Form of Universal Warrant Agreement Exhibit 4.4
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INDEX WARRANT AGREEMENT
dated as of ________ __, 200__
between
UBS AG
and
[NAME OF WARRANT AGENT], as Warrant Agent
___________________________
[Name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__
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TABLE OF CONTENTS
Page
PARTIES..................................................................... 1
RECITALS.................................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants;
Book-Entry Procedures; Successor Depository................ 1
Section 1.02. Form; Denominations; Execution, Countersignature, Delivery
and Dating of Global Warrant Certificates.................. 4
Section 1.03. Definitive Warrant Certificates............................ 6
Section 1.04. Maintenance of Warrant Register; Registration of Transfers
and Exchanges of Global Warrant Certificates............... 8
Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. 10
Section 1.06. Cancellation of Warrants................................... 11
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of Exercise; Minimum
[and Maximum] Exercise Amounts; Notice of Exercise......... 12
Section 2.02. Exercise of Warrants....................................... 15
Section 2.03. Automatic Exercise of Warrants............................. 24
[Section 2.04. Cancellation of Warrants................................... 26
Section 2.05. Discontinuance or Modification of Index.................... 27
Section 2.06. Designation of Agent for Receipt of Notice................. 28
[Section 2.07. Extraordinary Events....................................... 28
[Section 2.08. Temporary Suspension of the Right to Exercise the Warrants. 28
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders....................................... 28
Section 3.02. Holder or Owner of Warrant May Enforce Rights.............. 29
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent.............................................. 29
Section 4.02. Certain Duties of the Warrant Agent........................ 30
Section 4.03. Conditions of Warrant Agent's Obligations.................. 30
Section 4.04. Compliance With Applicable Laws............................ 33
Section 4.05. Corporate Warrant Agent Required; Eligibility.............. 33
Section 4.06. Resignation and Removal; Appointment of Successor.......... 34
Section 4.07. Acceptance of Appointment by Successor..................... 35
Section 4.08. Merger, Conversion, Consolidation or Succession to Business 36
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the Corporation and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions................................................. 36
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Index Warrant Agreement....................... 38
Section 6.02. Form of Approval of Supplemental Agreements by Owners
or Holders................................................. 40
Section 6.03. Effect of Supplemental Agreements.......................... 40
Section 6.04. Reference in Warrants to Supplemental Agreements........... 40
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ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National Securities Exchange........ 40
Section 7.02. Governmental Approvals..................................... 41
Section 7.03. Payment of Cash Settlement Value [or Cancellation Amount].. 41
Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys.......... 41
Section 7.05. Corporate Existence........................................ 42
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants............................. 43
Section 8.02. Payment of Taxes........................................... 43
Section 8.03. Notices and Demands to the Corporation and Warrant Agent... 43
Section 8.04. Addresses for Notices...................................... 43
Section 8.05. Notices to Owners and Holders.............................. 43
Section 8.06. GOVERNING LAW.............................................. 44
Section 8.07. Benefits of Index Warrant Agreement........................ 44
Section 8.08. Successors and Assigns..................................... 44
Section 8.09. Index Warrant Agreement and Warrants Solely Corporate
Obligations................................................ 44
Section 8.10. Severability............................................... 45
Section 8.11. Headings................................................... 45
Section 8.12. Counterparts............................................... 45
Section 8.13. Inspection of Index Warrant Agreement...................... 45
EXHIBITS
Exhibit A Form of Warrant Certificate
Exhibit B-1 Form of Exercise Notice from Depository Participant
Exhibit B-2 Form of Exercise Notice from Holder of Definitive Warrant
Certificate
Exhibit C Form of Rejection Notice
Exhibit D Form of Confirmation of Exercise
Exhibit E-1 Form of Depository Participant Certificate
Exhibit E-2 Form of Holder Certificate
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INDEX WARRANT AGREEMENT
INDEX WARRANT AGREEMENT, dated as of ________ __, 200__ (as
modified, amended or supplemented, this "Agreement"), between UBS AG, a
corporation organized and existing under the laws of Switzerland (the
"Corporation"), and [NAME OF WARRANT AGENT], a [banking association]
[corporation] organized and existing under the laws of ______________, as
Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Corporation proposes to sell [put] [call] warrants
(each, a "Warrant") representing the right to receive from the Corporation an
amount in [U.S. dollars (specify other currency if applicable)] to be determined
by reference to [decreases] [increases] in the [(insert name of security index
or describe portfolio of specified stocks or other securities)] (the "Index");
and
WHEREAS, the Corporation desires the Warrant Agent to act on behalf
of the Corporation, and the Warrant Agent is willing so to act, in connection
with the issuance, transfer, exchange, exercise and cancellation of the
Warrants, and the Corporation desires to set forth herein, among other things,
the provisions of the Warrants and the terms and conditions under which they may
be issued, transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES
Section 1.01. The Warrants; Issuance of Warrants; Book-Entry
Procedures; Successor Depository. (a) Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to receive the Cash
Settlement Value (as defined in Section 2.02(g)) [or
the Cancellation Amount (as defined in Section 2.04(b)), as the case may be,] of
such Warrant. Such Cash Settlement Value [or Cancellation Amount, as the case
may be,] shall be payable in [U.S. dollars (specify other currency if
applicable)]. In no event shall any registered holder of a Warrant (each, a
"Holder") or any Owner (as defined in Section 1.01(c)) be entitled to receive
any interest on any Cash Settlement Value [or Cancellation Amount, as the case
may be], and the Warrants shall not entitle the Holders or Owners thereof to any
of the rights of the holder of any of the securities on which the Index is based
(the "Underlying Securities") or any other securities. No Warrant shall require
or entitle the Holder or Owner thereof to sell, deliver, purchase or take
delivery of any Underlying Securities or any other securities to or from the
Corporation, nor shall the Corporation be under any obligation to purchase or
take delivery of, or sell or deliver, any such securities to or from the Holders
or Owners thereof.
(b) The Warrants shall constitute direct, unconditional and
unsecured obligations of the Corporation.
(c) The Warrants shall initially be issued in book-entry form and
represented by one or more global certificates (each, a "Global Warrant
Certificate"). Owners of beneficial interests in a Global Warrant Certificate
(each, an "Owner") shall not be entitled to receive definitive certificates
evidencing the Warrants; provided, however, that the Corporation shall issue
Warrants in definitive form (each, a "Definitive Warrant Certificate", and with
the Global Warrant Certificates, the "Warrant Certificates") in exchange for a
Global Warrant Certificate if (i) the Depository (as defined in Section 1.01(d))
has notified the Corporation that it is unwilling or unable to continue as
Depository for such Global Warrant Certificate or if at any time it has ceased
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when it is required to be so registered in order to act as
Depository, and a successor Depository is not appointed by the Corporation
within 90 days, (ii) the Corporation at any time shall determine to have the
Warrants represented by Definitive Warrant Certificates and shall execute and
deliver to the Warrant Agent a written order signed in the name of the
Corporation by its Chairman of the Board, its
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Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary (each such order, a
"Corporation Order") stating that the Corporation wishes to issue Warrants in
definitive form in exchange for such Global Warrant Certificate, or (iii) there
shall have occurred and be continuing a default in the payment of the Cash
Settlement Amount [or Cancellation Amount, as the case may be,] with respect to
the Warrants. In any such instance, and in accordance with the provisions of
this Agreement, each Owner shall be entitled to have registered in its name the
number of Warrants in definitive form equivalent to such Owner's beneficial
interest in such Global Warrant Certificate and shall be entitled to physical
delivery of Definitive Warrant Certificates representing such Warrants by the
Depository Participant or Indirect Participant (each as defined in Section
1.01(d)) through which such Owner's beneficial interest is reflected.
(d) Each Global Warrant Certificate shall initially be registered
in the name of, and the Holder of each Warrant represented by such Global
Warrant Certificate shall be, [The Depository Trust Company] or its agent (the
"Depository", which term shall include any nominee of the Depository and any
successor depository selected by the Corporation as provided in Section
1.01(e)), and shall be deposited with the Depository or its agent for credit to
the accounts of the Depository Participants as shown on the records of the
Depository from time to time. The Warrant holdings of Depository Participants
shall be recorded on the books of the Depository. The Warrant holdings of
Indirect Participants and of Owners who are customers of Depository Participants
shall be reflected on the books and records of such Depository Participants and
shall not be known to the Warrant Agent, the Corporation or the Depository. The
Warrant holdings of Owners who are customers of Indirect Participants shall be
reflected on the books and records of such Indirect Participants and shall not
be known to the Warrant Agent, the Corporation, the Depository Participants or
the Depository. Neither the Corporation nor the Warrant Agent shall have any
responsibility or liability for any aspect of the records relating to beneficial
ownership interests in a Global Warrant Certificate or for maintaining,
supervising or reviewing any records relating to any such beneficial ownership
interest. As used herein, the term "Depository
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Participant" shall include any participant in the Depository's system and, for
purposes of this Agreement, shall also mean any participant in the book-entry
system of any successor Depository. As used herein, the term "Indirect
Participant" shall include any other bank, securities dealer, trust company or
other Person (as defined below) that clears or maintains a custodial
relationship with a Depository Participant, either directly or indirectly. As
used herein, the term "Person" shall include any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
(e) The Corporation may from time to time select a new Person to
act as Depository and, if such selection is made, the Corporation shall promptly
give the Warrant Agent and the existing Depository notice to such effect
identifying the new Depository. As promptly as practicable thereafter, the
Depository shall deliver each Global Warrant Certificate then held by it to the
Warrant Agent, and the Warrant Agent shall register the transfer of such Global
Warrant Certificate to the new Depository as provided in Section 1.04.
Appropriate changes may be made in each Global Warrant Certificate, and in the
notice of exercise and the related notices delivered in connection with an
exercise or deemed exercise of Warrants to reflect the selection of the new
Depository.
Section 1.02. Form; Denominations; Execution, Countersignature,
Delivery and Dating of Global Warrant Certificates. (a) At any time and from
time to time after the execution and delivery of this Agreement, the Corporation
may deliver one or more Global Warrant Certificates, each representing any
integral number of Warrants [not exceeding ________________ Warrants originally
issued,] executed by the Corporation as set forth in Section 1.02(b), to the
Warrant Agent for countersignature, together with a Corporation Order for the
countersignature and delivery of such Warrants, and the Warrant Agent shall
manually countersign and deliver such Warrants in accordance with such
Corporation Order. During such time as Warrants shall be represented by Global
Warrant Certificates, the Corporation may issue additional Warrants in
accordance with the terms of this Agreement either by issuing an additional
Global Warrant Certificate
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or by issuing a new Global Warrant Certificate in exchange for the existing
Global Warrant Certificate, provided that any such exchange shall conform to the
requirements set forth in Section 1.04(f).
(b) Each Global Warrant Certificate, whenever issued, shall be in
registered form substantially in the form of Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. Each Global Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved on steel engraved borders or
otherwise reproduced in any other manner as may be approved by the officers
executing the same (such execution to be conclusive evidence of such approval)
and may have imprinted or otherwise reproduced thereon such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the officers of the Corporation executing the same may approve (such execution
to be conclusive evidence of such approval) and that are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Global Warrant Certificate shall be
signed on behalf of the Corporation by its Chairman of the Board, its Vice
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any such officer on any Global Warrant Certificate
may be either manual or facsimile. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Global Warrant Certificate that has
been duly countersigned and delivered by the Warrant Agent.
(c) No Global Warrant Certificate shall be entitled to any benefit
under this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, unless such Global Warrant Certificate
has been countersigned by the Warrant Agent. Such signature by the Warrant Agent
upon any Global Warrant Certificate executed by the Corporation shall be
conclusive evidence, and the only evidence, that such Global Warrant
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Certificate so countersigned has been duly issued hereunder.
(d) Any Global Warrant Certificate bearing the manual or facsimile
signatures of individuals who were at the time of such signature the proper
officers of the Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Global Warrant Certificate or did not hold
such offices at the date of such Global Warrant Certificate.
(e) Each Global Warrant Certificate shall be dated the date of its
countersignature.
Section 1.03. Definitive Warrant Certificates. (a) Any Definitive
Warrant Certificate issued in accordance with Section 1.01(c), whenever issued,
shall be in registered form substantially in the form of Exhibit A, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement or necessary or desirable for individual
Definitive Warrant Certificates, provided that each such Definitive Warrant
Certificate shall have imprinted on the reverse thereof the Exercise Notice
substantially in the form of Exhibit B-2. Each Definitive Warrant Certificate
may represent any integral number of Warrants [not exceeding ________________
Warrants originally issued], shall be printed, lithographed, typewritten,
mimeographed or engraved on steel engraved borders or otherwise reproduced in
any other manner as may be approved by the officers executing the same (such
execution to be conclusive evidence of such approval), and may have imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification or designation and such legends or endorsements as the officers
of the Corporation executing the same may approve (such execution to be
conclusive evidence of such approval) and that are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any securities exchange on which the Warrants may be listed, or of
the Depository, or to conform to usage. Each Definitive Warrant Certificate
shall be signed on behalf of the Corporation upon the same conditions, in
substantially the same manner and with the same effect as
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set forth in Section 1.02 with respect to Global Warrant Certificates.
