent.
-------------
27
6.1 Appointment of Warrant Agent. The Company hereby appoints the
----------------------------
Warrant Agent to act as agent for the Company in accordance with provisions of
this Agreement and the Warrant Agent hereby accepts such appointment. The
Company hereby agrees that so long as any Units remain outstanding, the Warrant
Agent may appoint the Unit Agent to act as its agent with respect to its duties
hereunder as provided in the Unit Agreement.
6.2 Rights and Duties of Warrant Agent. (a) 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
obligation or relationship or agency or trust for or with any of the Holders of
Warrant Certificates or beneficial owners of Warrants.
(b) The Warrant Agent may consult with counsel satisfactory to it
(who may be counsel for the Company), and the advice of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(c) 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, certificate of shares, notice, resolution, direction,
consent, certificate, affidavit, statement or other paper or document believed
by it to be genuine and to have been presented or signed by the proper parties.
(d) 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 institute any action, suit or legal proceeding or to take any
other action which may tend to involve it in any expense or liability for which
it does not receive indemnity satisfactory to it if such indemnity is requested.
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 countersigned by
the Warrant Agent and delivered by it to the Holders or on behalf of the Holders
pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrants. 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 with respect to such default, including any
duty or responsibility to initiate or attempt to initiate any proceedings at law
or otherwise.
(e) The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist that may
require an adjustment of the number of Shares purchasable upon exercise of each
Warrant or the Exercise Price, or with respect to the nature or extent of any
adjustment when made, or with respect to the method employed, or herein or in
any supplemental agreement provided to be employed, in making the same. The
Warrant Agent shall not be responsible to determine the Cashless Exercise Ratio
or any other calculation hereunder. The Warrant Agent shall not be accountable
with respect to the validity or value of any Shares or of any securities or
property which may at any time be issued or delivered upon the
28
exercise of any Warrant or upon any adjustment pursuant to Section 4, and it
makes no representation with respect thereto. The Warrant Agent shall not be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any Shares or stock certificates upon the surrender of any
Warrant Certificate for the purpose of exercise or upon any adjustment pursuant
to Section 4, or to comply with any of the covenants of the Company contained in
Section 4.
(f) Before the Warrant Agent acts or refrains from acting with
respect to any matter contemplated by this Warrant Agreement, it may require
from the Company:
(i) an Officers' Certificate of the Company stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in
this Warrant Agreement relating to the proposed action have been complied
with; and
(ii) an opinion of counsel for the Company stating that, in the
opinion of such counsel, all such conditions precedent have been complied
with.
Each Officers' Certificate or opinion of counsel with respect to
compliance with a condition or covenant provided for in this Warrant
Agreement shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
provided, however, that with respect to matters of fact an Opinion of Counsel
- -------- -------
may rely on an Officers' Certificate or certificates of public officials.
The Warrant Agent shall not be liable for any action it takes or omits
to take in good faith in reliance on any such certificate or opinion.
(g) The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder by or from the Company available for
inspection by the Holders during normal business hours at its office or shall
provide copies of such documents to any Holder upon the written request of such
Holder and at the expense of such Holder. The Company shall supply
29
the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may request.
(h) The Warrant Agent shall not be liable for any action taken or
omitted or for any loss or injury resulting from its actions or its performance
or lack of performance of its duties hereunder in the absence of gross
negligence or willful misconduct on its part. In no event shall the Warrant
Agent be liable (i) for any indirect, consequential, punitive or special
damages, regardless of the form of action and whether or not any such damages
were foreseeable or contemplated, or (ii) for the acts or omissions of its
nominees, correspondents, designees, agents, subagents or independent
contractors.
(i) The Warrant Agent shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties hereunder.
6.3 Individual Rights of Warrant Agent. The Warrant Agent and any
----------------------------------
stockholder, director, officer or employee of the Warrant Agent may buy, sell or
deal in any of the Warrants or other securities of the Company or its affiliates
or become pecuniarily interested in transactions in which the Company or its
affiliates may be interested, or contract with or lend money to the Company or
its affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
6.4 Warrant Agent's Disclaimer. The Warrant Agent shall not be
--------------------------
responsible for and makes no representation as to the validity or adequacy of
this Agreement or the Warrant Certificates and it shall not be responsible for
any statement in this Agreement or the Warrant Certificates other than its
countersignature thereon.