(b) Each Definitive Warrant Certificate, when so signed on behalf
of the Corporation, shall be delivered to the Warrant Agent together with a
Corporation Order for the countersignature and delivery of such Warrants, and
the Warrant Agent shall manually countersign and deliver such Warrants in
accordance with such Corporation Order upon the same conditions, in
substantially the same manner and with the same effect as set forth in Section
1.02 with respect to Global Warrant Certificates. Each Definitive Warrant
Certificate shall be dated the date of its countersignature.
(c) No Definitive Warrant Certificate shall be entitled to any
benefit under this Agreement or be valid or obligatory for any purpose, and no
Warrant evidenced thereby shall be exercisable, unless such Definitive Warrant
Certificate has been countersigned by the Warrant Agent. Such signature by the
Warrant Agent upon any Definitive Warrant Certificate executed by the
Corporation shall be conclusive evidence, and the only evidence, that such
Definitive Warrant Certificate so countersigned has been duly issued hereunder.
(d) Any Definitive Warrant Certificate bearing the manual or
facsimile signatures of individuals who were at the time of such signature the
proper officers of the Corporation shall bind the Corporation, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Definitive Warrant Certificate or did
not hold such offices at the date of such Definitive Warrant Certificate.
(e) Definitive Warrant Certificates delivered in exchange for a
Global Warrant Certificate shall be registered in such names and addresses
(including tax identification numbers) and in such denominations as shall be
requested in writing by the Depository or its nominee in whose name such Global
Warrant Certificate is registered, upon written certification to the Corporation
and the Warrant Agent, in form satisfactory to each of them, of the existing
beneficial ownership interests in such Global Warrant Certificate.
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(f) The Holder of any Warrant represented by a Definitive Warrant
Certificate shall be the Person in whose name such Definitive Warrant
Certificate is registered in the Warrant Register (as defined in Section 1.04)
at such time.
Section 1.04. Maintenance of Warrant Register; Registration of
Transfers and Exchanges of Global Warrant Certificates. (a) The Corporation
shall cause to be kept at the Warrant Agent Office (as defined in Section
1.04(b)) a register (the "Warrant Register"), which may be maintained
electronically and in which, subject to such reasonable regulations as it may
prescribe, the Corporation shall provide for the registration and registration
of transfer, exchange, exercise and cancellation of Warrants. The Warrant Agent
is hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and transfers and exchanges of Warrant Certificates as herein
provided.
(b) A Warrant Certificate may be transferred at the option of the
Holder thereof upon surrender of such Warrant Certificate at the office or
agency of the Warrant Agent maintained for the purpose of transferring,
exchanging, exercising and canceling the Warrants, which shall be south of
Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant
Agent Office"), and which is, on the date of this Agreement,
_______________________, New York, New York, _____, Attention: [Corporate Trust
Department], or at the office of any successor Warrant Agent as provided in
Article IV. Upon any such registration of transfer, the Corporation shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02 or 1.03, as the case may be, in the name of the designated
transferee a new Global Warrant Certificate or Definitive Warrant Certificate,
as the case may be, of like tenor, of any authorized denomination and
representing in the aggregate a like number of unexercised Warrants as evidenced
by such Warrant Certificate at the time of such registration of transfer, and
bearing a number not contemporaneously outstanding.
(c) A Warrant Certificate may be exchanged at the option of the
Holder thereof for other Global Warrant Certificates or Definitive Warrant
Certificates, as the
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case may be, of like tenor, of any authorized denomination and representing in
the aggregate a like number of unexercised Warrants, upon surrender of such
Warrant Certificate at the Warrant Agent Office. Whenever any Warrant
Certificate is so surrendered for exchange, the Corporation shall execute, and
the Warrant Agent shall countersign and deliver, as provided in Section 1.02 or
1.03, as the case may be, the Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, that the Holder of such exchanged Warrant
Certificate is entitled to receive and bearing a number not contemporaneously
outstanding.
(d) Any Warrant Certificate presented or surrendered for
registration of transfer or for exchange shall be duly endorsed or accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Warrant Agent and the Corporation, duly signed by the registered Holder thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by a bank or trust company, by a
broker or dealer that is a member of the National Association of Securities
Dealers, Inc. or by a member of a national securities exchange.
(e) Except as otherwise provided herein or in a Global Warrant
Certificate, the Warrant Agent shall register the transfer of such Global
Warrant Certificate on the records of the Warrant Agent only to the Depository,
to a nominee of the Depository, to a successor Depository or to a nominee of the
successor Depository.
(f) A Global Warrant Certificate may be exchanged for a new Global
Warrant Certificate to reflect the issuance by the Corporation of additional
Warrants[; provided, however, that in no event shall the number of Warrants
represented by any Global Warrant Certificate exceed ___________________
originally issued]. To effect such an exchange, the Corporation shall deliver to
the Warrant Agent a new Global Warrant Certificate duly executed on behalf of
the Corporation as provided in Section 1.02, together with a Corporation Order
for the countersignature and delivery of such Warrants. The Warrant Agent shall
countersign such new Global Warrant Certificate as provided in Section 1.02 and
in accordance with such Corporation Order, and shall deliver such new
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Global Warrant Certificate to the Depository in exchange for, and upon receipt
of, the Global Warrant Certificate then held by the Depository. The Warrant
Agent shall cancel the Global Warrant Certificate delivered to it by the
Depository and return the canceled Global Warrant Certificate to the
Corporation.
(g) All Warrant Certificates issued upon any registration of
transfer or exchange of Global Warrant Certificates or Definitive Warrant
Certificates, as the case may be, shall be valid obligations of the Corporation,
evidencing the same obligations of the Corporation and entitled to the same
benefits under this Agreement, as the Warrant Certificates surrendered upon such
registration of transfer or exchange. The Warrant Agent shall not be required to
effect any exchange or transfer that would result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant.
(h) No service charge shall be made for any registration of
transfer or exchange of Warrant Certificates, but the Corporation may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such transfer or
exchange.
Section 1.05. Mutilated, Destroyed, Lost and Stolen Warrant
Certificates. (a) If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Corporation shall execute, and the Warrant Agent shall
countersign and deliver in exchange therefor, as provided in Section 1.02 or
1.03, as the case may be, a new Warrant Certificate of like tenor representing a
like number of unexercised Warrants and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered by a Holder of a Warrant
Certificate to the Corporation and the Warrant Agent (i) evidence to their
satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, and (iii) funds sufficient to cover any
cost or expense to the Corporation (including any fees charged by the Warrant
Agent) relating to the issuance of a new
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Warrant Certificate, then, in the absence of notice to the Corporation or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Corporation shall execute, and the Warrant Agent shall
countersign and deliver, as provided in Section 1.02 or 1.03, as the case may
be, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new
Warrant Certificate of like tenor representing a like number of unexercised
Warrants and bearing a number not contemporaneously outstanding.
(c) If the Warrants evidenced by any such mutilated, destroyed,
lost or stolen Warrant Certificate have been exercised, or have been or are
about to be deemed to be exercised, the Corporation in its discretion may,
instead of issuing a new Warrant Certificate, treat the same as if it had
received written irrevocable notice of exercise in good form in respect thereof,
as provided herein.
(d) Upon the issuance of any new Warrant Certificate under this
Section, the Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
(e) Every new Warrant Certificate issued pursuant to this Section
1.05 in lieu of any mutilated, destroyed, lost or stolen Warrant Certificate
shall constitute an original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
(f) The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 1.06. Cancellation of Warrants. (a) If the Corporation shall
purchase or otherwise acquire
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Warrants represented by a Global Warrant Certificate, such Warrants may, at the
option of the Corporation and upon notification to the Warrant Agent, be
surrendered free through a Depository Participant for credit to the Warrant
Account (as defined in Section 2.01(b)) and if so credited, the Warrant Agent
shall promptly note the cancellation of such Warrants by notation on the records
of the Warrant Agent and on the Warrant Register.
(b) When all of the Warrants represented by any Global Warrant
Certificate have been exercised by the Owner thereof, automatically exercised or
otherwise canceled, and upon receipt of the same by the Warrant Agent, the
Warrant Agent shall promptly cancel such Global Warrant Certificate.
(c) The Corporation may at any time deliver to the Warrant Agent
for cancellation any Definitive Warrant Certificates previously countersigned
and delivered hereunder that the Corporation may have acquired in any manner
whatsoever, and the Warrant Agent shall promptly cancel all Definitive Warrant
Certificates so delivered.
(d) All Warrant Certificates surrendered for exercise,
registration of transfer or exchange or cancellation, if surrendered to any
Person other than the Warrant Agent, shall be delivered to the Warrant Agent,
and the Warrant Agent shall promptly cancel all such Warrant Certificates and
all other Warrant Certificates surrendered to it for exercise, registration of
transfer or exchange or cancellation.
(e) No Warrant Certificate shall be countersigned in lieu of or in
exchange for any Warrant Certificate canceled as provided in this Section 1.06
except as expressly permitted by this Agreement. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Corporation requests their return to it.
ARTICLE II
[EXERCISE PRICE,] DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants; Method of Exercise; Minimum [and
Maximum] Exercise Amounts; Notice of
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Exercise. (a) Subject to the limitations described herein, each Warrant may be
exercised in whole but not in part on any New York Business Day (as defined in
Section 2.01(f)) from [its date of issuance (specify other date if applicable)]
until [3:00 P.M.], New York City time, on the earlie[st] of (i) [______________
(specify date upon which right to exercise Warrants expires)] or, if such date
is not a New York Business Day, on the next succeeding New York Business Day
(the "Expiration Date"), [or] (ii) the date of automatic exercise as provided in
Section 2.03 [or (iii) the date of cancellation as provided in Section 2.04][;
provided that the Corporation may temporarily suspend the right of the Holders
to exercise their Warrants pursuant to the provisions of Section 2.08]. [No
exercise price shall be payable by any Holder or Owner in connection with the
exercise of any Warrant.] [The exercise price for each Warrant shall be $_____
and shall be payable [in U.S. dollars (specify other currency if applicable)]
(the "Exercise Price").]
(b) Except in the case of automatic exercise, each Warrant may be
exercised by:
(i) in the case of any Warrant represented by a Global Warrant
Certificate (each, a "Book-Entry Warrant"), (A) transfer of such Warrant
on the records of the Depository free to the Warrant Agent's Depository
Participant account (entitled ____________________), or such other account
of the Warrant Agent at the Depository as the Warrant Agent shall specify
(the "Warrant Account"), [and] (B) delivery to the Warrant Agent as
provided in Section 2.01(d)(i)(C) of written notice (an "Exercise Notice")
duly completed and executed by a Depository Participant acting on behalf
of the Owner of such Warrant [and (C) payment of the Exercise Price [in
U.S. dollars (specify other currency if applicable)] [in cash or by
cashier's check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] payable to the
account of the Corporation]; and
(ii) in the case of Warrants represented by a Definitive Warrant
Certificate (each, a "Certificated Warrant"), (A) surrender of such
Definitive Warrant Certificate to the Warrant Agent at the Warrant Agent
Office, [and] (B) delivery to the Warrant Agent
-13-
as provided in Section 2.01(d)(ii)(C) of an Exercise Notice duly completed
and executed by the Holder of such Warrant [and (C) payment of the
Exercise Price [in U.S. dollars (specify other currency if applicable)]
[in cash or by cashier's check or official bank check in New York Clearing
House funds] [by bank wire transfer in immediately available funds]
payable to the account of the Corporation];
provided, however, that each Exercise Notice is subject to rejection by the
Warrant Agent as provided herein.
(c) Not fewer than [specify minimum exercise amount] [nor more
than [specify maximum exercise amount]] Warrants may be exercised by or on
behalf of any one Owner or, in the case of Certificated Warrants, any one Holder
at any one time, except that no such minimum [or maximum] exercise amount shall
apply in the case of (i) the automatic exercise of any Warrants, or (ii) the
exercise of any Warrants on the Expiration Date.
(d) An Exercise Notice [may be conditioned as set forth in Section
2.02(b), but] shall [otherwise] be unconditional. Each Exercise Notice shall be
irrevocable and:
(i) in the case of any Book-Entry Warrant, shall (A) be in the
form of Exhibit B-1 hereto, [(B) shall include a certification by the
Depository Participant submitting such Exercise Notice that the Owners
affected by such Exercise Notice are not Index Country Residents (as
defined in Section 2.01(f))] and (C) shall be sent to the Warrant Agent in
writing at its address as set forth in such form of Exercise Notice or at
such other address as the Warrant Agent may specify from time to time by
notice given in accordance with Section 8.05; and
(ii) in the case of any Certificated Warrant, shall (A) be in the
form of Exhibit B-2 hereto and shall, unless otherwise agreed by the
Corporation and the Warrant Agent, be set forth on the reverse of the
Definitive Warrant Certificate representing such Certificated Warrant,
[(B) shall include a certification by the Holder of such Certificated
-14-
Warrants that such Holder is not an Index Country Resident] and (C) shall
be sent to the Warrant Agent in writing at its address as set forth in
such form of Exercise Notice or at such other address as the Warrant Agent
may specify from time to time by notice given in accordance with Section
8.05.
(e) Except as provided in Section 2.02(c), the Warrant Agent and
the Corporation shall be entitled to rely conclusively on any Exercise Notice
received by the Warrant Agent with no duty of inquiry by either of them.
(f) As used in this Agreement, "New York Business Day" means any
day other than a Saturday or Sunday or a day on which the [New York Stock
Exchange or American Stock Exchange (list any other relevant securities
exchanges)] is not open for securities trading or banking institutions generally
in The City of New York are authorized or required by law or executive order to
close; "Index Country Business Day" means any day other than (i) a Saturday or
Sunday or a day on which banking institutions generally in [(specify name of
Index country)] are authorized or required by law or executive order to close or
(ii) a day on which the [(list names of relevant exchanges)] are not open for
business[; and "Index Country Resident" means a resident of, or any corporation
or other Person organized under the laws of [(specify name of Index country)],
its territories, its possessions or other areas subject to its jurisdiction].
Section 2.02. Exercise of Warrants. (a) Except in the case of
automatic exercise as provided in Section 2.03 [or cancellation as provided in
Section 2.04] and subject to Section 2.02(c)([ii]) [and 2.02(f)], the exercise
date (the "Exercise Date") for a Warrant shall be (i) the New York Business Day
on which the Warrant Agent receives delivery of such Warrant to the Warrant
Account, in the case of Book-Entry Warrants, or of the Definitive Warrant
Certificate representing such Warrant at the Warrant Agent Office, in the case
of Certificated Warrants, [and] an Exercise Notice relating to such Warrant in
good order [and payment of the Exercise Price in the manner specified in Section
2.01(b)], if such receipt occurs at or prior to [3:00] P.M., New York City time,
on such New York Business Day, and (ii) otherwise the New York Business Day next
succeeding the day on which the Warrant Agent receives
-15-
such Warrant[, the Exercise Price] and such Exercise Notice, which next
succeeding New York Business Day shall be the day on which such Warrant[,
Exercise Price] and Exercise Notice shall be deemed to have been received. If
any Exercise Notice[, the related Exercise Price] or the Warrants to which such
Exercise Notice relates are received after [3:00] P.M., New York City time, on
the Expiration Date, such Exercise Notice shall be void and of no effect and
shall be deemed not to have been delivered. Except in the case of automatic
exercise as provided in Section 2.03, the "Valuation Date" for a Warrant shall
be the first Index Country Business Day next succeeding the Exercise Date of
such Warrant. [The "Designated Exercise Date" for a Warrant shall be the date
that, but for the provisions of Section 2.02(f), would be the Exercise Date for
such Warrant in accordance with this Section 2.02(a).]
[(b) Notwithstanding anything in this Agreement to the contrary, if
a Depository Participant, in the case of Book-Entry Warrants, or a Holder, in
the case of Certificated Warrants, has specified in its Exercise Notice that
such Exercise Notice is conditional (a "Conditional Exercise Notice"), then such
Conditional Exercise Notice shall be void and of no effect, and shall be
disregarded for all purposes of this Agreement, if [Describe the terms upon
which the Exercise Notice may be conditional, which may be as follows: the Spot
Index (as defined in Section 2.02(g)) on the day that, but for the provisions of
this Section 2.02(b), would be the Valuation Date for such Warrants is more than
__________ [above] [below] the Spot Index on the [Designated] Exercise Date of
such Warrants (or, if the [Designated] Exercise Date is not an Index Country
Business Day, on the immediately preceding Index Country Business Day) (the
"Reference Value").]
(c) Following receipt of proper delivery of any Warrant[, the
Exercise Price] and the Exercise Notice related to such Warrant in accordance
with Section 2.01(b), the Warrant Agent shall:
[(i) deposit all funds received by it in payment of the Exercise
Price of such Warrant to the account of the Corporation maintained with it
for such purpose (unless otherwise instructed in writing by the
Corporation), and advise the Corporation by telephone and in writing, by
facsimile transmission or
-16-
otherwise, at the end of each day on which any such payment is received of
the amount so deposited to its account;]
(ii)(A) in the case of a Book-Entry Warrant, promptly determine
whether such Exercise Notice has been duly completed and is in proper form
and verify that the Person that executed such Exercise Notice is listed as
a Depository Participant in the most recent published edition of the
Depository's Eligible Corporate Securities Book (or the comparable
publication of any successor Depository) and, if such Person is not listed
therein, make reasonable efforts to obtain verbal verification from the
Depository's Planning Department (telephone number 212-709-1000) (or the
comparable department of a successor Depository) that such Person is a
Depository Participant; and (B) in the case of a Certificated Warrant,
promptly determine whether such Exercise Notice has been duly completed
and is in proper form and whether the Definitive Warrant Certificate
representing such Warrant is in proper form;
(iii)(A) in the case of a Book-Entry Warrant, if the Warrant Agent
determines that such Exercise Notice has not been duly completed or is not
in proper form, or is unable through the procedures described in clause
([ii])(A) above to verify that the Person that submitted such Exercise
Notice is a Depository Participant, then the Warrant Agent shall reject
such Exercise Notice and shall send to the Depository Participant that
submitted such Exercise Notice a notice of rejection substantially in the
form of Exhibit C hereto (a "Rejection Notice") and redeliver the Warrants
to which such rejected Exercise Notice relates free through the facilities
of the Depository to the account from which they were transferred; and (B)
in the case of a Certificated Warrant, if the Warrant Agent determines
that such Exercise Notice has not been duly completed or is not in proper
form, or that the Definitive Warrant Certificate representing such Warrant
is not in proper form, then the Warrant Agent shall reject such Exercise
Notice and shall send a Rejection Notice to the Holder of such Warrants
and return such Definitive Warrant Certificate to such
-17-
Holder by first class mail at the expense of the Corporation;
(iv) by [5:00 P.M.], New York City time, on the New York Business
Day on which such Exercise Notice is received (or deemed to have been
received), notify the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) of (A) the total
number of Warrants in respect of which Exercise Notices were received (or
deemed to have been received) at or prior to [3:00 P.M.], New York City
time, on such date [and] (B) the number of such Exercise Notices that were
rejected by the Warrant Agent pursuant to clause ([iii]) above and the
aggregate number of Warrants to which such rejected Exercise Notices
relate[, and (C) the number of such Exercise Notices that were Conditional
Exercise Notices and the aggregate number of Warrants to which such
Conditional Exercise Notices relate];
[(v) if any of such Exercise Notices are Conditional Exercise
Notices, by [5:00 P.M.], New York City time, on the Valuation Date for
such Warrants (or, if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day), (A) determine the Reference
Value for such Warrants and the Spot Index for the date that, but for the
provisions of Section 2.02(b), would be the Valuation Date of such
Warrants; (B) determine whether any Conditional Exercise Notices have
become void pursuant to such Section 2.02(b); and (C) if so, promptly
notify the Corporation (and such other parties (not to exceed two) as the
Corporation shall designate in writing) and send a Rejection Notice to the
appropriate Depository Participant or Holder, as the case may be, and (x)
in the case of Book-Entry Warrants, redeliver such Warrants free through
the facilities of the Depository to the account from which they were
transferred or (y) in the case of Certificated Warrants, return such
Warrants to such Holder by first class mail at the expense of the
Corporation.]
(vi) by [5:00 P.M.], New York City time, on the Valuation Date for
such Warrants (or, if such Valuation Date is not a New York Business Day,
on the
-18-
next succeeding New York Business Day), determine the aggregate number of
Warrants covered by Exercise Notices that have not [become void pursuant
to Section 2.02(b) or] been rejected pursuant to clause ([iii]) above (the
"[Exercised] [Tendered] Warrants");
(vii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Tendered Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), determine
pursuant to Section 2.02(f) the number of such Tendered Warrants that
shall not be Delayed Exercise Warrants (such Tendered Warrants, the
"Exercised Warrants");]
(viii) by [5:00 P.M.], New York City time, on the Valuation Date for
the Exercised Warrants (or, if such Valuation Date is not a New York
Business Day, on the next succeeding New York Business Day), (A) determine
the Cash Settlement Value of the Exercised Warrants, (B) notify the
Corporation (and such other parties (not to exceed two) as the Corporation
shall designate in writing) of the aggregate Cash Settlement Value with
respect to such Exercised Warrants, and (C) send notice of confirmation of
exercise in substantially the form of Exhibit D hereto to the appropriate
Depository Participant or Holder, as the case may be; and
(ix) promptly deliver a copy of each such Exercise Notice to the
Corporation and advise the Corporation of such other matters relating to
any of the Warrants covered thereby, whether or not they constitute
[Tendered Warrants or] Exercised Warrants, as the Corporation shall
reasonably request.
(d) At or before [3:00 P.M.], New York City time, on the [fifth]
New York Business Day following the Valuation Date for any Exercised Warrants
(or, if such Valuation Date is not a New York Business Day, on the [sixth] New
York Business Day after such Valuation Date) (such date, with respect to such
Exercised Warrants, the "Settlement Date"), the Corporation shall make available
to the Warrant Agent funds in an amount equal to, and for the payment of, the
aggregate Cash Settlement Value of such Exercised Warrants. On the New York
Business Day on which
-19-
the Corporation has made adequate funds available to the Warrant Agent at or
prior to [3:00 P.M.], New York City time, the Warrant Agent shall make payment
available (i) if the Exercised Warrants are Book-Entry Warrants, in the form of
a wire transfer to the appropriate Depository Participant after [3:00 P.M.], New
York City time, but prior to the close of business, on such day, such payment to
be in the amount of the aggregate Cash Settlement Value of the Exercised
Warrants exercised by such Depository Participant, and (ii) if the Exercised
Warrants are Certificated Warrants, in the form of one or more cashier's checks
or official bank checks to each appropriate Holder after [3:00 P.M.], New York
City time, but prior to the close of business, on such day, such payment to be
in the amount of the Cash Settlement Value of the Exercised Warrants exercised
by such Holder. In the case of payments by the Warrant Agent to a Depository
Participant, the Warrant Agent shall have no responsibility for the crediting by
such Depository Participant of the Cash Settlement Value of such Warrants to the
appropriate Owners.
(e) (i) The Warrant Agent shall cause its records, which may be
kept electronically, to be marked to reflect the reduction in the number of
Warrants evidenced by each Global Warrant Certificate by the number of such
Warrants for which payment has been made available as provided in Section
2.02(d) promptly after such payment has been made available. In the absence of
manifest error, the Warrant Agent's records shall be conclusive evidence as to
such matters.
(ii) If any Definitive Warrant Certificate shall be surrendered to
the Warrant Agent for exercise of fewer than all the Warrants represented
thereby, the Corporation shall execute, and the Warrant Agent shall countersign,
as provided in Section 1.02 or 1.03, as the case may be, and deliver to the
Holder of such Warrants by first class mail at the expense of the Corporation a
new Definitive Warrant Certificate of like tenor representing all Warrants
remaining unexercised after such exercise and bearing a number not
contemporaneously outstanding.
[(f) The Corporation may, at its sole option, elect to limit the
aggregate number of Warrants for which any Designated Exercise Date shall be the
Exercise Date to
-20-
a number not less than ________________ (the "Maximum Exercisable Number").
(i) The Corporation may, at its sole option, notify the Warrant
Agent in writing (including by facsimile transmission) not later than
[3:00 P.M.], New York City time, on the Valuation Date with respect to any
Tendered Warrants (or, if such Valuation Date is not a New York Business
Day, on the next succeeding New York Business Day), that the Corporation
has elected to exercise its option under this Section 2.02(f) to limit the
number of such Tendered Warrants for which the Exercise Date to which such
Valuation Date relates shall be the Designated Exercise Date for such
Warrants to a number (the "Elected Maximum Number") not smaller than the
Maximum Exercisable Number. If the Warrant Agent shall not have received
such notice by such time, none of the following provisions in this Section
2.02(f) shall apply to such Tendered Warrants, such Designated Exercise
Date shall be the Exercise Date for such Tendered Warrants, and all of
such Tendered Warrants shall be deemed to be "Exercised Warrants" for
purposes of this Agreement.