6.5 Compensation and Indemnity. The Company shall pay to the Warrant
--------------------------
Agent from time to time such compensation as the Company and the Warrant Agent
shall from time to time agree in writing for its acceptance of this Warrant
Agreement and services hereunder. The Company shall reimburse the Warrant Agent
upon request for all reasonable disbursements, expenses and advances (including
reasonable fees and expenses of counsel) incurred or made by it in addition to
the compensation for its services, except any such disbursements, expenses and
advances as may be attributable to the Warrant Agent's gross negligence or bad
faith. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Warrant Agent's accountants, experts and counsel.
The Company shall indemnify each of the Warrant Agent and any
predecessor Warrant Agent for, and hold them harmless against, any and all loss,
damage, claim, expense or liability including taxes (other than taxes based on
the income of the Warrant Agent) incurred by the Warrant Agent without gross
negligence, willful misconduct or bad faith on its part in connection with or in
any way relating to or arising out of its acceptance of administration of this
Agreement and its duties under this Warrant Agreement, including the reasonable
expenses and attorneys' fees and expenses of defending itself against any claim
of liability arising hereunder. The Warrant Agent shall notify the Company
promptly of any claim asserted against the Warrant
30
Agent for which it may seek indemnity. However, the failure by the Warrant Agent
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Warrant Agent shall
cooperate in the defense (and may employ its own counsel satisfactory to the
Warrant Agent) at the Company's expense. The Warrant Agent may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Warrant Agent as a result of the violation of this Warrant Agreement by the
Warrant Agent if such violation arose from the Warrant Agent's gross negligence
or bad faith.
To secure the Company's payment obligations in this Section 6.5, the
Warrant Agent shall have a senior lien against all money or property held or
collected by the Warrant Agent in its capacity as Warrant Agent.
When the Warrant Agent incurs expenses or renders services after an
Event of Default specified in the Indenture occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 6.5 and any claim arising hereunder shall survive the termination of
this Warrant Agreement, the resignation or removal of any Warrant Agent, and any
rejection or termination under any Bankruptcy Law.
6.6 Successor Warrant Agent. (a) The Company agrees for the benefit
-----------------------
of the Holders 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 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, however, that such date
-------- -------
shall not be less than 30 days 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, which date shall not be less than 30 days after such notice is
given unless the Warrant Agent otherwise agrees. Any removal under this Section
6.6 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.
(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
31
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 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 of 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; provided, however, that in the event of the resignation
-------- -------
of the Warrant Agent hereunder, such resignation shall be effective on the
earlier of (i) the date specified in the Warrant Agent's notice of resignation
and (ii) the appointment and acceptance of a successor 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 rights and obligations of such predecessor with like effect as if originally
named as 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 consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all its corporate trust business, 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.
SECTION 7. Miscellaneous.
-------------
7.1 Reports. (a) The Company will file on a timely basis with the
-------
Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, (i) all annual and quarterly financial statements and other
financial information that would be required to be contained in a filing with
the Commission on Forms 10-K and 10-Q if the Company were required to file such
forms (which financial statements shall be prepared in accordance with U.S.
GAAP), including a
32
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual financial information, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports. Such quarterly financial
information shall be filed with the Commission within 45 days following the end
of each fiscal quarter of the Company, and such annual financial information
shall be furnished within 90 days following the end of each fiscal year of the
Company. Such annual financial information shall include the geographic segment
financial information required to be disclosed by the Company under Item 101(d)
of Regulation S-K under the Securities Act.
(b) The Company will also be required (a) to file with the Warrant
Agent, and provide to each Holder of the Warrants or Warrant Shares, without
cost to such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective Holder of Warrants or Warrant
Shares promptly upon request. In addition, for so long as the Warrants or
Warrant Shares remain outstanding and the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act nor exempt
from reporting under Rule 12g3-2(b) of the Exchange Act, the Company shall
furnish to the Holders of Warrants and Warrant Shares and to prospective Holders
thereof, upon their request, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act and, to any beneficial Holder of
Warrants or Warrant Shares, information of the type that would be filed with the
Commission pursuant to the foregoing provisions, upon the request of any such
Holder.
7.2 Notices to the Company and Warrant Agent. Any notice or demand
----------------------------------------
authorized by this Agreement to be given or made by the Warrant Agent or by the
Holder of any Warrant Certificate to or on the Company shall be sufficiently
given or made (i) five business days after deposited in the mail, first class or
registered, postage prepaid, (ii) one business day after being timely delivered
to a next-day air courier or (ii) when receipt is acknowledged by the addressee,
if telecopied, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Cybernet Internet Services International, Inc.