(ii) If the Warrant Agent shall have received the notice
contemplated by clause (i) above by the time specified in such clause (i),
then prior to [5:00 P.M.], New York City time, on such Valuation Date (or,
if such Valuation Date is not a New York Business Day, on the next
succeeding New York Business Day), the Warrant Agent shall select by lot
from all such Tendered Warrants, subject to clause (iii) below, Tendered
Warrants for which the Exercise Date shall be such Designated Exercise
Date in an aggregate number equal to the Elected Maximum Number; provided
that if, as a result of such selection, any Owner or Holder, as the case
may be, would be deemed to have exercised less than [(specify minimum
exercise amount)] Warrants, then the Warrant Agent shall first select
additional Tendered Warrants of such Owners or Holders so that no such
Owner or Holder shall be deemed to have exercised fewer than [(specify
minimum exercise amount)] Warrants. Only the Tendered Warrants so selected
shall be deemed to be "Exercised Warrants" for purposes of Section
2.02(c). The Tendered Warrants not so selected shall be referred to herein
-21-
as "Delayed Exercise Warrants" and shall be subject to exercise as
provided in clause (iii) below.
(iii) For purposes of this Section 2.02, each Delayed Exercise
Warrant shall be deemed to have a new Designated Exercise Date on the New
York Business Day next succeeding its original Designated Exercise Date,
and this Section 2.02 shall apply to such Delayed Exercise Warrants as if
one or more Exercise Notices with respect to the Delayed Exercise Warrants
had been received by the Warrant Agent prior to [3:00 P.M.], New York City
time, on such New York Business Day, provided that (x) any Delayed
Exercise Warrant with respect to which any such deemed Designated Exercise
Date is on or after the earlier of the Expiration Date and the Delisting
Date shall be subject to automatic exercise as provided in Section 2.03[,
and (y) the Reference Value for any Delayed Exercise Warrant covered by a
Conditional Exercise Notice shall in any event be determined by reference
to the original Designated Exercise Date therefor (or, if such date is not
an Index Country Business Day, on the immediately preceding Index Country
Business Day)]; provided, however, that, other than in the case of
automatic exercise [or cancellation], if the aggregate number of such
Delayed Exercise Warrants, together with any additional Tendered Warrants
for which the Designated Exercise Date is such New York Business Day shall
again exceed the Maximum Exercisable Number, the provisions of this
Section 2.02(f) shall apply, mutatis mutandis, to the exercise of such
Delayed Exercise Warrants and such additional Tendered Warrants, provided
that such Delayed Exercise Warrants shall be given priority over such
additional Tendered Warrants in the selection pursuant to clause (ii)
above, and among such Delayed Exercise Warrants, priority in such
selections shall be given to Warrants in the order of their original
Designated Exercise Dates, with Warrants having the same original
Designated Exercise Date being selected by lot as described in clause (ii)
above.
(iv) In connection with any issuance by the Corporation of
additional Warrants under this Agreement, the Corporation shall have the
right, but
-22-
shall not be obligated, to increase the Maximum Exercisable Number.]
(g) For purposes of this Agreement:
The "Cash Settlement Value" of any Warrant that is exercised
(whether exercised automatically or by Exercise Notice) shall mean [_____
(specify fraction)] of the U.S. dollar equivalent (rounded to the nearest
dollar) of the amount, if any, by which [(i) the Strike Index (as defined
below) exceeds (ii) the Spot Index on the Valuation Date with respect to
such Exercised Warrant] [(i) the Spot Index on the Valuation Date with
respect to such Exercised Warrant exceeds (ii) the Strike Index (as
defined below)]; provided that if such amount is less than zero, the Cash
Settlement Value shall be zero.
The "Strike Index" of a Warrant shall mean [Insert amount or method
for determining amount].
The "Spot Index" on any date shall mean [Insert method for
determining amount].
The exchange rate (or manner of calculating such rate) for
conversion of the Cash Settlement Value, [the Cancellation Amount,] the
Strike Index, the Spot Index and/or the value of Underlying Securities, as
applicable, into U.S. dollars shall be [(specify such rate or manner of
calculating such rate)] and shall be determined by the Warrant Agent.
"U.S. dollars", "U.S.$" or "$" are references to the currency of the
United States of America.
"[Index currency]" or "[_______________]" are references to the
currency of [(specify name of Index country)].
(h) Any notice to be given to the Corporation by the Warrant Agent
pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly
confirmed in writing) or telecopy (receipt to be promptly confirmed by
telephone).
-23-
Section 2.03. Automatic Exercise of Warrants. (a) [Unless previously
canceled pursuant to Section 2.04,] all Warrants with respect to which
(i) there has been no proper delivery of Warrants to the Warrant
Account, in the case of Book-Entry Warrants, or of Definitive Warrant
Certificates to the Warrant Agent Office, in the case of Certificated
Warrants[, or no delivery of the Exercise Price as provided in Section
2.01(b)] or no valid Exercise Notice has been received by the Warrant
Agent at or prior to [3:00 P.M.], New York City time, on the earlier to
occur of (A) the Expiration Date for such Warrants and (B) the last New
York Business Day prior to the effective date on which the Warrants are
delisted from, or permanently suspended from trading on, the __________
Stock Exchange without being accepted for listing on or prior to such New
York Business Day on another United States national securities exchange
(such New York Business Day, the "Delisting Date"),
(ii) the Exercise Date has been postponed pursuant to Section
2.02(f) to a date on or after the earlier of the Expiration Date or the
Delisting Date,
[or (iii) [list other events causing automatic exercise of Warrants,
if applicable]]
will be automatically exercised on such Expiration Date or Delisting Date [or on
the date on which (specify other events leading to automatic exercise)] (any
such date, a "Deemed Exercise Date") without any requirement of notice of
exercise to the Warrant Agent. On the Deemed Exercise Date, all the Warrants
will be canceled and will represent only a right to receive the Cash Settlement
Value upon satisfaction of the requirements set forth in Section 2.03(b). The
Valuation Date for such Warrants shall be the first Index Country Business Day
next succeeding such Deemed Exercise Date.
(b) On the Valuation Date for the Warrants to be automatically
exercised in accordance with Section 2.03(a) (or, if such Valuation Date is not
a New York Business Day, on the next succeeding New York Business Day), the
Warrant Agent shall (i) determine the Cash Settlement Value of such
-24-
Warrants; (ii) by [5:00 P.M.], New York City time, on such Valuation Date (or,
if such Valuation Date is not a New York Business Day, on the next succeeding
New York Business Day) notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing) of the Cash
Settlement Value of such Warrants; and (iii) advise the Corporation of such
other matters relating to the automatically exercised Warrants as the
Corporation shall reasonably request.
(c) At or before [3:00 P.M.], New York City time, on the [eighth]
New York Business Day following the Valuation Date for any Warrants
automatically exercised in accordance with Section 2.03(a) (or, if such
Valuation Date is not a New York Business Day, on the [ninth] New York Business
Day after such Valuation Date) (such date, with respect to such Warrants, the
"Settlement Date"), the Corporation shall make available to the Warrant Agent
funds in an amount equal to, and for the payment of, [(y)] the aggregate Cash
Settlement Value of such automatically exercised Warrants [minus (y) the
aggregate Exercise Price with respect to such Warrants, provided that if such
amount is less than zero, no such funds shall be made available]. On the New
York Business Day on which the Corporation has made adequate funds available to
the Warrant Agent at or prior to [3:00 P.M.], New York City time, the Warrant
Agent shall make payment available (i) if the automatically exercised Warrants
are Book-Entry Warrants, in the form of a wire transfer to the appropriate
Depository Participant after [3:00 P.M.], New York City time, but prior to the
close of business, on such day, such payment to be in the amount of [(x)] the
aggregate Cash Settlement Value of the Warrants held at the time of automatic
exercise by such Depository Participant [minus (y) the aggregate Exercise Price
with respect to such Warrants, provided that if such amount is less than zero,
then no such payment shall be made], and (ii) if the automatically exercised
Warrants are Certificated Warrants, in the form of one or more cashier's checks
or official bank checks to each appropriate Holder after [3:00 P.M.], New York
City time, but prior to the close of business, on such day, such payment to be
in the amount of [(x)] the Cash Settlement Value of the Warrants registered in
the name of such Holder on the date of automatic exercise [minus (y) the
aggregate Exercise Price with respect to such Warrants, provided that if such
amount is less than zero, then no such payment shall be made];
-25-
provided, however, that the Warrant Agent shall withhold any such payment in
respect of any Warrant until the conditions set forth in Section 2.03(d) have
been satisfied with respect to such Warrant. In the case of payments by the
Warrant Agent to a Depository Participant, the Warrant Agent shall have no
responsibility for the crediting by such Depository Participant of the Cash
Settlement Value of such Warrants to the appropriate Owners.
(d) The Warrant Agent shall withhold payment of the Cash
Settlement Value with respect to any automatically exercised Warrant until:
(i) if such Warrant is a Book-Entry Warrant, [(A)] such Warrant is
delivered on the records of the Depository free to the Warrant Account
[and (B) the Warrant Agent receives at the Warrant Agent Office a written
certification substantially in the form of Exhibit E-1 hereto, dated no
earlier than the Deemed Exercise Date, executed by a Depository
Participant acting on behalf of the Owner of such Warrant, to the effect
that such Owner is not an Index Country Resident]; and
(ii) if such Warrant is a Certificated Warrant, [(A)] the
Definitive Warrant Certificate representing such Warrant is surrendered to
the Warrant Agent at the Warrant Agent Office, [and (B) the Warrant Agent
receives at the Warrant Agent Office a certification in the form of
Exhibit E-2 hereto, dated no earlier than the Deemed Expiration Date, to
the effect that the Holder of such Definitive Warrant Certificate is not
an Index Country Resident].
(e) When payment has been made in respect of all Warrants
represented by a Warrant Certificate, the Warrant Agent shall, promptly upon
receipt of such Warrant Certificate, cancel such Warrant Certificate and deliver
it to the Corporation.
[Section 2.04. Cancellation of Warrants. (a) [insert conditions and
effects of cancellation, if applicable].]
-26-
(b) [The "Cancellation Amount" of a Warrant shall mean [Insert
amount or method for determining amount].]
Section 2.05. Discontinuance or Modification of Index. (a) If the
Index is not calculated and announced by [name of Index publisher] (the "Index
Publisher") on any Valuation Date but is calculated and publicly announced by
another Person not affiliated with the Corporation and acceptable to the
Corporation (the "Third Party"), the applicable Cash Settlement Value [or
Cancellation Amount, as the case may be,] shall be calculated by reference to
the value of the closing quotation for the Index so calculated and announced by
the Third Party.
(b) If, prior to any Valuation Date, the Index Publisher or the
Third Party shall make a material change in the formula for or the method of
calculating the Index, the Corporation shall promptly appoint an investment or
commercial bank of international standing that is not an affiliate of the
Corporation (an "Independent Expert") who shall make such calculations as may be
required to determine the applicable Cash Settlement Value [or Cancellation
Amount, as the case may be,] using the formula and method of calculating the
Index as in effect prior to such change or modification.
(c) If, on any Valuation Date, neither the Index Publisher nor any
Third Party is calculating and disseminating the Index and neither is providing
any successor index, the Corporation shall promptly appoint an Independent
Expert who shall make such calculations as it determines may be required to
determine the applicable Cash Settlement Value [or Cancellation Amount, as the
case may be,] using the formula and method of calculating the Index as in effect
on the date the Index was last so calculated.
(d) If any of the events referred to in Sections 2.05(a) through
(c) shall occur, the Corporation shall promptly make available information
regarding the composition, method of calculation and current level of the Index
or successor index upon written request to the Corporation's offices at 299 Park
Avenue, New York, New York 10017, Attention: [Robert Dinerstein]. In addition,
the Corporation shall undertake reasonable efforts to ensure that such
information is publicly available. If the
-27-
Index Publisher shall elect to suspend or discontinue calculating or announcing
the Index, the Corporation shall so notify Holders by giving notice to the
Holders as their names and addresses appear in the Warrant Register.
Section 2.06. Designation of Agent for Receipt of Notice. The
Corporation may from time to time designate in writing to the Warrant Agent a
single designee for receipt of all notices required to be given by the Warrant
Agent to the Corporation pursuant to this Article II and all such notices
thereafter shall be given in the manner herein provided by the Warrant Agent to
such designee and each such notice shall be as effective as if given directly to
the Corporation.
[Section 2.07. Extraordinary Events. [(Specify conditions and
effects of extraordinary events, if applicable)].]
[Section 2.08. Temporary Suspension of the Right to Exercise the
Warrants. [(Specify conditions and method of temporary suspension of right to
exercise, if applicable)].]
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS
Section 3.01. Treatment of Holders. (a) The Corporation, the Warrant
Agent and any agent of the Corporation or the Warrant Agent may deem and treat
the Person in whose name each Global Warrant Certificate shall be registered in
the records of the Warrant Agent as the absolute Holder of all right, title and
interest in such Global Warrant Certificate (notwithstanding any notation of
ownership or other writing thereon) for all purposes hereunder and as the Person
entitled to exercise the rights represented by the Warrants evidenced thereby,
whether or not such Warrants shall be exercised or deemed to be exercised, and
neither the Corporation nor the Warrant Agent, nor any agent of the Corporation
or the Warrant Agent shall be affected by any notice to the contrary, except
that the Warrant Agent and the Corporation shall be entitled to rely on and act
pursuant to instructions of
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Depository Participants as contemplated by Article II of this Agreement.