Stefan-George-Ring 19-23
81929 Munich
Germany
Attention: Robert Eckert
Telecopy: +49-89-993-15199
with a copy to:
Powell, Goldstein, Frazer and Murphy LLP
1001 Pennsylvania Avenue, N.W.
33
Washington D.C. 20004
Attention: Joseph M. Berl
Facsimile: +1-202- 624-7222
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
the Holder(s) of any Warrant Certificate to the Warrant Agent shall be
sufficiently given or made (i) upon receipt, if mailed, first-class or
registered, postage prepaid, (ii) one business day after being timely delivered
to a next-day air courier or (ii) when receipt is acknowledged by the addressee,
if telecopied, addressed (until another address is filed in writing by the
Warrant Agent with the Company) to the Warrant Agent as follows:
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Facsimile: 212-815-5915
7.3 Supplements and Amendments. This Agreement may be amended by the
--------------------------
parties hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided, however, that such action shall not
-------- -------
affect adversely the rights of the Holders. Any amendment or supplement to this
Agreement that has or would have an adverse effect on the interests of the
Holders shall require the written consent of the Holders of a majority of the
outstanding Warrants. The consent of each Holder of Warrants affected shall be
required for any amendment pursuant to which the Exercise Price would be
increased or the number of Shares purchasable upon exercise of Warrants would be
decreased (other than pursuant to adjustments provided herein) or the exercise
period with respect to the Warrants would be shortened. Prior to executing any
supplement or amendment, the Warrant Agent shall be entitled to receive, and
shall be fully protected in relying upon, an opinion of counsel stating that the
execution of such supplement or amendment is authorized or permitted by this
Agreement.
7.4 Severability. The provisions of this Agreement are severable,
------------
and if any clause or provision shall be held invalid, illegal or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
34
7.5 Successors. All the covenants and provisions of this Agreement
----------
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
7.6 Termination. This Agreement (other than the Company's
-----------
obligations with respect to Warrants previously exercised) shall terminate at
5:00 p.m., New York City time on the Expiration Date.
7.7 Governing Law. This Agreement and the Warrants shall be governed
-------------
by, and construed and interpreted in accordance with, the law of the State of
New York.
7.8 Submission to Jurisdiction; Appointment of Agent for Service;
-------------------------------------------------------------
Waiver. To the fullest extent permitted by applicable law, the Company
- -------
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in the City of New York, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Agreement and the Warrants, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CSC, at Two World Trade Center, Suite 8746, New York, New York 10048
(the "Authorized Agent"), as its authorized agent upon whom process may be
----------------
served in any such suit or proceeding. The Company represents that it has
notified the Authorized Agent of such designation and appointment and that the
Authorized Agent has accepted the same in writing. The Company hereby
irrevocably authorizes and directs its Authorized Agent to accept such service.
The Company further agrees that service of process upon its Authorized Agent and
written notice of said service to the Company mailed by first class mail or
delivered to its Authorized Agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. Nothing
herein shall affect the right of any person to serve process in any other manner
permitted by law. The Company agrees that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other lawful manner.
The Company hereby irrevocably waives, to the extent permitted by law,
any immunity to jurisdiction to which it may otherwise be entitled (including,
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Warrant Agreement, the Warrant Certificates or
the transactions contemplated hereby.
To the extent permitted by applicable law, the Company and the Warrant
Agent each waive any right to have a jury participate in resolving any dispute,
whether sounding in contract, tort, or otherwise arising out of, connected with,
related to or incidental to the relationship established between them in
connection with this Agreement. Instead, any disputes resolved in court will be
resolved in a bench trial without a jury.
35
The provisions of this Section 7.8 are intended to be effective upon
the execution of this Warrant Agreement and the Warrant Certificates without any
further action by the Company or the Warrant Agent and the introduction of a
true copy of this Warrant Agreement into evidence shall be conclusive and final
evidence as to such matters.
7.9 Benefits of this Agreement. (a) Nothing in this Agreement shall
--------------------------
be construed to give to any Person or corporation other than the Company, the
Warrant Agent and the Holders of the Warrant Certificates any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the Holders of
the Warrant Certificates.
(b) Prior to the exercise of the Warrants, no Holder of a Warrant
Certificate, as such, shall be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company, to share in the assets of the Company in the event of
the liquidation, dissolution or winding up of the Company's affairs or any other
matter or to receive any notice of any proceedings of the Company, except as may
be specifically provided for herein.