(b) Prior to due presentment of a Definitive Warrant Certificate
for registration of transfer, the Corporation, the Warrant Agent and any agent
of the Corporation or the Warrant Agent may treat the Person in whose name such
Definitive Warrant Certificate is registered as the absolute Holder of all
right, title and interest in such Definitive Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for all
purposes hereunder and as the Person entitled to exercise the rights represented
by the Warrants evidenced thereby, whether or not such Warrants shall be
exercised or deemed to be exercised, and neither the Corporation, the Warrant
Agent nor any agent of the Corporation or the Warrant Agent shall be affected by
notice to the contrary.
Section 3.02. Holder or Owner of Warrant May Enforce Rights.
Notwithstanding any other provision of this Agreement, any Owner, in the case of
Book-Entry Warrants, and any Holder, in the case of Certificated Warrants,
without the consent of the Warrant Agent or the Owner or Holder of any other
Warrant, may, in and for such Owner's or Holder's own behalf, and for such
Owner's or Holder's own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation suitable to enforce, or
otherwise in respect of, such Owner's or Holder's right to exercise, and to
receive payment for, such Owner's or Holder's Warrants as provided in such
Warrants and in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
Section 4.01. Warrant Agent. The Corporation hereby appoints [name
of Warrant Agent] as the Warrant Agent of the Corporation in respect of the
Warrants upon the terms and subject to the conditions set forth herein and in
the Warrants, and [name of Warrant Agent] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon
it herein and in the Warrants and such further powers and authority acceptable
to it to act on behalf of the
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Corporation as the Corporation may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrants are subject to and governed by the terms and provisions hereof.
Section 4.02. Certain Duties of the Warrant Agent. (a) Except during
the continuation of a default in the performance by the Corporation of its
obligations in respect of the Warrants, the Warrant Agent undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Warrant Agent.
(b) No provision of this Agreement shall require the Warrant Agent
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 4.03. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations set forth herein upon and subject to the terms and
conditions hereof and of the Warrants, including the following, to all of which
the Corporation agrees and to all of which the rights hereunder of the Owners
and Holders from time to time of the Warrants shall be subject:
(a) The Corporation agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Corporation for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses, disbursements and advances (including
reasonable attorneys' fees and expenses and reasonable compensation,
expenses and disbursements of its agents) incurred by the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Corporation
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorneys'
fees and expenses)
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incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as such Warrant Agent hereunder or with respect to the Warrants, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligations of the Corporation under this
subsection (a) shall survive the exercise of the Warrants and the
resignation or removal of the Warrant Agent.
(b) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted or thing
suffered by it in reliance upon any Warrant, resolution, opinion, report,
request, notice, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to
have been presented or signed by the proper parties, provided that any
request or direction of the Corporation shall be sufficiently evidenced by
a Corporation Order delivered to the Warrant Agent, and any resolution of
the Board of Directors shall be sufficiently evidenced by a copy of the
resolution certified by the Secretary or an Assistant Secretary to have
been duly adopted by the Board of Directors of the Corporation, or by a
committee of such Board of Directors or an officer of the Corporation
appointed by the Board of Directors of the Corporation for such purpose,
and to be in full force and effect on the date of such certification and
delivered to the Warrant Agent (any such resolution, a "Board
Resolution").
(c) The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel to the Corporation, and the written opinion 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 such written opinion.
(d) The Warrant Agent shall not be bound to make any investigation
into the facts or matters stated in any Corporation Order or Board
Resolution, but the
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Warrant Agent, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(e) The Warrant Agent, and any of its officers, directors and
employees, in its individual or any other capacity, may become the Owner
or Holder of, or acquire any interest in, any Warrants or other
obligations of the Corporation, with the same rights that it or they would
have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in any
financial or other transaction with the Corporation and may act on, or as
depositary, trustee or agent for, any committee or body of Owners or
Holders of Warrants or other obligations of the Corporation as freely as
if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrants except as otherwise agreed
with the Corporation, nor shall it be obligated to segregate such monies
from other monies held by it, except as required by law.
(g) The Warrant Agent shall not be under any liability with
respect to the validity or sufficiency of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the
Warrants or the Warrant Certificates (except the countersignature
thereof).
(h) The recitals contained herein and in the Warrants (except as
to the Warrant Agent's countersignature thereon) shall be taken as the
statements of the Corporation, and the Warrant Agent assumes no
responsibility for the correctness thereof.
(i) The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Corporation of any of the Warrant
Certificates countersigned by the Warrant Agent and delivered by it
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to the Corporation pursuant to this Agreement or for the application by
the Corporation of any proceeds.
(j) The Warrant Agent shall have no duty or responsibility in case
of any default by the Corporation in the performance of its covenants or
agreements contained herein or in the Warrants or in the case of the
receipt of any written demand from an Owner or Holder of a Warrant with
respect to such default, including, without limitation, any duty or
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 8.03, to make any demand
upon the Corporation.
(k) In acting under this Agreement and in connection with the
Warrants, the Warrant Agent is acting solely as the agent of the
Corporation and does not assume any obligation or relationship of agency
or trust for or with any of the Owners or Holders of the Warrants.
Section 4.04. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
Section 4.05. Corporate Warrant Agent Required; Eligibility. The
Corporation agrees, for the benefit of the Owners or Holders from time to time
of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all of the Warrants have been exercised or are no longer exercisable,
which shall be a banking institution organized under the laws of the United
States of America or one of the states thereof and having an office or an
agent's office south of Chambers Street in the Borough of Manhattan, The City of
New York.
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Section 4.06. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Warrant Agent and no appointment of a successor
Warrant Agent pursuant to this Section 4.06 shall become effective until the
acceptance of appointment by the successor Warrant Agent under Section 4.07.
(b) The Warrant Agent may resign at any time by giving written
notice of such resignation to the Corporation specifying such resignation and
the date on which it desires such resignation to become effective, provided
that, without the consent of the Corporation, such date shall not be less than
90 days after the date on which such notice is given. If an instrument of
acceptance by a successor Warrant Agent shall not have been delivered to the
Warrant Agent within 90 days after the giving of such notice of resignation, the
resigning Warrant Agent may petition any court of competent jurisdiction for the
appointment of a successor Warrant Agent with respect to the Warrants.
(c) The Corporation may remove the Warrant Agent at any time by
giving written notice thereof to the Warrant Agent specifying such removal and
the date on which the Corporation desires such removal to become effective.
(d) If at any time:
(i) the Warrant Agent shall cease to be eligible to act as
such under Section 4.05 and shall fail to resign after the Corporation
shall have delivered a written request therefor, or
(ii) the Warrant Agent shall become incapable of acting as
such, or shall be adjudged a bankrupt or insolvent, or shall file a
voluntary petition in bankruptcy or make an assignment for the benefit of
its creditors or consent to the appointment of a receiver or custodian of
all or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar
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law, 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 or liquidation, or
(iii) the Corporation shall elect to remove the Warrant Agent,
provided that no default shall then exist with respect to the Warrants,
then in any such case, the Corporation by a Board Resolution may remove the
Warrant Agent with respect to all the Warrants.
(e) If the Warrant Agent shall resign or be removed, or if a vacancy
shall occur in the office of the Warrant Agent for any other reason, the
Corporation, by a Board Resolution, shall promptly appoint a successor Warrant
Agent with respect to the Warrants, it being understood that at any time there
shall be only one Warrant Agent with respect to the Warrants.
(f) The Corporation shall give notice to the Owners or Holders of
the Warrants of each resignation and each removal of the Warrant Agent and each
appointment of a successor Warrant Agent with respect to the Warrants in
accordance with Section 8.05. Each such notice shall include the name of the
successor Warrant Agent and the address of its Warrant Agent Office.
Section 4.07. Acceptance of Appointment by Successor. (a) If a
successor Warrant Agent is appointed hereunder, such successor Warrant Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Warrant Agent an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Warrant Agent shall become effective
and such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Warrant Agent; provided, however, that on the request of the Corporation or the
successor Warrant Agent, such retiring Warrant Agent shall, upon payment of its
charges and disbursements then unpaid, execute and deliver an instrument
transferring to such successor Warrant Agent all the rights and powers of the
retiring Warrant Agent and shall duly assign, transfer and
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deliver to such successor Warrant Agent all property and money held by such
retiring Warrant Agent hereunder.
(b) Upon the request of any such successor Warrant Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Warrant Agent all such rights and
powers referred to in Section 4.07(a).
(c) No successor Warrant Agent shall accept its appointment, and no
such acceptance shall be effective, unless at the time of such acceptance such
successor Warrant Agent shall be qualified and eligible under this Article IV.
Section 4.08. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to all or substantially all of the
business of the Warrant Agent, shall be the successor of the Warrant Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such corporation shall be
otherwise qualified and eligible under this Article IV. If any Warrant
Certificates shall have been countersigned, but not delivered, by the Warrant
Agent then in office, any successor by merger, conversion or consolidation to
such countersigning Warrant Agent may adopt such countersignature and deliver
the Warrant Certificates so countersigned with the same effect as if such
successor Warrant Agent had itself countersigned such Warrant Certificates.
ARTICLE V
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 5.01. Consolidations and Mergers of the Corporation and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. (a) The
Corporation may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that, in any such case,
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(i) either the Corporation shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States of America or a state thereof and such successor corporation shall
expressly assume, by Supplemental Agreement (as defined in Section 6.01(a))
satisfactory to the Warrant Agent and executed and delivered to the Warrant
Agent by such corporation, the due and punctual payment of the Cash Settlement
Value [or Cancellation Amount, as the case may be,] with respect to all
unexercised Warrants, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Agreement to be performed by the Corporation, and (ii) the Corporation or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale, lease or conveyance, be in default in the
performance of any such covenant or condition. In case of any such
consolidation, merger, sale, lease or conveyance and upon such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it had been named
herein as such, and the predecessor Corporation, except in the event of a lease,
shall be relieved of any further obligation hereunder or under the Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Corporation, new Global Warrant
Certificates or Definitive Warrant Certificates, as the case may be,
representing Warrants not theretofore exercised, in exchange and substitution
for the Global Warrant Certificates and Definitive Warrant Certificates
theretofore issued; and upon the order of such successor corporation, instead of
the Corporation, and subject to all the terms, conditions and limitations in
this Agreement prescribed, the Warrant Agent shall countersign and shall deliver
the new Global Warrant Certificates or Definitive Warrant Certificates, as the
case may be, that such successor corporation shall have caused to be signed and
delivered to the Warrant Agent for countersignature. Such Global Warrant
Certificates or Definitive Warrant Certificates, as the case may be, shall in
all respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates theretofore issued in accordance with the terms of this
Agreement as though such new Warrant Certificates had been issued at the
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date of issue of the Warrant Certificates for which they are exchanged. In case
of any such consolidation, merger, sale, lease or conveyance, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates as may be appropriate.
(b) The Warrant Agent may receive a written opinion of counsel (who
may be an employee of the Corporation or other counsel acceptable to the Warrant
Agent) (an "Opinion of Counsel") as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article V.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Amendment of Index Warrant Agreement. (a) This
Agreement and the Warrants may be amended by the Corporation, when authorized by
a Board Resolution, and the Warrant Agent (which amendment shall take the form
of a supplemental index warrant agreement) (each, a "Supplemental Agreement")),
without the consent of the Owners or Holders of the Warrants, for the purpose
of:
(i) curing any ambiguity or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, or of making any other provisions with respect to matters or
questions arising under this Agreement that shall not be inconsistent with
the provisions of this Agreement or the Warrants; or
(ii) evidencing the succession of another corporation to the
Corporation and the assumption by any such successor of the covenants of
the Corporation contained herein and in the Warrants in accordance with
Article V; or
(iii) appointing a successor Depository in accordance with
Section 1.01(e); or
(iv) evidencing and providing for the acceptance of
appointment hereunder by a successor Warrant Agent in accordance with
Section 4.07; or
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(v) adding to the covenants of the Corporation for the benefit
of the Owners or Holders of the Warrants or surrendering any right or
power herein conferred upon the Corporation; or
(vi) issuing Warrants in the form of Definitive Warrant
Certificates in accordance with Section 1.01(c); or
(vii) amending this Agreement and the Warrants in any manner
that the Corporation may deem to be necessary or desirable and that will
not materially and adversely affect the interests of the Owners or Holders
of the Warrants.
(b) The Corporation and the Warrant Agent may amend this Agreement
and the Warrants (which amendment shall take the form of a Supplemental
Agreement), with the consent of the Owners or Holders, as the case may be, of
not fewer than 66-2/3% in number of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners or Holders of the Warrants under this Agreement;
provided, however, that, without the consent of each Owner or Holder affected
thereby, no such amendment may be made that changes the determination of the
Cash Settlement Value [or Cancellation Amount, as the case may be,] of the
Warrants (or any aspects of such determination) so as to reduce the amount
receivable upon exercise or deemed exercise of the Warrants, shortens the period
of time during which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Owners or Holders, as the case may
be, or reduces the number of unexercised Warrants the consent of the Owners or
Holders of which is required for amendment of this Agreement or the Warrants.
The Corporation and the Warrant Agent shall be entitled to rely upon
certification in form satisfactory to each of them that any requisite consent
has been obtained from the Owners of Warrants represented by a Global Warrant
Certificate. Such certification may be provided by Depository Participants
acting on behalf of such Owners of Warrants, provided that any such
certification is accompanied by a certification from the Depository as to
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the Global Warrant Certificate holdings of such Depository Participants.
Section 6.02. Form of Approval of Supplemental Agreements by Owners
or Holders. It shall not be necessary for the Owners or Holders of the Warrants
to approve the particular form of any proposed Supplemental Agreement, but it
shall be sufficient if the Owners or Holders, as the case may be, shall approve
the substance of the Supplemental Agreement.
Section 6.03. Effect of Supplemental Agreements. Upon the execution
of any Supplemental Agreement under this Article, this Agreement shall be
modified in accordance therewith, such Supplemental Agreement shall form a part
of this Agreement for all purposes, and, subject to the proviso to the first
sentence of Section 6.01(b), every Owner or Holder of Warrants theretofore or
thereafter countersigned and delivered hereunder shall be bound thereby.
Section 6.04. Reference in Warrants to Supplemental Agreements.
Warrants countersigned and delivered after the execution of any Supplemental
Agreement pursuant to this Article may, and shall if required by the Warrant
Agent, bear a notation in form approved by the Warrant Agent as to any matter
provided for in such Supplemental Agreement. If the Corporation shall so
determine, new Warrants so modified as to conform, in the opinion of the Warrant
Agent and the Corporation, to any such Supplemental Agreement may be prepared
and executed by the Corporation and countersigned and delivered by the Warrant
Agent in exchange for unexercised Warrants.
ARTICLE VII
COVENANTS OF THE CORPORATION
Section 7.01. Listing of Warrants on National Securities Exchange.
(a) The Corporation covenants, for the benefit of the Owners or Holders of the
Warrants, as the case may be, that (i) it will seek to obtain the listing of the
Warrants on [name of national
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securities exchange] and (ii) until the Expiration Date, it will not seek the
delisting of the Warrants from, or permanent suspension of their trading on,
[name of national securities exchange] unless prior to such delisting or
suspension the Warrants shall have been listed, and shall be trading, on another
national securities exchange.
(b) The Corporation shall advise the Warrant Agent of the date of
any expected delisting or permanent suspension of trading of the Warrants as
soon as is practicable and will immediately inform the Warrant Agent after the
Corporation has received notice that such delisting or suspension has occurred,
but in no event shall notice of such delisting or suspension be given to the
Warrant Agent later than [3:00 P.M.], New York City time, on the fifth New York
Business Day preceding the date that such delisting or suspension occurs.
(c) The Corporation shall notify the Owners or Holders of the
Warrants in accordance with Section 8.05 as promptly as is practicable of any
expected delisting or suspension of trading of the Warrants.
Section 7.02. Governmental Approvals. The Corporation shall from
time to time take all reasonable action necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and the [name of national securities exchange], and shall make all
filings under United States federal and state laws, that may be or become
requisite in connection with the issuance, sale, trading, transfer, delivery or
exercise of the Warrants, each Global Warrant Certificate and each Definitive
Warrant Certificate.
Section 7.03. Payment of Cash Settlement Value [or Cancellation
Amount]. The Corporation agrees, for the benefit of the Owners or Holders of the
Warrants, that it will duly and punctually pay the Cash Settlement Value [or
Cancellation Amount, as the case may be,] on each Warrant in accordance with the
terms of the Warrants and this Agreement, and that the right of each such Owner
or Holder, as the case may be, to receive payment of the Cash Settlement Amount
[or Cancellation Amount, as the case may be,] on such Warrant when such amount
is due and payable shall be absolute and unconditional.
Section 7.04. Maintenance of Office or Agency; Unclaimed Moneys. (a)
The Corporation shall maintain an office and agency at which the Warrants may be
presented or
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surrendered for exercise or registration of transfer or exchange or cancellation
and where notices and demands to or upon the Corporation in respect of the
Warrants and this Agreement may be served, which office and agency shall be the
same as the location of the Warrant Agent Office, and the Corporation hereby
appoints the Warrant Agent as its agent to receive all such presentations,
surrenders, notices and demands.
(b) The Corporation shall, on or prior to each due date of the Cash
Settlement Value [or Cancellation Amount, as the case may be,] on any Warrant,
deposit with the Warrant Agent a sum sufficient to pay the Cash Settlement Value
[or Cancellation Amount, as the case may be,] so becoming due, such sum to be
held for the benefit of the Persons entitled to such Cash Settlement Value [or
Cancellation Amount, as the case may be].
(c) Any money deposited with the Warrant Agent for the payment of
the Cash Settlement Value [or Cancellation Amount, as the case may be,] on any
Warrant and remaining unclaimed for three years after such Cash Settlement Value
[or Cancellation Amount, as the case may be,] has become due and payable, shall
be paid to the Corporation, at the request of the Corporation, and the Person
entitled to such money shall thereafter, as an unsecured general creditor, look
only to the Corporation for payment thereof, and all liability of the Warrant
Agent with respect to such money shall thereupon cease; provided, however, that
the Warrant Agent, before being required to make any such repayment, may at the
expense of the Corporation, cause notice to be given in accordance with Section
8.05 to the Person entitled to such money that such money remains unclaimed and
that, after a date specified therein, which shall be not less than 30 days from
the date of such notice, any unclaimed balance of such money then remaining will
be repaid to the Corporation.
Section 7.05. Corporate Existence. Subject to Article V, the
Corporation shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Corporation shall not be
required to preserve any right or franchise if its Board of Directors or a
committee thereof shall determine that the preservation thereof is no longer
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desirable in the conduct of the business of the Corporation and that the loss
thereof is not disadvantageous in any material respect to the Owners or Holders
of the Warrants, as the case may be.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Reopening of Issue of Warrants. The Corporation may,
from time to time, issue additional Warrants under this Agreement. All Warrants
issued hereunder, from and after the date they are issued, shall be identical.
Section 8.02. Payment of Taxes. The Corporation shall pay all
documentary stamp taxes attributable to the initial issuance of Warrants;
provided, however, that the Corporation shall not be required to pay any tax or
other governmental charge that may be payable in respect of any transfer
involving any beneficial or record interest in or ownership interest of any
Warrants.
Section 8.03. Notices and Demands to the Corporation and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Corporation by any Owner or Holder pursuant to the provisions of the Warrants,
the Warrant Agent shall promptly forward such notice or demand to the
Corporation.
Section 8.04. Addresses for Notices. Any communications from the
Corporation to the Warrant Agent with respect to this Agreement shall be
addressed to [name of Warrant Agent], [address] (facsimile: (___) ___-____)
(telephone: (___) ___-____), Attention: [Corporate Trust Department]; any
communications from the Warrant Agent to the Corporation with respect to this
Agreement shall be addressed to UBS AG, 299 Park Avenue, New York, New York
10017 (facsimile: (212) ___-____) (telephone: (212) ___-____), Attention:
[Robert Dinerstein] (or, in either case, at such other address as shall be
specified in writing to the other by the Warrant Agent or the Corporation, as
the case may be).
Section 8.05. Notices to Owners and Holders. The Corporation or the
Warrant Agent shall give any notice
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to be given to the Owners of Book-Entry Warrants by providing the Depository
with a form of notice to be distributed by the Depository to Depository
Participants in accordance with the customs and practices of the Depository. The
Corporation or the Warrant Agent shall give notice to the Holders of
Certificated Warrants by mailing written notice by first class mail, postage
prepaid, to such Holders as their names and addresses appear in the Warrant
Register.
Section 8.06. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 8.07. Benefits of Index Warrant Agreement. Nothing in this
Agreement or in the Warrants expressed or implied and nothing that may be
inferred from any of the provisions hereof or thereof is intended, or shall be
construed, to confer upon, or give to, any Person other than the Corporation,
the Warrant Agent and their respective successors and assigns, and the Owners or
Holders of the Warrants, as the case may be, any right, remedy or claim under or
by reason of this Agreement or the Warrants or of any covenant, condition,
stipulation, promise or agreement hereof or thereof, and all covenants,
conditions, stipulations, promises and agreements contained in this Agreement or
in the Warrants shall be for the sole and exclusive benefit of the Corporation
and the Warrant Agent and their respective successors and assigns and of the
Owners or Holders of the Warrants, as the case may be.
Section 8.08. Successors and Assigns. All covenants and agreements
in this Agreement by the Corporation shall bind its successors and assigns,
whether so expressed or not.
Section 8.09. Index Warrant Agreement and Warrants Solely Corporate
Obligations. No recourse for the payment of the Cash Settlement Value [or
Cancellation Amount, as the case may be,] of any Warrant or for any claim based
on any Warrant or this Agreement shall be had against any director or officer or
stockholder, past, present or future, of the Corporation. Any such claim against
any such Person is expressly waived as a condition
-44-
of, and as consideration for, the execution and delivery of this Agreement and
the issue of the Warrants.
Section 8.10. Severability. If any provision in this Agreement or in
the Warrants shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions, or of
such provisions in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 8.11. Headings. The descriptive headings of the several
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 8.12. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 8.13. Inspection of Index Warrant Agreement. A copy of this
Agreement shall be available at all reasonable times at the Warrant Agent Office
for inspection by the Owners or Holders of the Warrants, as the case may be, the
Depository Participants and the Indirect Participants. In the case of
Certificated Warrants, the Warrant Agent may require the Holder of such Warrant
to submit such Holder's Warrant Certificate for inspection by the Warrant Agent.
-45-
IN WITNESS WHEREOF, this Index Warrant Agreement has been duly
executed by the parties hereto as of the day and year first above written.
UBS AG
By:__________________________
Name:
Title:
[SEAL]
Attest:
__________________________
[Assistant] Secretary
[NAME OF WARRANT AGENT], as Warrant Agent
By:__________________________
Name:
Title:
[SEAL]
Attest:
__________________________
[Assistant] Secretary
-46-
EXHIBIT A
[WARRANTS EVIDENCED BY THIS WARRANT CERTIFICATE CANNOT
BE EXERCISED PRIOR TO ________ __, 200__.]
[NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE WARRANT AGENT HAS RECEIVED
THE CERTIFICATION DESCRIBED IN THE INDEX
WARRANT AGREEMENT]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [3:00 P.M.], NEW YORK CITY TIME,
ON ________ __, 200__
No. _________ CUSIP No. ____________
GLOBAL WARRANT CERTIFICATE
representing
________ [Name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__
UBS AG
This certifies that [______________] or registered assigns is the
registered holder of [insert number initially issued] [insert name of Index]
Index [Put/Call] Warrants (the "Warrants"), or such lesser amount as is
indicated in the records of [name of Warrant Agent], as Warrant Agent. Each
Warrant entitles the [beneficial owner thereof (an "Owner")] [registered holder
thereof (a "Holder")], subject to the provisions contained herein and in the
Index Warrant Agreement referred to below, to receive from UBS AG, a New York
corporation (the "Corporation"), the Cash Settlement Value (as defined below)
[or Cancellation Amount (as defined below), as the case may be,] thereof in
[U.S. dollars (specify other currency if applicable)], as further described
below. [No exercise price shall be payable by any Holder or Owner in connection
with the exercise of any Warrant.] [The exercise price for each Warrant shall be
$_____ and shall be payable in [U.S. dollars (specify other currency if
applicable)] (the "Exercise Price").] In no event shall any [Owner] [Holder] be
entitled to any interest on the
A-1
Cash Settlement Value [or Cancellation Amount] (unless the Corporation shall
default in the payment of such Cash Settlement Value).
Subject to the terms of the Index Warrant Agreement, each Warrant
may be exercised or deemed to be exercised in whole but not in part on any New
York Business Day (as defined below) from [the date of issuance (specify other
date if applicable)] until [3:00 P.M.], New York City time, on the earlie[st] of
(i) [_________ (specify date upon which right to exercise Warrants expires)] or,
if such date is not a New York Business Day, on the next succeeding New York
Business Day (the "Expiration Date"), [or] (ii) the date of automatic exercise
[or (iii) the date of cancellation], as further described below and as provided
in the Index Warrant Agreement. Except in the case of automatic exercise or any
exercise on the Expiration Date, not fewer than [(specify minimum exercise
amount)] [nor more than [(specify maximum exercise amount)] Warrants may be
exercised by or on behalf of any one [Owner] [Holder] at any one time.
References herein to "U.S. dollars", "U.S.$" or "$" are references to the
currency of the United States of America. References to "[(insert name of Index
currency)]" or "[_______]" are references to the currency of [name of Index
country]. As used herein, the term "New York Business Day" means any day other
than a Saturday or Sunday or a day on which the New York Stock Exchange or the
American Stock Exchange [or (list any other relevant securities exchanges)] is
not open for securities trading or banking institutions generally in The City of
New York are authorized or required by law or executive order to close; "Index
Country Business Day" means any day other than (i) a Saturday or a Sunday or a
day on which banking institutions generally in [(specify name of Index country)]
are authorized or required by law or executive order to close or (ii) a day on
which the [names of relevant stock exchanges] are not open for business[; and
"Index Country Resident" means a resident of, or any corporation or other Person
organized under the laws of [(specify name of Index country)], its territories,
its possessions or other areas subject to its jurisdiction].
This [Global] [Definitive] Warrant Certificate is issued under and
in accordance with the Index Warrant Agreement, dated as of ________ __, 200__
(the "Index Warrant Agreement"), between the Corporation and the
A-2
Warrant Agent, and is subject to the terms and provisions contained in the Index
Warrant Agreement, to all of which terms and provisions all [Owners] [Holders]
of the Warrants represented by this [Global] [Definitive] Warrant Certificate
[and the Holder of this Global Warrant Certificate] consent by acceptance hereof
[by the Depository (as defined below)]. Copies of the Index Warrant Agreement
are on file at the Warrant Agent Office at ______________, New York, New York,
_____, Attention: Corporate Trust Department, or at such other office as may be
specified in a notice given to the [Owners] [Holders] of the Warrants. [Except
as provided in the Index Warrant Agreement, Owners will not be entitled to
receive definitive certificates evidencing their Warrants. Warrant holdings will
be held through a depository selected by the Corporation, which initially is
[The Depository Trust Company], or its agent (the "Depository", which term, as
used herein, includes any successor depository selected by the Corporation) as
further provided in the Index Warrant Agreement.]
Capitalized terms included herein but not defined herein have the
meanings assigned to them in the Index Warrant Agreement.
The Cash Settlement Value of any Exercised Warrants (whether
exercised automatically or by Exercise Notice) shall mean [__________________
(specify fraction)] of the U.S. dollar equivalent (rounded to the nearest
dollar) of the amount, if any, by which [(i) the Strike Index (as defined below)
exceeds (ii) the Spot Index (as defined below) on the Valuation Date (as defined
below) with respect to such Exercised Warrant] [the amount, if any, by which (i)
the Spot Index (as defined below) on the Valuation Date (as defined below) with
respect to such Exercised Warrant exceeds (ii) the Strike Index]; provided that
if such amount is less than zero, the Cash Settlement Value shall be zero. [The
Cancellation Amount of any Exercised Warrants shall mean [Insert method for
determining amount].] The "Spot Index" on any date shall mean [Insert amount or
method for determining amount]. The "Strike Index" of any Exercised Warrant
shall mean [Insert amount or method for determining amount]. The exchange rate
(or manner of calculating such rate) for conversion of the Cash Settlement
Value, [the Cancellation Amount,] the Strike Index, the Spot Index and/or the
value of Underlying
A-3
Securities, as applicable, into U.S. dollars shall be [_____________ (specify
such rate or manner of calculating such rate)] and shall be determined by the
Warrant Agent.
Except in the case of automatic exercise [or cancellation] as
further provided below and in the Index Warrant Agreement, and subject to any
Maximum Exercisable Number of Warrants, the "Valuation Date" for any Warrant
shall be the first Index Country Business Day next succeeding the "Exercise
Date", which shall be the New York Business Day on which the Warrant Agent has
received (i) delivery of [such Warrant on the records of the Depository free to
the Warrant Account] [the Definitive Warrant Certificate representing such
Warrant at the Warrant Agent Office][, (ii) the Exercise Price] and ([iii]) an
Exercise Notice for such Warrant in good order in the form of [Exhibit B-1]
[Exhibit B-2] to the Index Warrant Agreement, [which shall include certification
that the [exercising Owner] [Holder] is not an Index Country Resident,] at or
prior to [3:00 P.M.], New York City time; provided that if the Warrant Agent
receives such Warrant[, the Exercise Price] or the Exercise Notice after [3:00
P.M.] on such day, the "Exercise Date" shall be the next succeeding New York
Business Day and such Warrant[, Exercise Price] and Exercise Notice shall be
deemed to have been received on such next succeeding New York Business Day. Any
delivery of a Warrant or Exercise Notice received after [3:00 P.M.], New York
City time, on the Expiration Date shall be void and of no effect and shall be
deemed not to have been delivered. [A [Depository Participant] [Holder] may
specify in its irrevocable Exercise Notice in relation to a Warrant that such
Exercise Notice is conditional (a "Conditional Exercise Notice"), and in such
case such Conditional Exercise Notice shall be void and of no effect and shall
be disregarded for all purposes of the Index Warrant Agreement if [Describe the
terms upon which the Exercise Notice may be conditional, which may be as
follows: the Spot Index on the day that, but for the provisions of this
sentence, would be the Valuation Date for such Warrant is more than
[_________________] [above] [below] the Spot Index on the [Designated] Exercise
Date of such Warrants (or, if such date is not an Index Country Business Day, on
the immediately preceding Index Country Business Day) (the "Reference Value").]
A-4
By [5:00 P.M.], New York City time, on the New York Business Day on
which such Exercise Notice is received (or deemed to have been received), the
Warrant Agent shall notify the Corporation (and such other parties (not to
exceed two) as the Corporation shall designate in writing) of the number of
Warrants in respect of which Exercise Notices, not rejected pursuant to the
Index Warrant Agreement, were received (or deemed to have been received) at or
prior to [3:00 P.M.], New York City time, on such date, the number of such
Exercise Notices that were rejected by the Warrant Agent pursuant to the Index
Warrant Agreement and the number of Warrants to which such rejected Exercise
Notices relate [and the number of such Exercise Notices that were Conditional
Exercise Notices (and the number of Warrants to which such Conditional Exercise
Notices relate)]. By [5:00 P.M.], New York City time, on the Valuation Date for
such Warrants (or if such Valuation Date is not a New York Business Day, then
the next succeeding New York Business Day), the Warrant Agent shall (i) [(x)
after obtaining the Reference Value and the Spot Index for such Valuation Date,
determine whether any Conditional Exercise Notices have become void pursuant to
Section 2.02(b) of the Index Warrant Agreement, and if so, promptly notify the
Corporation (and such other parties (not to exceed two) as the Corporation shall
designate in writing) and send a Rejection Notice in the form of Exhibit C to
the Index Warrant Agreement to the appropriate [Depository Participant] [Holder]
and redeliver such Warrants to such [Depository Participant] [Holder] as
provided in the Index Warrant Agreement and (y)] determine the aggregate number
of [Tendered] [Exercised] Warrants, (ii) [determine pursuant to Section 2.02(f)
of the Index Warrant Agreement the number of such Tendered Warrants which shall
be Exercised Warrants, (iii)] determine the Cash Settlement Value (in the manner
provided in Section 2.02(h) of the Index Warrant Agreement) of the Exercised
Warrants, (iv) notify the Corporation (and such other parties (not to exceed
two) as the Corporation shall designate in writing) of the Cash Settlement Value
with respect to such Warrants, (v) send notice of confirmation of exercise in
substantially the form of Exhibit D to the Index Warrant Agreement to the
appropriate [Depository Participant] [Holder] and (vi) notify the Corporation
(and such other parties (not to exceed two) as the Corporation shall designate
in writing) of such other matters relating
A-5
to the Exercised Warrants as the Corporation shall reasonably request.
If the Corporation has made adequate funds available to the Warrant
Agent in a timely manner as provided in the Index Warrant Agreement, the Warrant
Agent will make payment in the form of a wire transfer to the appropriate
Depository Participant on the [fifth] New York Business Day following the
Valuation Date (or, if such Valuation Date is not a New York Business Day, on
the [sixth] New York Business Day after such Valuation Date) (the "Settlement
Date"), all as provided in the Index Warrant Agreement, such payment to be in
the amount of the Cash Settlement Value in respect of Exercised Warrants
exercised by such Depository Participant. [The Warrant Agent shall have no
responsibility for the crediting by such Depository Participant of the Cash
Settlement Value of such Warrants to the appropriate Owners.]
[The Warrant Agent will cause its records to be marked to reflect
the reduction in the number of Warrants represented by this Global Warrant
Certificate by the number of Warrants for which payment has been made in
accordance with the Index Warrant Agreement.] [If this Definitive Warrant
Certificate shall be surrendered to the Warrant Agent for exercise of fewer than
all the Warrants represented hereby, the Warrant Agent shall issue and deliver
to the Holder of the Warrants represented hereby by first class mail at the
expense of the Corporation a Definitive Warrant Certificate representing all
Warrants remaining unexercised after such exercise.]
All Warrants with respect to which (i) there has been no proper
delivery of Warrants to the Warrant Account and no valid Exercise Notice has
been received by the Warrant Agent at or prior to [3:00 P.M.], New York City
time, on the earlier to occur of (A) the Expiration Date for such Warrants and
(B) the last New York Business Day prior to the effective date on which the
Warrants are delisting from, or permanently suspended from trading on, the [name
of national securities exchange] without being accepted for listing on or prior
to such New York Business Day on another United States national securities
exchange (such New York Business Day, the "Delisting Date"), (ii) the Exercise
Date has been postponed pursuant to Section 2.02(f) of the Index Warrant
Agreement to a date on
A-6
or after the earlier of the Expiration Date and the Delisting Date, [or (iii)
list other events causing automatic exercise of Warrants, if applicable] will be
automatically exercised on such Expiration Date or Delisting Date [or on the
date on which (list other dates of automatic exercise)] (any such date, a
"Deemed Exercise Date") without any requirement of notice of exercise to the
Warrant Agent. The Valuation Date for such Warrants shall be the first Index
Country Business Day following such Deemed Exercise Date.
If the Corporation has made adequate funds available to the Warrant
Agent in a timely manner as set forth in the Index Warrant Agreement, the
Warrant Agent will make its payment available in the form of [a wire transfer to
the appropriate Depository Participant] [one or more cashier's checks or
official bank checks to the appropriate Holder] in the amount of [(x)] the Cash
Settlement Amount with respect to each Warrant [minus (y) the Exercise Price],
after [3:00 P.M.], New York City time, but prior to the close of business, on
the [eighth] New York Business Day following the Valuation Date for such
automatically exercised Warrants (or, if such Valuation Date is not a New York
Business Day, on the [ninth] New York Business Day after such Valuation Date),
such payment to be in the amount of the aggregate Cash Settlement Value in
respect of Warrants that have been automatically exercised, all as provided in
the Index Warrant Agreement; provided, however, that the Warrant Agent shall
withhold any such payment with respect to any Warrants for which the Warrant
Agent has not received [(i)] the related Warrants through transfer of such
Warrants to the Warrant Account[, and (ii) certification that the Owner of such
Warrants is not an Index Country Resident, dated no earlier than the Deemed
Expiration Date and in the form of Exhibit E-1 to the Index Warrant Agreement].
When payment has been made in respect of all automatically exercised Warrants
represented by this Warrant Certificate, the Warrant Agent shall, promptly upon
receipt cancel this Warrant Certificate and deliver it to the Corporation.
If the Index is not calculated and announced by the [name of Index
Publisher] (the "Index Publisher") on a Valuation Date but is calculated and
publicly announced by another Person not affiliated with the Corporation and
acceptable to the Corporation (the "Third Party"), the
A-7
applicable Cash Settlement Value [or Cancellation Amount] shall be calculated by
reference to the value of the closing quotation for the Index so calculated and
announced by the Third Party.
If, prior to any Valuation Date, the Index Publisher or the Third
Party makes a material change in the formula for or the method of calculating
the Index, the Corporation shall promptly appoint an investment or commercial
bank of international standing that is not an affiliate of the Corporation (the
"Independent Expert") who shall make such calculations as may be required to
determine the applicable Cash Settlement Value [or Cancellation Amount] using
the formula and method of calculating the Index as in effect prior to such
change or modification.
If, on any Valuation Date, neither the Index Publisher nor any Third
Party is calculating and disseminating the Index and neither is providing any
successor index, the Corporation shall promptly appoint an Independent Expert
who shall make such calculations as it determines may be required to determine
the applicable Cash Settlement Value [or Cancellation Amount] using the formula
and method of calculating the Index as in effect on the date the Index was last
so calculated.
If any of the events referred to above with respect to the
calculation of the Index shall occur, the Corporation shall promptly make
available information regarding the composition, method of calculation and
current level of the Index or successor index upon written request to the
Corporation's offices at UBS AG, 299 Park Avenue, New York, New York 10017,
Attention: Robert Dinerstein. In addition, the Corporation shall undertake
reasonable efforts to ensure that such information is publicly available. If the
Index Publisher shall elect to suspend or discontinue calculating or announcing
the Index, the Corporation shall so notify the Owners by giving notice to the
Depository in accordance with the Index Warrant Agreement.
The Corporation, the Warrant Agent and any agent of the Corporation
or the Warrant Agent may deem and treat the registered Holder hereof as the
absolute Holder of all right, title and interest in the Warrants evidenced
hereby
A-8
(notwithstanding any notation of ownership or other writing hereon) for any
purpose and as the Person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Corporation nor the Warrant Agent nor
any agent of the Corporation or the Warrant Agent shall be affected by any
notice to the contrary, except that the Corporation and the Warrant Agent shall
be entitled to rely on and act pursuant to instructions of Depository
Participants as contemplated herein and in the Index Warrant Agreement.
Subject to the terms of the Index Warrant Agreement, upon due
presentment for registration of transfer or exchange of this [Global]
[Definitive] Warrant Certificate at the Warrant Agent Office, the Corporation
shall execute and the Warrant Agent shall countersign and deliver in the name of
the designated transferee a new [Global] [Definitive] Warrant Certificate or
[Global] [Definitive] Warrant Certificates of like tenor and representing in the
aggregate a like number of unexercised Warrants as evidenced by this [Global]
[Definitive] Warrant Certificate at the time of such registration of transfer,
which shall be issued to the designated transferee in exchange for this [Global]
[Definitive] Warrant Certificate, subject to the limitations provided in the
Index Warrant Agreement, without charge.
This [Global] [Definitive] Warrant Certificate and the Index Warrant
Agreement are subject to amendment as provided in the Index Warrant Agreement.
THIS [GLOBAL] [DEFINITIVE] WARRANT CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This [Global] [Definitive] Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
A-9
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated as of ________ __, 200__
UBS AG
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
Countersigned on the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:___________________________
Name:
Title:
A-10
EXHIBIT B-1
Form of Exercise Notice
for Warrants Represented by a Global Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of UBS AG [name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__ (the "Warrants")
1. We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
[Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). On behalf of
certain beneficial owners, each of whom is exercising no fewer than [__________]
Warrants covered by this Notice and whose Warrants are held through the
Depository in our name, we hereby irrevocably exercise [_____________] Warrants
(the "Tendered Warrants").
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Index Warrant
Agreement) if the Spot Index on the date that, but for the provisions of Section
2.02(b) of the Index Warrant Agreement, would be the Valuation Date for the
Warrants is more than [__________] [above] [below] the Spot Index on the
[Designated] Exercise Date (or, if the [Designated] Exercise Date is not an
Index Country Business Day, on the immediately preceding Index Country Business
Day).]
3. We have instructed the Depository to deliver the Exercised
Warrants free through the Depository to the Warrant Account [Account No.
_______________])[, and we have made payment of the Exercise Price as provided
in Section 2.01(b) of the Index Warrant Agreement].
4. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Tendered Warrants must
be received by you by [3:00 P.M.], New York City time, on a New York Business
Day in order for the Valuation Date of the Tendered Warrants to be the Index
Country Business Day next succeeding such New York Business Day, and that if
this Exercise Notice[, the Exercise Price] or the Tendered Warrants are received
by you after [3:00 P.M.], New York City time, but prior to the close of business
on a New York Business Day, the Valuation Date of the Tendered Warrants shall be
the Index Country Business Day next succeeding the first New York Business Day
following the day on which this Exercise Notice[, the Exercise Price] and the
Tendered Warrants are received. [We further acknowledge that if this Conditional
Exercise Notice[, the Exercise Price] or the Tendered Warrants are received by
you after [3:00] P.M., New York City time, but prior to the close of business on
a New York Business Day, that for purposes of making the determinations required
by such Conditional Exercise Notice, the Warrants will be deemed to be exercised
on the New York Business Day next succeeding the day on which this Exercise
Notice[, the Exercise Price] and the Tendered Warrants are received.]
5. We hereby certify that we are a participant of [The Depository
Trust Company] (the "Depository") with the present right to use and receive its
services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed, or is not in proper form, or you are unable
to verify that we are a participant of the Depository as provided above, this
Exercise Notice will be void and of no effect and will be deemed not to have
been delivered.
7. We hereby direct you to make payment to us of amounts payable to
the beneficial owners of the Tendered Warrants as a result of the exercise of
the Tendered Warrants hereunder as follows:
B-1-2
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:________________
Account No.:_____________
ABA Routing No.:___________
Reference:______________
[8. We hereby certify that none of the clients on whose behalf we are
exercising the above referenced Warrants are Index Country Residents.]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:_____________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-1-3
EXHIBIT B-2
Form of Exercise Notice
for Warrants Represented by a Definitive
Warrant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of UBS AG [name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__ (the "Warrants")
1. We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
[Name of Warrant Agent], as Warrant Agent (the "Warrant Agent"). We hereby
irrevocably exercise [_____________] Warrants (the "Tendered Warrants") and
deliver to you herewith a Definitive Warrant Certificate or Certificates,
registered in the name of the undersigned, representing a number of Warrants at
least equal to the number of Exercised Warrants [and payment of the Exercise
Price as provided in Section 2.01(b) of the Index Warrant Agreement].
2. This Exercise Notice [is] [is not] a Conditional Exercise Notice.
[We hereby acknowledge that a Conditional Exercise Notice will be void and of no
effect (and shall be disregarded for all purposes under the Index Warrant
Agreement) if the Spot Index on the date that, but for the provisions of Section
2.02(b) of the Index Warrant Agreement, would be the Valuation Date for the
Warrants is more than [__________] [above] [below] the Spot Index on the
Exercise Date (or, if the Exercise Date is not an Index Country Business Day, on
the immediately preceding Index Country Business Day).]
3. We hereby acknowledge that this Exercise Notice[, the Exercise
Price] and the Definitive Warrant Certificates representing the Tendered
Warrants must be received by you by [3:00] P.M., New York City time, on a New
York Business Day in order for the Valuation Date of
the Tendered Warrants to be the Index Country Business Day next succeeding such
New York Business Day, and that if this Exercise Notice[, the Exercise Price] or
such Definitive Warrant Certificates are received by you after [3:00] P.M., New
York City time, but prior to the close of business on a New York Business Day,
the Valuation Date of the Tendered Warrants shall be the Index Country Business
Day next succeeding the first New York Business Day following the day on which
this Exercise Notice[, the Exercise Price] and such Definitive Warrant
Certificates are received. [We further acknowledge that if this Conditional
Exercise Notice[, the Exercise Price] or such Definitive Warrant Certificates
are received by you after [3:00] P.M., New York City time, but prior to the
close of business on a New York Business Day, that for purposes of making the
determinations required by such Conditional Exercise Notice, the Warrants will
be deemed to be exercised on the New York Business Day next succeeding the day
on which this Exercise Notice[, the Exercise Price] and such Definitive Warrant
Certificates are received.]
4. We hereby acknowledge that if you determine that this Exercise
Notice has not been duly completed or is not in proper form, this Exercise
Notice will be void and of no effect and will be deemed not to have been
delivered.
5. We hereby direct you to make payment of amounts payable to us as
a result of the exercise of the Warrants hereunder as follows:
[ ] By cashier's check or an official bank
check;
or
[ ] By wire transfer to the following U.S.
dollar bank account in the United
States:
(Minimum payments of $100,000 only)
Bank:________________
Account No.:_____________
ABA Routing No.:___________
B-2-2
Reference:______________
[6. We hereby certify that at the time this notice is delivered to
you, the beneficial owners of the Tendered Warrants are not Index Country
Residents.]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF HOLDER]
By:_____________________
Name:
Title:
[Address]
Telephone:
Facsimile:
B-2-3
EXHIBIT C
Form of Rejection Notice
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of UBS AG [name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
the undersigned, as Warrant Agent (the "Warrant Agent").
In the case of Tendered Warrants represented by a Global Warrant
Certificate and rejected pursuant to Section 2.02(c)(v) of the Index Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [we
were not able to verify that you are a Depository Participant of [The Depository
Trust Company] in the manner, and pursuant to the procedures], as set forth in
the Index Warrant Agreement. Accordingly, we have rejected your Exercise Notice
as being unsatisfactory as to form.
In the case of Tendered Warrants represented by a Definitive Warrant
Certificate and rejected pursuant to Section 2.02(c)(ii) of the Index Warrant
Agreement: You are hereby notified that [the Exercise Notice delivered by you
was determined by us not to have been [duly completed] [in proper form]] [the
Definitive Warrant Certificate delivered by you was determined by us not to have
been in proper form], as set forth in the Index Warrant Agreement. Accordingly,
we have rejected your Exercise Notice as being unsatisfactory as to form.
[In the case of Tendered Warrants that become void pursuant to
Section 2.02(b) of the Index Warrant Agreement: You are hereby notified that we
have rejected your Conditional Exercise Notice because the Spot Index on the
Valuation Date was [____________], and the Spot Index
on the [Designated] Exercise Date (or, if the [Designated] Exercise Date was not
an Index Country Business Day, on the immediately preceding Index Country
Business Day) was [_______________].]
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:__________________________
Name:
Title:
C-2
EXHIBIT D
Form of Confirmation of Exercise
[NAME OF DEPOSITORY PARTICIPANT OR HOLDER],
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Exercise of UBS AG [name of Index] Index [Put/Call] Warrants
Expiring ________ __, 200__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
the undersigned, as Warrant Agent (the "Warrant Agent").
We hereby confirm receipt of your Exercise Notice with respect to
____________ Warrants (the "Exercised Warrants"), and the [Definitive Warrant
Certificates representing the] Warrants relating thereto, which Exercise Notice
[and Definitive Warrant Certificates] we have found to be duly completed and in
good order[, and we have verified, in the manner provided in the Index Warrant
Agreement, that you are a Depository Participant].
[The Corporation has elected to limit the number of Warrants that
may have an Exercise Date of ___________ __, 200__ to [____________]. Of the
Tendered Warrants, [_______________] Warrants have been selected to be Warrants
that will have an Exercise Date on such date (such Warrants, the "Exercised
Warrants"). The remaining [_____________] Tendered Warrants are deemed to be
Delayed Exercise Warrants.] [The Corporation has not elected to limit the number
of Warrants that may be exercised pursuant to Section 2.02(f) of the Index
Warrant Agreement. Accordingly, all of the Tendered Warrants will have an
Exercise Date of __________ __, 200__ and are hereinafter referred to as
"Exercised Warrants".]
We hereby confirm that the aggregate Cash Settlement Value of
[payment currency] [_________________] of such Exercised Warrants ([payment
currency] [_____________] per Warrant) [minus the aggregate Exercise
Price thereof] will be made available to you in the form of a [wire transfer]
[check], [five] New York Business Days after the Valuation Date for the
Exercised Warrants (or, if the Valuation Date for the Exercised Warrants was not
a New York Business Day, [six] New York Business Days after the Valuation Date)
in accordance with the terms of the Index Warrant Agreement.
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF WARRANT AGENT],
as Warrant Agent
By:__________________________
Name:
Title:
D-2
EXHIBIT E-1
Form of Depository Participant Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of UBS AG [name of Index] Index [Put/Call]
Warrants Expiring ________ __, 200__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
[Name of Warrant Agent], as Warrant Agent (the "Warrant Agent").
We hereby certify that:
(a) we are acting on behalf of the Owners of ____________
Warrants, which have been automatically exercised pursuant to the
Index Warrant Agreement and which we have delivered free on the
records of the Depository to the Warrant Account[; and
(b) we have received certification from such Owners that the
beneficial owners of such Warrants are not Index Country Residents].
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF DEPOSITORY
PARTICIPANT]
[Participant Number]
By:_____________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-1-2
EXHIBIT E-2
Form of Holder Certificate
[NAME OF WARRANT AGENT],
as Warrant Agent
[address]
Facsimile: ________________
Telephone: ________________
Attention:
Re: Automatic Exercise of UBS AG [name of Index] Index [Put/Call]
Warrants Expiring ________ __, 200__ (the "Warrants")
We refer to the Index Warrant Agreement, dated as of ________ __,
200__ (the "Index Warrant Agreement"), between UBS AG (the "Corporation") and
[Name of Warrant Agent], as Warrant Agent (the "Warrant Agent").
We hereby certify that:
(a) we are the Holders of ____________ Warrants, which have been
automatically exercised pursuant to the Index Warrant Agreement; [and]
(b) we have surrendered the Definitive Warrant Certificates
representing such Warrants at the Warrant Agent Office[; and
(c) as of the date hereof, the beneficial owners of such Warrants
are not Index Country Residents].
Capitalized terms used herein and not defined have the meanings
assigned to them in the Index Warrant Agreement.
Dated: ________ __, 200__
[NAME OF HOLDER]
By:_____________________
Name:
Title:
[Address]
Telephone:
Facsimile:
E-2-2