(c) All rights of action in respect of this Agreement are vested in
the Holders of the Warrants, and any Holder of any Warrant, without the consent
of the Warrant Agent or the Holder of any other Warrant, may, on such Holder's
own behalf and for such Holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Holder's rights hereunder, including the right
to exercise, exchange or surrender for purchase such Holder's Warrants in the
manner provided in this Agreement.
7.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
7.11 Table of Contents. The table of contents and headings of the
-----------------
Sections of this Agreement have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
7.12 Survival of Provisions. The provisions of Section 6.5 herein
----------------------
shall survive the termination of this Agreement, and the resignation or removal
of the Warrant Agent.
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By: /s/ Authorized Signatory
-----------------------------
By: /s/ Authorized Signatory
-----------------------------
37
THE BANK OF NEW YORK, as Warrant Agent
By: /s/ Authorized Signatory
-------------------------------
38
EXHIBIT A TO
WARRANT AGREEMENT
[FORM OF FACE OF GLOBAL WARRANT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 2.9 AND 2.10 OF THE WARRANT AGREEMENT DATED
AS OF JULY 8, 1999.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) WITH THE CONSENT OF THE
COMPANY, PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHICH THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT (I) IN CONSENTING TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D), THE COMPANY SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER, TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE WARRANT AGENT, THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
THIS CERTIFIES THAT, Cede & Co., or its registered assigns, is the
registered holder of the number of Warrants set forth above (the "Warrants").
--------
Each Warrant entitles the holder thereof (the "Holder"), at its option and
------
subject to the provisions contained herein and in the Warrant Agreement dated as
of July 8, 1999 (the "Warrant Agreement"), between the Company and The Bank of
-----------------
New York, as Warrant Agent (the "Warrant Agent", which term includes any
-------------
successor Warrant Agent under the Warrant Agreement), to purchase from Cybernet
Internet Services International, Inc., a Delaware corporation (the "Company"),
30.2310693 Warrant Shares per Warrant at the exercise price of $22.278 per share
(the "Exercise Price"), or by Cashless Exercise. This Warrant 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. The Warrant Agreement is hereby incorporated herein by reference and
made a part hereof. Reference is hereby made to the Warrant Agreement for a
full statement of the respective rights, limitations of rights, duties and
obligations of the Company, the Warrant Agent and the Holders of the Warrants.
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Warrant Agreement. This Warrant Certificate shall terminate and
become void as of 5:00 p.m. on July 8, 2009 (the "Expiration Date") or upon the
---------------
exercise hereof as to all the Shares subject hereto. The Exercise Price and the
number of Warrant Shares purchasable upon exercise of the Warrants shall be
subject to adjustment from time to time as set forth in the Warrant Agreement.
As provided in the Warrant Agreement until the earliest of (1) the
commencement of an exchange offer or the effectiveness of a shelf registration
statement, each relating to the Notes, and (2) such other date as the Initial
Purchasers shall jointly determine in their sole discretion, each $1,000
principal amount of Notes and one Warrant which collectively comprise each Unit
may not be transferred or exchanged separately.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
The Warrant Agreement and the Warrants shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, Cybernet Internet Services International, Inc. has
caused this Warrant Certificate to be executed on behalf of the Company by two
Officers of the Company.
Dated: July 8, 1999
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
---------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
Countersigned:
THE BANK OF NEW YORK,
as Warrant Agent
By
------------------------
Authorized Signatory
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at The
Bank of New York, 101 Barclay Street, Floor 21W, New York, New York, 10286,
Attention: Corporate Trust Trustee Administration, Telecopy: +212-815-5915.
Warrants may be exercised at any time commencing at the opening of
business on the Exercisability Date and until 5:00 p.m., New York City time on
the Expiration Date. Subject to the terms of the Warrant Agreement, the
Warrants may be exercised in whole or in part (i) by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price in cash to
the Warrant Agent for the account of the Company at the office of the Warrant
Agent or (ii) by Cashless Exercise. Payment of the Exercise Price in cash shall
be made in cash or by certified or official bank check payable to the order of
the Company or by wire transfer of funds to an account designated by the Company
for such purpose. Payment by Cashless Exercise shall be made by the surrender
of a Warrant or Warrants represented by one or more Warrant Certificates and
without payment of the Exercise Price in cash, in exchange for the issuance of
such number of Shares equal to the product of (1) the number of Shares for which
such Warrant would otherwise then be nominally exercised if payment of the
Exercise Price were being made in cash and (2) the Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the number of Shares issuable upon the exercise of
each Warrant shall, subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following which
this Warrant remains outstanding, the Holder hereof will be entitled to receive
upon exercise of the Warrants the shares of capital stock or other securities or
other property of such surviving entity as such Holder would have been entitled
to receive upon or as the result of such Combination had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
-------- -------
the event that, in connection with such Combination, consideration to holders of
Shares in exchange for their shares is payable solely in cash or in the event of
the dissolution, liquidation or winding-up of the Company, the Holder hereof
will be entitled to receive distributions on an equal basis with the holders of
Shares or other securities issuable upon exercise of the Warrants, as if the
Warrants had been exercised immediately prior to such events, less the Exercise
Price.
The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with the transfer or
exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the Warrants shall not have been
exercised. This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. In the event any fractional Warrant
Shares would have to be issued upon the exercise of the Warrants, the Company
may, at its option, pay an amount in cash equal to the Current Market Value for
one Warrant Share on the Business Day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole Dutch
guilder in lieu of issuing such fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Shares issuable upon exercise of
the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to effect a
Public Offering, it shall be obligated to include the Warrant Shares of holders
who request to have such Warrant Shares included; provided, however, that the
-----------------
Managing Underwriter may, under certain conditions, limit the number of such
Warrant Shares to be included in the Public Offering.
The Warrants do not entitle any holder hereof to any of the rights of
a stockholder of the Company. All Shares issuable by the Company upon the
exercise of the Warrants shall, upon such issue, be duly and validly issued and
fully paid and non-assessable.
The Holder in whose name the Warrant Certificate is registered may be
deemed and treated by the Company and the Warrant Agent as the absolute owner of
the Warrant Certificate for all purposes whatsoever and neither the Company nor
the Warrant Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise
____________________ Warrants at an exercise price per Warrant Share
of $22.278 to acquire an equal number of Warrant Shares on the terms and
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to , and directs that the Shares deliverable
upon the exercise of such Warrants be registered or placed in the name and at
the address specified below and delivered thereto.
Date: ,
----------------- ----
/1/
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
--------------------------------
- ----------------
/1/ The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL WARRANTS
The following increases or decreases in this Global Warrant have been made:
Number of
Warrants of
Amount of Amount of this Global
decrease in increase in Warrant Signature of
Number of Number of following authorized
Date of Warrants of this Warrants of this such decrease officer of
Exchange Global Warrant Global Warrant or increase Warrant Agent
- ----------------------------------------------------------------------------
EXHIBIT B TO
WARRANT AGREEMENT
[FORM OF FACE OF DEFINITIVE WARRANT CERTIFICATE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (D) WITH THE CONSENT OF THE COMPANY, PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHICH THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
(I) IN CONSENTING TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D),
THE COMPANY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER, TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT, AND (II) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT
AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
CUSIP No._____________
No. ___ _____ Warrants
WARRANT CERTIFICATE
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
THIS CERTIFIES THAT, _______________ is the owner of _____ Warrants
(the "Warrants") as described above, transferable only on the books of the
--------
Company by the holder thereof in person or by his or her duly authorized
attorney, on surrender of the Certificate properly endorsed. This Warrant
entitles the holder thereof (the "Holder"), at its option and subject to the
------
provisions contained herein and in the Warrant Agreement, dated as of July 8,
1999 (the "Warrant Agreement"), between the Company and The Bank of New York, as
-----------------
Warrant Agent (the "Warrant Agent", which term includes any successor Warrant
-------------
Agent under the Warrant Agreement), to purchase from Cybernet Internet Services
International, Inc., a Delaware corporation (the "Company"), 30.2310693 Warrant
Shares per Warrant at the exercise price per share of $22.278 (the "Exercise
--------
Price"), or by Cashless Exercise. This Warrant 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.
The Warrant Agreement is hereby incorporated herein by reference and made a part
hereof. Reference is hereby made to the Warrant Agreement for a full statement
of the respective rights, limitations of rights, duties and obligations of the
Company, the Warrant Agent and the Holders of the Warrants. Capitalized terms
used but not defined herein shall have the meanings ascribed thereto in the
Warrant Agreement. This Warrant Certificate shall terminate and become void as
of 5:00 p.m. on July 8, 2009 (the "Expiration Date") or upon the exercise hereof
---------------
as to all the Shares subject hereto. The Exercise Price and the number of
Warrant Shares purchasable upon exercise of the Warrants shall be subject to
adjustment from time to time as set forth in the Warrant Agreement.
As provided in the Warrant Agreement until the earliest of (1) the
commencement of an exchange offer or the effectiveness of a shelf registration
statement, each relating to the Notes, and (2) such other date as the Initial
Purchasers shall jointly determine in their sole discretion, each $1,000
principal amount of Notes and one Warrant which collectively comprise each Unit
may not be transferred or exchanged separately.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
The Warrant Agreement and the Warrants shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, Cybernet Internet Services International, Inc. has
caused this Warrant Certificate to be executed on behalf of the Company by two
Officers of the Company.
Dated: July 8, 1999
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Countersigned:
THE BANK OF NEW YORK,
as Warrant Agent
By
---------------------------
Authorized Signatory
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Warrant Agent at The
Bank of New York, 101 Barclay Street, Floor 21W, New York, New York, 10286,
Attention: Corporate Trust Trustee Administration, Telecopy: +212-815-5915.
Warrants may be exercised at any time commencing at the opening of
business on the Exercisability Date and until 5:00 p.m., New York City time on
the Expiration Date. Subject to the terms of the Warrant Agreement, the
Warrants may be exercised in whole or in part (i) by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price in cash to
the Warrant Agent for the account of the Company at the office of the Warrant
Agent or (ii) by Cashless Exercise. Payment of the Exercise Price in cash shall
be made in cash or by certified or official bank check payable to the order of
the Company or by wire transfer of funds to an account designated by the Company
for such purpose. Payment by Cashless Exercise shall be made by the surrender
of a Warrant or Warrants represented by one or more Warrant Certificates and
without payment of the Exercise Price in cash, in exchange for the issuance of
such number of Shares equal to the product of (1) the Exercise Price and the
number of Shares for which such Warrant would otherwise then be nominally
exercised if payment of the Exercise Price were being made in cash and (2) the
Cashless Exercise Ratio.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Shares issuable upon the exercise of each Warrant shall,
subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following which
this Warrant remains outstanding, the Holder hereof will be entitled to receive
upon exercise of the Warrants the shares of capital stock or other securities or
other property of such surviving entity as such Holder would have been entitled
to receive upon or as the result of such Combination had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
-------- -------
the event that, in connection with such Combination, consideration to holders of
Shares in exchange for their shares is payable solely in cash or in the event of
the dissolution, liquidation or winding-up of the Company, the Holder hereof
will be entitled to receive distributions on an equal basis with the holders of
Shares or other securities issuable upon exercise of the Warrants, as if the
Warrants had been exercised immediately prior to such events, less the Exercise
Price.
The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with the transfer or
exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the Warrant Shares as to which the Warrants shall not have been
exercised. This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. In the event any fractional Warrant
Shares would have to be issued upon the exercise of the Warrants, the Company
may, at its option, pay an amount in cash equal to the Current Market Value for
one Warrant Share on the Business Day immediately preceding the date the Warrant
is exercised, multiplied by such fraction, computed to the nearest whole Dutch
guilder in lieu of issuing such fractional share.
Pursuant to the Warrant Agreement, the Company has certain
registration obligations with respect to the Shares issuable upon exercise of
the Warrants.
Pursuant to the Warrant Agreement, if the Company proposes to effect a
Public Offering, it shall be obligated to include the Warrant Shares of holders
who request to have such Warrant Shares included; provided, however, that the
-----------------
Managing Underwriter may, under certain conditions, limit the number of such
Warrant Shares to be included in the Public Offering.
The Warrants do not entitle any holder hereof to any of the rights of
a stockholder of the Company. All Shares issuable by the Company upon the
exercise of the Warrants shall, upon such issue, be duly and validly issued and
fully paid and non-assessable.
The Holder of this Warrant Certificate may be deemed and treated by
the Company and the Warrant Agent as the absolute owner of the Warrant
Certificate for all purposes whatsoever and neither the Company nor the Warrant
Agent shall be affected by notice to the contrary.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise
____________________ Warrants at an exercise price per Warrant Share
of $22.278 to acquire an equal number of Warrant Shares on the terms and
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to , and directs that the Shares deliverable
upon the exercise of such Warrants be registered or placed in the name and at
the address specified below and delivered thereto.
Date: ,
----------------- ----
/1/
-------------------------------
(Signature of Owner)
-------------------------------
(Street Address)
-------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
-------------------------------
- ------------
/1/ The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code: