EXHIBIT 1
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THESE WARRANTS NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT OR OTHER
SECURITIES LAW.
TRANSFERS OF THIS CERTIFICATE MAY NOT BE EFFECTED WITHOUT EVIDENCE SATISFACTORY
TO THE COMPANY AND THE TRANSFER AGENT THAT ANY SUCH TRANSFER MAY BE EFFECTED
WITHOUT VIOLATING THE PROVISIONS OF THE SECURITIES ACT.
FORM OF
WARRANT
To Purchase Ordinary Shares of
IFCO SYSTEMS N.V.
CUSIP/ISIN No. _____________
No. ___________
[_________] WARRANTS TO PURCHASE ORDINARY SHARES
This certifies that ______________________, or its registered assigns,
is the owner of the number of Warrants set forth above, which represents the
right to receive Warrant Shares of IFCO Systems N.V., a Netherlands public
company at any time during the Exercise Period.
In order to exercise the Warrants represented by this Warrant
Certificate, the Holder of this Warrant Certificate must surrender this Warrant
Certificate at the office of Deutsche Bank Trust Company Americas, as the
Transfer Agent for the Warrants, for transfer of the Warrants represented by
this Warrant Certificate to the Clearstream Banking AG clearing system in order
that such Warrants may be held in bearer form as Bearer Warrants, as
contemplated by the Terms and Conditions.
Following the Holder's surrender of this Warrant Certificate as
contemplated in the Terms and Conditions, the Transfer Agent will instruct the
German Transfer Agent to book the Warrants to an account in the clearing system
of Clearstream Banking AG. Thereafter, during the Exercise Period, the Warrants
may be exercised by issuing the proper instructions to Commerzbank AG at
Kaiserplatz, 60261 Frankfurt am Main, Germany, or to its successor, as the
Warrant Agent for the Warrants, as contemplated by the Terms and Conditions,
and, if required, simultaneous payment in full of any Subscription Contribution
in Euro. The number of Warrant Shares issuable upon the exercise of each Warrant
shall be determined pursuant to the Terms and Conditions and the Global Bearer
Warrant Terms and Conditions. All capitalized terms used in this Warrant
Certificate are defined in Section 1 of the Terms and Conditions.
Exh. 1 - 1
The Warrants represented by this Warrant Certificate are issued under
and in accordance with the Terms and Conditions contained in this Warrant
Certificate.
The number of Warrant Shares receivable upon the exercise of each
Warrant represented by this Warrant Certificate are subject to adjustment as
provided in the Terms and Conditions of this Warrant Certificate.
Subject to the restrictions on and conditions to transfer set forth in
Section 5 of the Terms and Conditions of this Warrant Certificate, the Warrants
represented by this Warrant Certificate and all rights pertaining thereto are
transferable by the Holder hereof, in whole or in part, on the register of the
Company maintained by the Transfer Agent for such purpose at the Transfer
Agent's office in New York, currently located at 60 Wall Street, New York, New
York 10005, upon surrender of this Warrant Certificate duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Transfer Agent duly executed, with signatures guaranteed as
specified in the Form of Assignment attached hereto, by the Holder hereof or
such Holder's attorney duly authorized in writing and by such other
documentation required pursuant to this Warrant Certificate and upon payment of
any necessary transfer tax or other governmental charge imposed upon such
transfer. Upon any partial transfer, the Company will sign and issue and the
Transfer Agent will countersign and deliver to such Holder a new Warrant
Certificate(s) with respect to any portion not so transferred. Each taker and
Holder of this Warrant Certificate, by taking and holding the same, consents and
agrees that prior to the registration of transfer as provided in this Warrant
Certificate, the Company, the Warrant Agent and the Transfer Agent may treat the
Person in whose name the Warrant Certificates are registered as the absolute
owner hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding. Accordingly, the
Company, the Warrant Agent and/or the Transfer Agent shall not, except as
ordered by a court of competent jurisdiction as required by applicable law, be
bound to recognize any equitable or other claim to or interest in the Warrant
Certificates or the Warrants represented by such Warrant Certificate on the part
of any Person other than such Holder, whether or not it shall have express or
other notice thereof.
This Warrant Certificate may be exchanged at the office of the
Transfer Agent maintained for such purpose in New York, currently located at 60
Wall Street, New York, New York 10005 for Warrant Certificates representing the
same aggregate number of Warrant Certificates, each new Warrant Certificate to
represent such number of Warrant Certificates as the Holder hereof shall
designate at the time of such exchange.
Prior to the exercise of any of the Warrants represented by this
Warrant Certificate, the Holder, as such, shall not be entitled to any rights of
a shareholder of the Company, including, without limitation, the right to vote
or to consent to any action of the shareholders, to receive any distributions,
to exercise any pre-emptive right or to receive any notice of meetings of
shareholders, and shall not be entitled to receive any notice of any proceedings
of the Company except as provided in the Terms and Conditions of this Warrant
Certificate.
This Warrant Certificate and the Warrants represented by this Warrant
Certificate shall be void and all rights evidenced hereby shall cease on the
termination of the Exercise Period unless sooner terminated by the liquidation,
dissolution or winding-up of the Company or as otherwise provided in the Terms
and Conditions of this Warrant Certificate.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Transfer Agent.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Exh. 1 - 2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed as the date hereof.
Dated: _____________ ____, 2002
IFCO SYSTEMS N.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Countersigned:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Transfer Agent
By: ______________________________
Name:
Title:
[SIGNATURE PAGE TO WARRANT]
Exh 1 - 3
TERMS AND CONDITIONS OF THE WARRANTS
1. DEFINITIONS
The following terms have the respective meanings set forth below:
"1933 Act" shall mean the U.S. Securities Act of 1933, as amended.
"1934 Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
"Acceleration Offer" shall have the meaning as set forth in Section
7.1.
"Acceleration Offer Exercise Period" shall have the meaning as set
forth in Section 7.2.
"Affiliate" shall mean, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. For the
purposes of this definition, "control", when used with respect to any Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling and "controlled" have the meanings as correlative to
the foregoing.
"Agent Members" shall have the meaning set forth in Section
5.2(b)(ii).
"Aggregate Amount" shall mean the aggregate amount of Warrants, up to
4,393,119, issued to the Record Holders.
"Arbitrator" shall have the meaning as set forth in Section (c) of
Annex A hereto.
"Articles of Association" shall mean the articles of association of
the Company.
"Asset Sale" shall mean any direct or indirect sale, issuance,
conveyance, assignment, transfer, lease, or other disposition (including any
sale and lease-back transaction), other than to the Company or any of its
Material Subsidiaries, in any single transaction or series of related
transactions.
"Bearer Holder" shall mean each holder of bearer Warrants in the
Clearstream clearing system and not included on the Warrant Register.
"Bearer Warrants" shall mean the Warrants in bearer form held in the
Clearstream clearing system.
"Board of Directors" shall mean the board of directors of the Company.
"Business Day" shall mean any day of the year on which national
banking institutions in New York, New York; London, England; Frankfurt, Germany;
or Amsterdam, the Netherlands are open to the public for conducting business and
are not required or authorized to close.
"Capital Stock" shall mean, with respect to any Person, any and all
shares, interests, participations, or other equivalents (however designated and
whether or not voting) of corporate stock, partnership or limited liability
company interests, or any other participation, right or other interest in the
nature of an equity interest in such Person including, without limitation,
Common Stock and Preferred Stock of such Person, or any option, warrant, or
other security convertible into any of the foregoing.
"Capitalized Lease Obligations" shall mean with respect to any Person,
indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
Exh. 1 - 4
"Clearstream" shall mean Clearstream Banking AG (or any successor
securities clearing agency).
"Common Stock" of any Person shall mean all Capital Stock of such
Person that is generally entitled (i) to vote in the election of directors of
such Person or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers, or
others that will control the management and policies of such Person.
"Company" shall mean IFCO Systems N.V., a Netherlands public company.
"Consenting Noteholder" shall mean each of the Noteholders signatory
to the Restructuring Agreement.
"Consolidated Interest Expense" shall mean, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its material
subsidiaries on a consolidated basis including, but not limited to:
(i) Redeemable Dividends, whether paid or accrued, on Preferred
Stock;
(ii) imputed interest included in Capitalized Lease Obligations;
(iii) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(iv) the net costs or profits associated with Hedging Obligations;
(v) amortization of other financing fees and expenses;
(vi) the interest portion of any deferred payment obligation;
(vii) amortization of discount or premium, if any;
(viii) interest-equivalent costs associated with any Permitted
Receivables Financing, whether accounted for as interest expense or loss on the
sale of Receivables and Related Assets (factoring); and
(ix) all other non-cash interest expense (other than interest
amortized to cost of sales);
plus, without duplication, (i) all net capitalized interest for such period,
(ii) all interest incurred or paid under any guarantee of indebtedness
(including a guarantee of principal, interest or any combination thereof) of any
Person, and (iii) the amount of all dividends or distributions paid on
Disqualified Capital Stock (other than dividends paid or payable in shares of
Capital Stock of the Company that does not constitute Disqualified Capital
Stock).
"Consolidated Net Income" shall mean, with respect to any Person, for
any period, the aggregate of the Net Income of such Person and its material
subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however that there shall be excluded therefrom:
(i) extraordinary or exceptional gains and losses, including, but
not limited to, any net gain (but not loss) resulting from an Asset Sale by the
Person in question or any of its material subsidiaries other than in the
ordinary course of business; and
Exh. 1 - 5
(ii) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued).
"Director" shall mean any director of the Company, or any person given
power-of-attorney by means of a signed document by a director of the Company to
allow such person to sign such director's name to Company documents.
"Disqualified Capital Stock" shall mean any Capital Stock of a Person
or a Material Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable solely at the option of the holder thereof.
"EBITDA" shall mean, with respect to any Person and its material
subsidiaries, for any period, an amount equal to:
(a) the sum of:
(i) Consolidated Net Income for such period, plus
(ii) the provisions for taxes for such period based on
income or profits to the extent such income or profits were included in
computing Consolidated Net Income and any provisions for taxes utilized in
computing net loss under Section (a) hereof, plus
(iii) Consolidated Interest Expense for such period, plus
(iv) depreciation for such period on a consolidated basis,
plus
(v) amortization for such period on a consolidated basis,
plus
(vi) any other non-cash items decreasing Consolidated Net
Income for such period (other than any non-cash item requiring an accrual or
reserve for cash disbursements in any future period), plus
(vii) all one-time, non-recurring losses, minus
(b) the sum of:
(i) all non-cash items increasing Consolidated Net Income
for such period (other than any non-cash item that represents a reversal of an
accrual or reserve initially recorded in anticipation of a cash disbursement to
be made in a future period), all for such Person and its material subsidiaries
determined on a consolidated basis in accordance with US GAAP (based in Euro);
(ii) all Granulate Sales; and
(iii) all one-time, non-recurring profits or gains.
"Effective Date" shall mean the date upon which all steps to implement
the Restructuring, as set out in the Restructuring Agreement, have been
completed.
"Equity Issuance" shall have the meaning set forth in Section 6.2(b).
"Exercise Period" shall mean the period of thirty (30) days
immediately following the Company's announcement of the commencement of the
Exercise Period, which announcement date shall be as soon as possible after the
Valuation Determination Date.
Exh. 1 - 6
"Expiration Time" shall mean 5:00 p.m. (Frankfurt time) on the last
day of the Exercise Period.
"GAAP" shall mean generally accepted accounting principles
consistently applied as in effect in the United States.
"German Transfer Agent" shall mean Deutsche Bank AG, Taunusanlage 12,
60325 Frankfurt am Main, Germany, in its capacity as transfer agent for the
Bearer Warrants, or any successor thereto.
"Global Bearer Warrant Terms and Conditions" shall have the meaning
set forth in Section 4.1(a).
"Governmental Body" shall mean any government or governmental or
regulatory body thereof, or political subdivision thereof, whether federal,
state, local or foreign, or any agency, instrumentality or authority thereof, or
any court or arbitrator (public or private).
"Granulate Sales" shall mean sales of RPC granulates as a result of
the sales of broken RPCs. The Company uses the RPC granulate in the RPC
manufacturing process.
"Hedging Obligations" shall mean, with respect to any Person, the net
payment obligations of such Person under (a) interest rate swap agreements,
interest rate capital agreements and interest rate collar agreements, and (b)
other agreements or arrangements entered into in order to protect such Person
against fluctuations in commodity prices, interest rates or currency exchange
rates.
"Holder" shall mean each Person who holds Warrants represented by a
Warrant Certificate by means of registration in the name of such Person of the
Warrant Certificate(s) representing such Warrants in the Warrant Register.
"Incumbency Certificate" shall have the meaning set forth in Section
3.3(d).
"Management Share Incentive Plan" shall mean the management share
incentive plan contemplated under the Restructuring Agreement and duly adopted
by the Company following approval at a meeting of the Company's shareholders (if
required by applicable Dutch law), covering five percent (5%) of the Company's
fully diluted Ordinary Shares immediately following the completion of the
Restructuring.
"Market Method" shall have the meaning as set forth in Section (b) of
Annex A hereto.
"Material Subsidiaries" shall mean the companies listed in Schedule G
attached to the Restructuring Agreement.
"Multiple Method" shall have the meaning as set forth in Section (d)
of Annex A hereto.
"Net Income" shall mean, with respect to any Person, for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Notes" shall mean the EUR 200,000,000 10.625% Senior Subordinated
Notes due 2010 issued by the Company pursuant to the Indenture dated as of 8
March 2000, as amended by the First Supplemental Indenture, dated as of 31 May
2000 and by the Second Supplemental Indenture, dated as of 8 September 2000.
"Offeror" shall have the meaning as set forth in Section 6.1(b).
"Ordinary Shares" shall mean (except where the context otherwise
indicates) the Ordinary Shares, EUR 0.10 par value (or such other par value as
adjusted for any capital reduction), of the Company as constituted on the
Effective Date, and any capital stock into which such Ordinary Shares
Exh. 1 - 7
may thereafter be changed, and shall also include (i) capital stock of the
Company of any other class (regardless of how denominated) issued to the holders
of Ordinary Shares upon any reclassification thereof which is also not preferred
as to dividends or assets over any other class of shares of the Company and
which is not subject to redemption and (ii) ordinary shares of any successor or
acquiring corporation received by or distributed to the holders of Ordinary
Shares of the Company.
"Other Property" shall have the meaning set forth in Section 6.1(a).
"Outstanding" shall mean, when used with reference to Ordinary Shares,
at any date as of which the number of shares thereof is to be determined, all
issued Ordinary Shares, except Ordinary Shares then owned or held by or for the
account of the Company or any subsidiary thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Ordinary Shares.
"Par Value Subscription Reserve" shall mean a non-cash or book
transfer by the Company from `capital in excess of par' to `stated capital' as
reflected on the Company's balance sheet of the requisite amount up to EUR
50,000, to be used to satisfy payment in Euro of the nominal value of Warrant
Shares issuable upon exercise of all Warrants exercised by Holders during the
Exercise Period, subject to Section 4.2 hereof.
"Person" shall mean any individual, corporation, limited liability
company, partnership, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Body or other entity.
"Preferred Stock" shall mean any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions, or liquidation proceeds of such Person over the
holders or other Capital Stock issued by such Person.
"Private Placement Legend" shall mean the legend set forth on the
Warrant Certificates in the form as set forth in Section 3.2(c) hereof.
"Receivables and Related Assets" shall mean accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case relating to such receivables, including interests in
merchandise and goods, the sale or lease of which give rise to such receivable,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets, and proceeds of all the foregoing.
"Record Date" shall mean December 13, 2002, the date upon which
existing shareholders of the Company shall be determined for purposes of
receiving one Warrant for each outstanding whole Ordinary Share held by such
existing shareholders as of such date.
"Record Holder" shall mean each holder of outstanding Ordinary Shares
of the Company as of the Record Date.
"Redeemable Dividend" shall mean, for any dividend or distribution
with regard to Preferred Stock, the quotient of the dividend or distribution
divided by the difference between one and the maximum statutory federal or
national income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Preferred Stock.
"Restructuring" shall mean the financial restructuring of the Company
and its subsidiaries on the terms and subject to the conditions set forth in the
Restructuring Agreement, with such modifications as mutually agreed to by the
Company, the Consenting Noteholders signatories to the Restructuring Agreement,
Schoeller Logistic Technologies Holding GmbH and Schoeller Logistic Systems
GmbH.
Exh. 1 - 8
"Restructuring Agreement" shall mean that certain Restructuring
Agreement, dated as of 18 September 2002, among the Company, Schoeller Logistic
Technologies Holding GmbH, Schoeller Logistic Systems GmbH, and each of the
Consenting Noteholders signatories thereto.
"RPC" shall mean returnable plastic containers.
"SEC" shall mean the U.S. Securities and Exchange Commission or any
other U.S. federal agency then administering the 1933 Act, 1934 Act and other
federal securities laws.
"Subscription Contribution" shall have the meaning set forth in
Section 4.2(b).
"Subscription Right" shall have the meaning set forth in Section
4.1(a).
"Terms and Conditions" shall mean the terms and conditions of this
Warrant Certificate as set forth herein.
"Third Party Investment Banks" shall have the meaning as set forth in
Section (e) of Annex A attached hereto.
"Transfer" shall mean any disposition of any Warrant or Warrant Shares
or of any interest in either thereof, which would constitute a sale thereof
within the meaning of the 1933 Act.
"Transfer Agent" shall mean Deutsche Bank Trust Company Americas, a
New York corporation, in its capacity as the Company's transfer agent with
respect to the Warrants represented by Warrant Certificates, or any successor
thereto.
"Valuation Date" shall have the meaning as set forth in Section (a) of
Annex A attached hereto.
"Valuation Determination Date" shall mean the date of the final
determination of the equity value of the Company as of the Valuation Date as
provided in Annex A attached hereto.
"Valuation Instructions" shall have the meaning as set forth in
Section (f) of Annex A attached hereto and as attached as Annex D hereto.
"Valuation Period" shall have the meaning as set forth in Section (b)
of Annex A attached hereto.
"Warrant Agent" shall mean Commerzbank AG, Kaiserplatz, 60261
Frankfurt am Main, Germany, in its capacity as warrant agent for the Bearer
Warrants, or any successor thereto.
"Warrant Certificate" shall have the meaning set forth in Section
3.1(a).
"Warrant Register" shall have the meaning set forth in Section 5.2(a).
"Warrant Shares" shall mean the Ordinary Shares (at such par value
then in effect) deliverable upon exercise by the Holders of the Warrants, to be
issued in either registered or bearer form, as may be determined by the Company.
"Warrant Transfer Agent Agreement" shall mean that certain Warrant
Transfer Agent Agreement between the Company and the Transfer Agent, dated as of
December 31, 2002, as the same may be supplemented and amended from time to time
in accordance with its terms.
"Warrants" shall mean a single tranche of freely transferable and
assignable warrants which the Company has issued to the Record Holders in the
Aggregate Amount, each Warrant being issued for each outstanding whole Ordinary
Share held by Record Holders as of the Record Date, and
Exh. 1 - 9
each Warrant to be convertible upon exercise into the number of Warrant Shares
calculated using the principles set out on Annex B attached hereto.
2. APPOINTMENT OF TRANSFER AGENT
Pursuant to that certain Warrant Transfer Agent Agreement, the Company
has appointed the Transfer Agent to act as the Company's transfer agent with
respect to the Warrants represented by Warrant Certificates.
3. ISSUANCE OF WARRANTS
3.1 Warrant Certificates.
(a) Warrants, other than Bearer Warrants, issued to Holders
listed on the New York share register of the Company shall be represented by
certificates (each a "Warrant Certificate", and collectively "Warrant
Certificates") and registered in the name of such Holders on the Warrant
Register.
(b) Each Warrant Certificate shall represent such of the
outstanding Warrants as shall be specified therein and shall provide that such
Warrant Certificate represents the aggregate amount of outstanding Warrants
represented thereby as may from time to time be reduced or increased, as
provided in the Terms and Conditions of this Warrant Certificate, by adjustments
made on the records of the Transfer Agent.
3.2 Legends.
(a) Each Warrant Certificate registered in the name of a Holder
shall bear the following legend on the front thereof (in addition to any other
legends that may be required in accordance with this Warrant Certificate):
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THESE WARRANTS NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES ACT OR OTHER SECURITIES LAW.
TRANSFERS OF THIS CERTIFICATE MAY NOT BE EFFECTED WITHOUT EVIDENCE
SATISFACTORY TO THE COMPANY AND THE TRANSFER AGENT THAT ANY SUCH TRANSFER
MAY BE EFFECTED WITHOUT VIOLATING THE PROVISIONS OF THE SECURITIES ACT."
(b) Each Warrant Certificate registered in the name of an
Affiliate of the Company or any shares which constitute "restricted securities"
within the meaning of Rule 144 shall bear the private placement legend set forth
below (the "Private Placement Legend") on the front thereof (in addition to any
other legends that may be required in accordance with this Warrant Certificate)
unless there is delivered to the Transfer Agent an opinion of counsel reasonably
satisfactory to the Company and the Transfer Agent to the effect that neither
such legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the 1933 Act:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE OR OTHER SECURITIES LAW, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (i) THERE IS AN EFFECTIVE
REGISTRATION
Exh. 1 - 10
STATEMENT UNDER THE SECURITIES ACT AND SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS REGISTERED PURSUANT TO, EXEMPT FROM OR NOT SUBJECT TO ANY
OTHER APPLICABLE SECURITIES LAWS COVERING SUCH SECURITIES, OR (ii) THE
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS MADE IN ACCORDANCE WITH AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND THE COMPANY AND
THE TRANSFER AGENT RECEIVE AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES, REASONABLY SATISFACTORY TO THE COMPANY AND THE TRANSFER AGENT,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
3.3 Registration and Countersignature.
(a) The Transfer Agent, on behalf of the Company, shall number
and register the Warrant Certificates in the Warrant Register as they are issued
by the Company.
(b) Upon the issuance and execution of Warrant Certificates by
the Company, such Warrant Certificates shall be manually countersigned by the
Transfer Agent and shall not be valid for any purpose unless so countersigned.
The Transfer Agent shall, upon written instructions of any two Directors of the
Company as permitted under the Company's Articles of Association, initially
countersign, and deliver to the Holders, without further action by the Company,
an aggregate number of Warrant Certificates representing Warrants not in excess
of the Aggregate Amount, and shall countersign and deliver Warrant Certificates
as otherwise provided in this Warrant Certificate.
(c) The Company, the Transfer Agent, the Warrant Agent and the
German Transfer Agent may deem and treat the Holders of the Warrants as the
absolute owners thereof (notwithstanding any notation of ownership or other
writing thereon made by anyone), for all purposes, and neither the Company, the
Transfer Agent, the Warrant Agent, nor the German Transfer Agent shall be
affected by any notice to the contrary.
3.4 Execution of Warrant Certificates. Warrant Certificates shall
be signed on behalf of the Company by any two Directors of the Company as
permitted under the Company's Articles of Association, and as provided in the
Warrant Transfer Agent Agreement, and shall be dated the date of the
countersignature thereof by the Transfer Agent.
4. EXERCISE OF WARRANT
4.1 Terms of Warrants; Exercise of Warrants.
(a) Subject to the Terms and Conditions of this Warrant
Certificate, each Holder of a Warrant has the right (the "Subscription Right")
to subscribe to new Warrant Share(s). Prior to the exercise of a Subscription
Right, a Holder must first transfer its Warrants to the Clearstream clearing
system as set forth in Section 5.3 hereof, thus becoming a Bearer Holder of
Bearer Warrants governed by the terms and conditions (the "Global Bearer Warrant
Terms and Conditions") attached to the Global Bearer Warrant Certificate and
summarized in a circular distributed to all Bearer Holders in accordance with
applicable law.
(b) After completion of the transfer of a Holder's Warrants
contemplated in Section 4.1(a), a Subscription Right may be exercised at any
time during the Exercise Period to exercise Bearer Warrants and receive from the
Company the number of Warrant Shares which the Bearer Holder of the Warrant may
at the time be entitled to receive upon the exercise of such Warrants. The
number of Warrant Shares to be delivered upon the exercise of one Warrant shall
be calculated, subject to the provisions of this Section 4.1, in accordance with
Annex B attached hereto and is subject to adjustment under certain circumstances
as provided in Section 6 hereof. Pursuant to Annex B, depending on the Company's
equity value (as determined in accordance with the provisions of Annex A
attached hereto) as
Exh. 1 - 11
of the Valuation Date, Warrant Shares issuable upon exercise of all issued and
outstanding Warrants shall represent up to twenty-five percent (25%) of the
Company's total issued and outstanding ordinary share capital, including,
without limitation, Ordinary Shares to be issued to Consenting Noteholders in
exchange for Notes pursuant to the terms of the Restructuring Agreement, as of
the Valuation Date. Prior to the issuance of the Warrant Shares to each Bearer
Holder upon exercise of the Warrants, the Company will resolve to set off the
amount due in Euro from each exercising Bearer Holder to cover the nominal value
of the Warrant Shares issued upon exercise of the Warrants, against the
respective claim of each Bearer Holder against the Company to make a payment in
Euro from the Par Value Subscription Reserve, subject to the provisions of
Section 4.2 hereof. The number of Warrant Shares receivable upon exercise of a
Warrant is subject to adjustment under certain circumstances as provided in
Section 6 hereof. Each Warrant not exercised prior to the Expiration Time shall
become void and all rights thereunder and all rights in respect thereof under
these Terms and Conditions shall cease as of such time.
(c) The Company shall as soon as reasonably practicable prior to
the commencement of the Exercise Period shall notify the Holders, the Transfer
Agent, the Warrant Agent, and the German Transfer Agent in accordance with
Section 15.2 hereof (and the Bearer Holders in accordance with the Global Bearer
Warrant Terms and Conditions), which notice shall specify the number of Warrant
Shares issuable upon exercise and confirm the Expiration Time.
(d) Pursuant to these Terms and Conditions, a Bearer Holder may
validly exercise the Subscription Right at any time during the Exercise Period
and prior to the Expiration Time by (i) delivering a written subscription notice
(the "Subscription Notice") to the Warrant Agent, by use of a form available at
the office of the Warrant Agent or by providing all information and statements
requested in such Subscription Notice, (ii) issuing an irrevocable instruction
to the Warrant Agent to withdraw the Bearer Warrants from the collective safe
custody account, if any, maintained with the Warrant Agent or to credit the
Bearer Warrants to the account of the Warrant Agent with Clearstream and (iii)
paying in Euro to the Company any Subscription Contribution required for each
Bearer Warrant then exercised.
(e) Subject to Section 4.3 hereof, the Company shall issue the
Warrant Shares to a Bearer Holder upon the Subscription Right being validly
exercised. Payment of any Subscription Contribution not otherwise paid by the
Company shall be made in the form of wire transfer of immediately available
funds or a certified or official bank or bank cashier's check payable to the
order of the company. The Warrant Shares shall be issued in a form representing
good delivery for the purpose of settlement on the Frankfurt Stock Exchange on
the day on which the delivery is effected. Settlement of all Warrant Shares
issued upon exercise of the Bearer Warrants shall be effected as soon as
practicable, but in any event no later than ten (10) Business Days following the
Expiration Time. The Transfer Agent shall have no responsibilities relating to
the exercise of the Bearer Warrants or the issuance, execution or delivery of
any Warrant Shares.
(f) In the event that certificates for the Warrant Shares are
issued, such certificate or certificates shall have such legends printed thereon
as the Company shall deem appropriate to reflect any restrictions that may be
applicable to the Warrant Shares represented thereby under the 1933 Act.
(g) A Bearer Warrant may only be exercised in respect of all
Warrant Shares issuable upon the exercise of such Bearer Warrant.
(h) The Warrant Agent shall cause all Bearer Warrants exercised
to be cancelled pursuant to the standard procedures of the Warrant Agent and
Clearstream and in accordance with applicable law. The Warrant Agent shall
account promptly to the Company with respect to the Bearer Warrants exercised
and pay to the Company as soon as practicable, in Euro, any and all monies
received by the Warrant Agent in respect of any Subscription Contribution.
(i) The Transfer Agent shall keep copies of this Warrant
Certificate (including the Terms and Conditions hereof), the Global Bearer
Warrant Terms and Conditions and any written notices given or received under
either available for inspection by the Holders during normal business hours at
its office until the Expiration Time. The Company shall supply the Transfer
Agent, the Warrant Agent and
Exh. 1 - 12
the German Transfer Agent from time to time with such numbers of copies of this
Warrant Certificate and all written notices given by the Company as the Transfer
Agent, the Warrant Agent, and/or the German Transfer Agent may reasonably
request.
(j) The Company will ensure the availability of an account in the
Clearstream clearing system to which the Warrant Shares issued upon exercise of
the Bearer Warrants shall be delivered by the Warrant Agent. The settlement of
all Warrant Shares issued upon the exercise of the Bearer Warrants will be
effected as soon as practicable but in any event, not later than ten (10)
Business Days following the expiry of the Exercise Period.
4.2 Payment of Nominal Value.
(a) In order to ensure that Warrant Shares issued upon exercise
of the Warrants are legally issued and fully paid and non-assessable, the
Company shall pay the exercise price of the Warrants by setting off the amount
due in Euro from each exercising Bearer Holder to cover the nominal value of the
Warrant Shares issued upon exercise of the Warrants, against the respective
claim of each Bearer Holder against the Company to make a payment in Euro from
the Par Value Subscription Reserve. Such set-off will occur at the time of the
exercise of the Bearer Warrants, up to an aggregate maximum amount of EUR 50,000
(or such higher amount as the shareholders of the Company may determine after
the Effective Date, in accordance with the Articles of Association, is necessary
to comply with applicable securities laws and Dutch law), which set-off shall be
satisfied through application of the Par Value Subscription Reserve.
(b) If the aggregate nominal value of all Warrant Shares issued
upon exercise of all Bearer Warrants during the Exercise Period exceeds the
amount of the Par Value Subscription Reserve, EUR 50,000 (or such higher amount
established pursuant to Section 4.2(a) hereof), the Company shall so notify the
Holders and the Warrant Agent in writing in accordance with Section 15.2 hereof
(and the Bearer Holders in accordance with the Global Bearer Warrant Terms and
Conditions), and each exercising Bearer Holder shall satisfy its pro rata share
(the "Subscription Contribution") of such excess, based on the number of Warrant
Shares to be received by each Bearer Holder upon the exercise of its Bearer
Warrants, assuming for the purpose of such calculation that all outstanding
Warrants are held as Bearer Warrants. Such payment shall be denominated in Euro.
(c) In the event that it is determined by the Company that any
adverse tax consequence for the Company, either individually or in the
aggregate, is likely to arise that exceeds EUR 50,000 as a result of use of the
Par Value Subscription Reserve by the Company to fund the Subscription
Contribution, then the Company shall notify the Holders, the Transfer Agent, the
Warrant Agent, and the German Transfer Agent in accordance with Section 15.2
hereof (and the Bearer Holders in accordance with the Global Bearer Warrant
Terms and Conditions), and shall not use the Par Value Subscription Reserve to
fund the nominal value of the Warrant Shares issued upon exercise of the Bearer
Warrants on behalf of the Bearer Holders of the Bearer Warrants as provided in
Section 4.2(a) hereof. If the Company determines not to fund the nominal value
of the Warrant Shares via the set-off as provided above, then the Company shall
instead act upon the instructions of the Holders, which instructions are hereby
given to the Company by the Holders (with written notice setting forth full
details as to such action to be provided to the Warrant Agent) and are also
given as of the date hereof by the Bearer Holders pursuant to the Global Bearer
Warrant Terms and Conditions, to cause a sufficient number of Warrant Shares
issuable upon the exercise of the Bearer Warrants, assuming for the purpose of
such calculation that all outstanding Warrants are held as Bearer Warrants, to
be sold and the proceeds thereof shall be used to fund payment in Euro, on
behalf of the exercising Bearer Holders, of the entire amount of the aggregate
nominal value of all Warrant Shares issued upon exercise of all Bearer Warrants
by Bearer Holders thereof during the Exercise Period, and the number of Warrant
Shares deliverable under the Bearer Warrants to each exercising Bearer Holder of
a Bearer Warrant shall be reduced on a pro rata basis, assuming for the purpose
of such calculation that all outstanding Warrants are held as Bearer Warrants,
to take account of the Warrant Shares sold to fund the Subscription Contribution
of the Bearer Holders.
Exh. 1 - 13
(d) If, pursuant to the terms of Section 4.2(b) hereof, the
Subscription Contribution is to be used by exercising Bearer Holders to satisfy
their respective pro rata share of the amount by which the aggregate nominal
value of all Warrant Shares issued upon exercise of all Warrants during the
Exercise Period exceeds the amount of the Par Value Subscription Reserve, and
such Subscription Contribution by the exercising Bearer Holders is deemed to be
inconsistent with the exemption from registration under the 1933 Act upon which
the Company is relying with respect to the Warrant Shares receivable upon
exercise of the Warrants, then the Company shall notify the Holders, the
Transfer Agent, the Warrant Agent, and the German Transfer Agent in accordance
with Section 15.2 hereof (and the Bearer Holders in accordance with the Global
Bearer Warrant Terms and Conditions), and shall instead act upon the
instructions of the Holders, which instructions are hereby given to the Company
by the Holders (with written notice setting forth full details as to such action
to be provided to the Warrant Agent) and are also given as of the date hereof by
the Bearer Holders pursuant to the terms of the Bearer Warrants, to cause a
sufficient number of Warrant Shares issuable upon the exercise of the Bearer
Warrants, assuming for the purpose of such calculation that all Warrants are
held as Bearer Warrants, to be sold and the proceeds thereof shall be used to
fund payment in Euro, on behalf of the exercising Bearer Holders, of the entire
amount of the aggregate nominal value of all Warrant Shares issued upon exercise
of all Warrants by Bearer Holders, assuming all outstanding Warrants are held as
Bearer Warrants, thereof during the Exercise Period, and the number of Warrant
Shares deliverable under the Warrants to each exercising Bearer Holder shall be
reduced on a pro rata basis, assuming for the purpose of such calculation that
all outstanding Warrants are held as Bearer Warrants, to take account of the
Warrant Shares sold to fund the Subscription Contribution of the Bearer Holders.
(e) If the payment by the Bearer Holders of any Subscription
Contribution results, in the Company's sole determination, in the need to
register the issuance of the Warrant Shares with any Governmental Body pursuant
to any applicable securities laws (including, without limitation, any
registration required under applicable U.S. securities laws), the Company shall
cause such registration to be effected.
4.3 Payment of Taxes. The Company will pay any tax and other
governmental charges, including capital tax in the Netherlands
(kapitaalbelasting) and all documentary stamp taxes, attributable to the initial
issuance of Warrant Shares upon the exercise of Warrants, other than income
taxes imposed on the Bearer Holders, provided, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any certificates for
Warrant Shares in a name other than that of the Bearer Holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and neither the Company
nor the Warrant Agent shall be required to issue or deliver such Warrant Shares
unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax (and the Company shall have provided
the Warrant Agent with written confirmation as to the receipt of such payment)
or shall have established to the satisfaction of the Company and the Warrant
Agent that such tax has been paid. In no event shall the Warrant Agent have any
obligations hereunder with respect to the payment of any taxes or governmental
charges described in this Section 4.3 or otherwise.
4.4 Fractional Shares.
(a) The Company shall not be required to issue a fractional
Warrant Share upon exercise of any Bearer Warrant, and the number of Warrant
Shares issuable to a Bearer Holder upon exercise of a Bearer Warrant shall be
rounded down to the nearest whole number.
(b) As to any fraction of a Warrant Share which the Bearer
Holders of one or more Bearer Warrants, the Subscription Rights under which are
exercised in the same transaction, would otherwise be entitled to receive upon
such exercise but for this Section 4.4, the Company shall retain such fractional
Warrant Shares and dispose of such fractional Warrant Shares, retaining the
proceeds thereof for the benefit of the Company.
4.5 Payment of Fractional Cents of Subscription Contribution. If
a Bearer Holder's Subscription Contribution ends in a fraction of a Euro cent,
then such fraction of a Euro cent will be rounded up to the nearest whole Euro
cent.
Exh. 1 - 14
5. TRANSFERS AND EXCHANGES; RESTRICTIONS ON TRANSFERABILITY
5.1 No Required Registration. Notwithstanding any provision in
Section 5.2 to the contrary, the Company shall not be required to register
Warrants or Warrant Shares in the name of any Person who acquires a Warrant
Certificate (or any part thereof) or any Warrant Shares otherwise than in
accordance with this Warrant Certificate.
5.2 Transfers and Exchanges.
(a) The Transfer Agent shall keep at the office of the Transfer
Agent, subject to such reasonable regulations as it may prescribe, a register
(the "Warrant Register") for the registration of the Warrant Certificates and
transfers or exchanges of Warrant Certificates as herein provided and other
appropriate data as determined by the Transfer Agent. Warrants other than Bearer
Warrants shall be transferable only on the books of the Transfer Agent.
(b) A Holder may transfer its Warrant Certificates only upon
surrender thereof accompanied by the Form of Assignment set forth in Annex F
hereto and any other necessary documents, duly executed by the Holder thereof or
by the duly appointed legal representative thereof or by a duly authorized
attorney. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of a transfer by the Transfer Agent in the register.
(c) Upon any such registration of transfer, a new Warrant
Certificate shall be issued and executed by the Company and delivered to the
Transfer Agent for countersignature and delivery to the transferee(s) and the
surrendered Warrant Certificate shall be cancelled by the Transfer Agent.
Cancelled Warrant Certificates shall thereafter be disposed of by the Transfer
Agent in a manner consistent with the Transfer Agent's customary procedure and
in accordance with applicable law.
(d) Warrant Certificates may be exchanged at the option of the
Holder(s) thereof, when surrendered to the Transfer Agent at the office of the
Transfer Agent for another Warrant Certificate or other Warrant Certificates of
like tenor and representing in the aggregate a like number of Warrants. Warrant
Certificates surrendered for exchange shall be cancelled by the Transfer Agent.
Such cancelled Warrant Certificate shall then be disposed of by the Transfer
Agent in a manner consistent with the Transfer Agent's customary procedures and
in accordance with applicable law.
(e) When Warrant Certificates are presented to the Transfer Agent
with a request to register the transfer or to exchange them for an equal amount
of Warrants, the Transfer Agent shall register such transfer or make such
exchange as requested only if the Terms and Conditions of this Warrant
Certificate are satisfied and if the Transfer Agent's requirements for such
transactions are met.
(f) No service charge shall be imposed on the Holders for any
transfer or exchange of Warrant Certificates, but the Transfer Agent may impose
service charges for the account of the Company. Notwithstanding the foregoing,
the Company may require payment from a transferring or exchanging Holder of a
sum sufficient to cover any stamp or other governmental charge or tax that may
be imposed in connection with any such transfer or exchange.
(g) Upon the issuance and execution of new Warrant Certificates
by the Company, the Transfer Agent is hereby authorized, without any further
instructions on the part of the Company or its directors, to countersign such
new Warrant Certificates required pursuant to the provisions of this Section
5.2.
5.3 Transfers to Clearstream Clearing System. Upon the
presentation and surrender of Warrant Certificates to the Transfer Agent by any
Holder, accompanied by the Transfer Form set forth in Annex E hereto, together
with a written request to effect the exchange thereof for Bearer Warrants and
any other necessary documents, the Transfer Agent shall cancel such Warrant
Certificates and, upon the cancellation thereof, notify the German Transfer
Agent (by cable, telex or facsimile transmission, and with copy of such notice
to the Warrant Agent) to effect a booking into the account in the clearing
system
Exh. 1 - 15
of Clearstream established by the Holder of such Warrant Certificates of the
equivalent number of Warrants represented by such Warrant Certificates.
Thereafter, the Transfer Agent shall make the appropriate adjustments to the
Warrant Register. Any exchange described in this Section 5.3 shall be at the
sole expense of the Holder.
5.4 Special Transfer and Exchange Provisions.
(a) Private Placement Legend. Upon the transfer, exchange or
replacement of Warrant Certificates not bearing the Private Placement Legend,
the Transfer Agent shall make available for delivery Warrant Certificates that
do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Warrant Certificates bearing the Private Placement Legend, the
Transfer Agent shall make available for delivery only Warrant Certificates that
bear the Private Placement Legend in Section 3.2(b) unless there is delivered to
the Transfer Agent an opinion of counsel reasonably satisfactory to the Company
and the Transfer Agent to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the 1933 Act.
(b) General. By its acceptance of any Warrant Certificate bearing
the Private Placement Legend, each Holder of such Warrant Certificate shall be
deemed to acknowledge the restrictions on transfer of such Warrant Certificate
set forth in this Warrant Certificate and in the Private Placement Legend and
agrees that it will transfer such Warrant Certificate only as provided in this
Warrant Certificate. The Transfer Agent shall not register a transfer of any
Warrant Certificate unless such transfer complies with the conditions on
transfer of such Warrant Certificate set forth in this Warrant Certificate. In
connection with any transfer of Warrant Certificates, each Holder agrees by its
acceptance of the Warrant Certificate to furnish the Transfer Agent or the
Company such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made pursuant
to an exemption from, or a transaction not subject to, the registration
requirements of the 1933 Act; provided that the Transfer Agent shall not be
required to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
5.5 Maintenance of Listing on Frankfurt Stock Exchange. The
Company shall, at its own expense, maintain and, when necessary, increase the
listing on the Frankfurt Stock Exchange of the Bearer Warrants in the
Clearstream clearing system and all Warrant Shares issued or, to the extent
permissible under the applicable securities exchange rules, issuable upon the
exercise of each Warrant (whether the Warrant is maintained on the Warrant
Register or in the Clearstream clearing system) so long as any Ordinary Shares
shall be listed.
6. MERGER, CONSOLIDATION AND SALE OF ASSETS; ADJUSTMENTS
The number of Warrant Shares for which each Warrant is exercisable
shall be subject to adjustment from time to time as set forth in this Section 6.
6.1 Consolidations, Mergers and Sales of Assets.
(a) Subject to the provisions of subsection 6.1(b), in case of
the consolidation of the Company with, or merger of the Company with or into, or
of the sale of all or substantially all of the properties, business or assets of
the Company to, any Person, and in connection therewith consideration in the
form of ordinary shares of the successor or acquiring corporation, or any cash,
shares of capital stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of ordinary shares of any successor or acquiring corporation ("Other
Property") is to be received by or distributed to holders of Ordinary Shares (or
other securities or property purchasable upon exercise of Warrants) in exchange
therefor, the Warrants shall remain subject to the Terms and Conditions set
forth in this Warrant Certificate and each Warrant shall, after such
consolidation, merger or sale, entitle the Holder to receive upon exercise the
number of ordinary shares of capital stock and Other Property of the Company or
of such Person resulting from such consolidation or surviving such merger or to
which such sale shall be made, as the case may be, that would have been
distributable or payable on account of the Ordinary Shares (or other securities
or property purchasable
Exh. 1 - 16
upon exercise of Warrants) if such Warrant had been exercised immediately prior
to such merger, consolidation or sale (or, if applicable, the record date
therefor), subject to such modifications as may be deemed appropriate (as
determined by resolution of the Board of Directors, acting on an affirmative
vote of at least five of the seven members thereof or as otherwise provided in
the Company's Articles of Association) to implement the adjustments contemplated
in this Section 6.1(a); and in case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition applicable to the Warrants under this Warrant Certificate to be
performed and observed by the Company and all the obligations and liabilities
hereunder, subject to such modifications as may be deemed appropriate (as
determined by resolution of the Board of Directors, acting on an affirmative
vote of at least five of the seven members thereof or as otherwise provided in
the Company's Articles of Association) in order to provide for adjustments of
Ordinary Shares for which Warrants are exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section
6.1(a). For purposes of this Section 6.1, "ordinary shares" of the "successor or
acquiring corporation" shall include capital stock of such corporation of any
class which is not preferred as to dividends or assets over any other class of
shares of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of capital stock or other
securities which are convertible into or exchangeable for any such shares,
either immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such shares. The foregoing provisions of this Section 6.1 shall similarly
apply to successive reorganizations, reclassifications, mergers, consolidations
or disposition of assets.
(b) Notwithstanding the provisions of Section 6.1(a) hereof, (i)
if (A) the Company merges or consolidates with, or sells all or substantially
all of its property, business or assets to, another Person, or (B) a Person or
Persons acting in concert with such Person (collectively, the "Offeror") make an
offer to the holders of any class of voting or non-voting equity share capital
of the Company, and in each of (A) and (B) above consideration is payable to
holders of Ordinary Shares in exchange for their Ordinary Shares in connection
with such merger, consolidation, sale, or offer which consists solely of cash,
where the equity value of the Company, as determined by multiplying the
consideration payable to the holders of Ordinary Shares by the appropriate
number in the fifth column of Annex C hereto (using the aggregate consideration
payable to holders of Ordinary Shares as the observable market value for the
purposes of defining the observable market value in the fourth column of Annex C
hereto), is in an applicable amount set forth in the second column of Annex B
hereto or (ii) in the event of the dissolution, liquidation or winding up of the
Company where the equity value of the Company, as determined using the valuation
procedures established pursuant to Annex A hereto, is in an applicable amount
set forth in the second column of Annex B hereto, then (I) in the case of (i)
above, a Holder, in the event that such Holder notifies the Company in writing
that it wishes to participate in any such merger, consolidation, sale, offer or
proposal, and (II) in the case of (ii) above, each Holder, shall be entitled to
receive distributions on the date of such event on an equal basis with holders
of Ordinary Shares (or other securities issuable upon exercise of such Holder's
Warrants) as if such Holder's Warrants had been exercised immediately prior to
such event, less any Subscription Contribution with respect to the Warrant
Shares (or other securities issuable upon exercise of such Holder's Warrants)
into which such Warrants are exercisable. Upon receipt of such payment by a
Holder (or by an electing Holder in the case of (I) above) referred to in the
preceding sentence, if any, the rights of a Holder (or of an electing Holder in
the case of (I) above) shall terminate and cease and such Warrants shall expire.
In case of any such merger, consolidation, sale of assets or offer or proposal
in which the Holder has elected to participate, the surviving or acquiring
Person and, in the event of any dissolution, liquidation or winding up of the
Company, the Company shall deposit promptly with the Transfer Agent the funds,
if any, necessary to pay the Holders. After receipt of such deposit from such
Person or the Company and after receipt of surrendered Warrant Certificates, the
Transfer Agent shall make payment by delivering a check in the amount as is
appropriate (or, in the case of consideration other than cash, such other
consideration as is appropriate) to such Person or Persons as it may be directed
in writing by the Holder surrendering such Warrant. In the case of (i) above, in
the event that a Holder of Warrants does not accept such offer or proposal by
the close of such merger, consolidation or sale, such Holder's Warrants shall
remain outstanding unless the Offeror has offered to issue a new warrant to such
Holder in exchange for such
Exh. 1 - 17
Holder's Warrants, which new warrant (to be substantially on the same terms and
conditions as the Warrant set forth in this Warrant Certificate, as determined
by resolution of the Board of Directors, acting on an affirmative vote of at
least five of the seven members thereof; provided, that if an affirmative vote
of at least five of the seven members of the Board of Directors cannot be
obtained, the Board of Directors shall designate an internationally recognized
investment bank (not affiliated with the Company or any of its shareholders) to
determine whether or not the terms and conditions of any such new warrants are
substantially the same as those set forth in these Terms and Conditions, which
determination of such investment bank shall be binding on the Board of Directors
and shall be given effect by a resolution of the Board of Directors) shall be
exercisable for such number of shares, securities or other property of the
Offeror per Ordinary Share as the Offeror offered to holders of Ordinary Shares
in its offer or proposal thereto. Notwithstanding anything to the contrary in
Section 6.1(b)(i), if Holders representing an aggregate of no less than
sixty-six and two-thirds percent (66?%) of the total outstanding Warrants elect
to participate in the merger, consolidation, sale, offer or proposal, then the
remaining Holders shall be obligated to participate in such merger,
consolidation, sale, offer or proposal on the same terms and conditions as those
Holders electing to participate.
(c) Notwithstanding the provisions of Section 6.1(a) hereof, in
the event that any Offeror is required under applicable Dutch or German law to
make an offer to the holders of any class of voting or non-voting equity share
capital and to the holders of any class of voting or non-voting equity share
capital of the Company, then the Company, so far as it is able, shall ensure
that the Offeror makes an appropriate offer or proposal, in relation to the
Warrants, to each Holder thereof. The Board of Directors shall obtain advice
from an independent financial advisor on the offer or proposal to the Holders
and shall as soon as reasonably practicable, and subject to any rule of law or
regulation, make the substance of such advice known to the Holders of Warrants,
together with the Board of Directors' view on such offer or proposal. In the
event that a Holder accepts such offer or proposal by the close of such offer or
proposal, the rights of such Holder to exercise the Warrants in respect of which
such Holder has accepted such offer or proposal shall, subject to receipt by
such Holder, or such other Person as such Holder may direct to the Offeror in
writing, of the payment in cash or the shares, securities or other property to
be received by the Holder in connection with such offer or proposal, terminate
on acceptance of such offer or proposal and such Warrants shall expire. In the
event that a Holder of Warrants does not accept such offer or proposal by the
close of such offer or proposal, such Holder's Warrants shall remain outstanding
unless the Offeror has offered to issue a new warrant to such Holder in exchange
for such Holder's Warrant, which new warrant (to be substantially on the same
terms and conditions as the Warrant set forth in this Warrant Certificate, as
determined by resolution of the Board of Directors, acting on an affirmative
vote of at least five of the seven members thereof; provided, that if an
affirmative vote of at least five of the seven members of the Board of Directors
cannot be obtained, the Board of Directors shall designate an internationally
recognized investment bank (not affiliated with the Company or any of its
shareholders) to determine whether or not the terms and conditions of any such
new warrants are substantially the same as those set forth in these Terms and
Conditions, which determination of such investment bank shall be binding on the
Board of Directors and shall be given effect by a resolution of the Board of
Directors), shall be exercisable for such number of shares, securities or other
property of the Offeror per Ordinary Share as the Offeror offered to holders of
Ordinary Shares in its offer or proposal thereto. Upon such offer by the Offeror
to such Holder, the Holder shall be required to accept such new warrant in
exchange for its Warrant, whereupon, subject to receipt by the Holder of such
new warrant, the rights of such Holder shall terminate and such Holder's
Warrants shall expire.
6.2 Adjustment of Number of Warrant Shares. The number of Warrant
Shares issuable upon exercise of each Warrant shall be subject to adjustment
from time to time as follows, provided, that where any adjustments are made in
accordance with the following to the aggregate number of Warrant Shares to be
received on exercise of the Warrants, such adjustment shall be allocated between
each of the Warrants on a pro rata basis:
(a) In case the Company shall (i) subdivide its issued and
outstanding Ordinary Shares, (ii) combine its issued and outstanding Ordinary
Shares into a smaller number of Ordinary Shares, or (iii) issue any shares of
its share capital in a reclassification of the Ordinary Shares (other than
Exh. 1 - 18
a reclassification in connection with a merger, consolidation, or other business
combination which will be governed by Section 6.1 hereof), the number and kind
of Ordinary Shares or share capital of the Company issuable upon the exercise of
a Warrant (as in effect immediately prior to such dividend, distribution,
subdivision, combination or issuance) shall be proportionately adjusted so that
the Holder of any Warrant thereafter exercised may receive the aggregate number
and kind of shares in the share capital of the Company that such Holder would
have been entitled to receive immediately following any of the events described
above if such Warrant had been exercised immediately prior to the happening of
such event or any record date with respect thereto (with any record date
requirement being deemed to have been satisfied).
(b) If at any time the Company shall take a record of the holders
of its Ordinary Shares for the purpose of entitling them to receive any dividend
or other distribution of:
(i) any Ordinary Shares, or
(ii) any warrants or other rights to subscribe for or
purchase any Ordinary Shares (including, without limitation, Ordinary Shares
issued upon exercise of management options granted pursuant to the Management
Share Incentive Plan),
such that any such issuance (the "Equity Issuance"), either individually or in
the aggregate, exceeds 0.5% of the total issued and outstanding equity of the
Company immediately following the Effective Date, the table in Annex B will be
adjusted as follows: (i) each number in Columns 3 and 4 will be multiplied by a
factor equal to X/(X+Y) where X is the total number of Ordinary Shares
post-exercise of Warrants as if the Equity Issuance had not occurred and Y is
the number of Ordinary Shares issued pursuant to the Equity Issuance; and (ii)
each number in Column 2 will be multiplied by a factor equal to (X+Y)/X where X
is the total number of Ordinary Shares post-exercise of Warrants as if the
Equity Issuance had not occurred and Y is the number of Ordinary Shares issued
pursuant to the Equity Issuance.
(c) (i) If any event (other than an event which is subject to
paragraphs (a) and (b) of this Section 6.2) shall occur as to which the other
provisions of Section 6.1 or this Section 6.2 are not strictly applicable, but
the failure to make any adjustment would have the effect of depriving Holders of
the benefit of all or a portion of the exercise rights in respect of any Warrant
in accordance with the essential intent and principles of this Section 6.2,
then, in each such case, the Board of Directors shall provide for an appropriate
adjustment, on a basis consistent with the essential intent and principles
established in this Section 6.2 necessary to preserve, without dilution, such
exercise rights. The Company will promptly send a written notice setting forth
full details with respect to such adjustments to the Transfer Agent and the
Holders, and the Company shall make the adjustments described therein.
(ii) The Company will not, by amendment of its Articles of
Association or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Warrants, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders thereof against
dilution or other impairment.
(d) No adjustment in the aggregate number of Warrant Shares shall
be required unless such adjustment (plus any other adjustments not previously
made by reason of this paragraph (d)) would require an increase or decrease of
at least 0.5% in the number of Warrant Shares; provided, however, that any
adjustments that by reason of this paragraph (d) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations shall be made to the nearest one thousandth of a Warrant Share.
(e) If the Company shall take a record of the holders of its
Ordinary Shares for the purpose of entitling them to receive a dividend or
distribution or subscription or purchase rights and shall, thereafter and before
the distribution to any shareholders thereof, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be
Exh. 1 - 19
required by reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
(f) The Transfer Agent, the Warrant Agent and the German Transfer Agent
shall not be required to make any determinations with respect to the adjustments
described in this Section 6.
7. ACCELERATION
7.1 Acceleration Offer. Notwithstanding the provisions of Section 6 hereof,
if, at any time after the Effective Date of the Restructuring, but prior to the
termination of the Exercise Period, (i) the Company receives an offer from any
Person or (ii) an offer is made by any Person to the holders of any class of
voting or non-voting equity share capital of the Company, in each of (i) and
(ii) above, which offer includes an offer to the Company to consolidate or merge
with or into another corporation (where the Company is not the surviving
corporation or where there is a change in or distribution with respect to the
Ordinary Shares of the Company), or sell, transfer or otherwise dispose of all
or substantially all of the Company's property, assets or business to another
corporation prior to the Expiration Time, following the Board of Directors'
formal determination to accept any such offer, and pursuant to the terms of such
offer, merger, consolidation or disposition of assets, ordinary shares of the
successor or acquiring corporation, or any cash, other securities or Other
Property are to be received by or distributed to the holders of Ordinary Shares
of the Company that, after adjustment of such offer by multiplying such offer by
the appropriate number in the fifth column of Annex C hereof (using the
aggregate consideration payable to holders of Ordinary Shares as the observable
market value for the purposes of defining the observable market value in the
fourth column of Annex C hereof), values the Company at a level which would
entitle the Warrants to be exercised pursuant to the equity values listed in the
second column of Annex B hereof attached hereto (an "Acceleration Offer"), then
immediately prior to the closing of the transaction to which the Acceleration
Offer is related, Warrants in respect of which exercise has been elected
pursuant to Section 7.2 hereof shall (y) accelerate as to the applicable amount
set forth in the second column of Annex B and (z) be exchanged for Warrant
Shares.
7.2 Acceleration Offer Exercise Period. In the event of an Acceleration
Offer, for the period immediately following the Board of Directors' formal
determination to accept any Acceleration Offer (acting on the affirmative vote
of at least five of the seven members of the Board of Directors or as otherwise
provided in the Company's Articles of Association) and prior to the closing of
the transaction to which the Acceleration Offer relates (the "Acceleration Offer
Exercise Period"), a Holder may exercise, as provided in Section 4 hereof, the
Warrant, on any Business Day, for all or part of the number of Warrant Shares
issuable thereunder. Upon the occurrence of an Acceleration Offer, the Warrant
shall be exercisable for such number of Warrant Shares calculated by (a)
multiplying the Acceleration Offer by the appropriate number in the fifth column
of Annex C hereof (using the aggregate consideration payable to holders of
Ordinary Shares as the observable market value for the purposes of defining the
observable market value in the fourth column of Annex C hereof) and (b) and by
matching the value of such adjusted Acceleration Offer with the applicable
amount set forth in the second column of Annex B hereof attached hereto,
including any applicable adjustments provided under Section 6 of this Warrant
Certificate. Each Warrant not exercised prior to the end of the Acceleration
Offer Exercise Period shall become void and all rights thereunder and all rights
in respect thereof under this Warrant Certificate shall cease as of such time;
provided, that any Acceleration Offer Exercise Period shall remain open for at
least twenty (20) Business Days.
8. NOTICES TO WARRANT HOLDERS
8.1 Notice of Adjustments. Whenever the number of Warrant Shares for which
each Warrant is exercisable shall be adjusted pursuant to Sections 6.1 or 6.2,
the Company shall forthwith prepare a certificate to be executed by any two
Directors of the Company as permitted under the Company's Articles of
Association setting forth, in reasonable detail, the event requiring the
adjustment and the method by which such adjustment was calculated (including a
description of the basis on which the Board of Directors determined the fair
value of any shares of stock, other securities or property or warrants or other
subscription or purchase rights referred to in Sections 6.1(a) or 6.2 hereof,
specifying the number of Warrant Shares for which each Warrant is exercisable
and (if such adjustment was made
Exh. 1 - 20
pursuant to Section 6.1(a), 6.2(a), 6.2(b) or 6.2(c)) hereof describing the
number and kind of any other shares or Other Property for which each Warrant is
exercisable after giving effect to such adjustment or change. The Company shall
promptly cause a signed copy of such certificate to be delivered to each Holder
and the Transfer Agent in accordance with Section 15.2 hereof. The Company shall
keep at its office or agency designated pursuant to Section 13 copies of all
such certificates and cause the same to be available for inspection at said
office during normal business hours by any Holder or any prospective purchaser
of a Warrant designated by a Holder thereof.
8.2 Notice of Corporate Action or Acceleration. If at any time during
the Exercise Period:
(a) the Company shall take a record of the holders of its Ordinary
Shares for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of capital stock of any class or any other securities
or property, or to receive any other right;
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
consolidation or merger of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holders (i) at
least 30 days' prior written notice (with a copy to the Transfer Agent) of the
date on which a record date shall be selected for such dividend, distribution or
right or for determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 30 days' prior
written notice (with a copy to the Transfer Agent) of the date when the same
shall take place. Such notice in accordance with the foregoing clause also shall
specify (i) the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, the date on which the holders of Ordinary
Shares shall be entitled to any such dividend, distribution or right, and the
amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and the
time, if any such time is to be fixed, as of which the holders of Ordinary
Shares shall be entitled to exchange their Ordinary Shares for securities or
other property deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up. Each such written notice shall be delivered to Holders and the Transfer
Agent in accordance with Section 15.2(a) hereof.
9. NO IMPAIRMENT
(a) The Company shall not by any action, including, without
limitation, amending its Articles of Association or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of the Warrants, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holders
against impairment. Without limiting the generality of the foregoing, the
Company will (a) take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
non-assessable Warrant Shares upon the exercise of the Warrants and (b) use its
best efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant Certificate.
Exh. 1 - 21
(b) Upon the request of a Holder, the Company will at any times during
the period each Warrant is outstanding acknowledge in writing, in form
satisfactory to the Holder, the continuing validity of each Warrant and the
obligations of the Company hereunder.
10. RESERVATION AND AUTHORIZATION OF ORDINARY SHARES; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL BODY
(a) The Company will at all times reserve and keep available for
issuance upon the exercise of Warrants, free of preemptive rights and free from
all taxes, liens, charges and security interests with respect to the issuance
thereof, such number of its authorized but unissued Warrant Shares as will be
sufficient to permit the exercise in full of all outstanding Warrants.
(b) The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will be (i) upon payment of Subscription Contribution
with respect to the Warrant Shares issuable upon the exercise of any such
Warrants and (ii) issuance of the Warrant Shares, duly authorized and validly
issued, fully paid and not subject to any calls for funds and nonassessable,
free of preemptive rights (other than those validly and effectively disapplied
or waived) and free from all taxes, liens, charges and security interests with
respect to the issuance thereof. Any Warrant Shares which may be issued upon
exercise of Warrants shall rank pari passu with all the Ordinary Shares then in
issue save that they shall not entitle the holder of the Warrant Shares to any
dividends or distributions declared, paid or made on the Ordinary Shares by
reference to any record date prior to, or in respect of any period ending prior
to, the date of issue.
(c) Before taking any action which would result in an adjustment in
the number of Warrant Shares for which each Warrant is exercisable, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto,
as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
(d) If any Warrant Share required to be reserved for issuance upon
exercise of Warrants require registration or qualification with any Governmental
Body or other governmental approval or filing under any federal or state law
before such shares may be so issued, the Company will in good faith and as
expeditiously as possible and at its expense endeavor to cause such shares to be
duly registered or such approval to be obtained or filing made.
11. TAKING OF RECORD; SHARE CAPITAL AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to
the holders of its Ordinary Shares with respect to which any provision of
Section 6.2 hereof refers to the taking of a record of such holders, the Company
will in each such case take such a record and will take such record as of the
close of business on a Business Day. The Company will not at any time, except
upon dissolution, liquidation or winding up of the Company, close its stock
transfer books or warrant transfer books so as to result in preventing or
delaying the exercise or transfer of any Warrant.
12. LOSS OR MUTILATION
Upon receipt by the Company and the Transfer Agent from any Holder of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of a Warrant Certificate and indemnity
reasonably satisfactory to them, and in case of mutilation upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof a new
Warrant Certificate of like tenor to such Holder; provided, in the case of
mutilation, no indemnity shall be required if the Warrant Certificate in
identifiable form is surrendered to the Company or the Transfer Agent for
cancellation.
13. OFFICE OF COMPANY
As long as any Warrants remain outstanding, the Company shall maintain
an office or agency (which may be the principal executive offices of the
Company) where the Warrants Certificates
Exh. 1 - 22
may be presented for exercise, registration of transfer, division or combination
as provided in this Warrant Certificate.
14. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by a Holder
to purchase shares of Ordinary Shares, and no enumeration herein of the rights
or privileges of a Holder hereof, shall give rise to any liability of such
Holder for any payment with respect to any Ordinary Shares or as a shareholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
The Transfer Agent shall incur no liability by reason of any exercise
or failure to exercise any discretion given to it in this Warrant Certificate
and shall assume no liability except to perform its obligations in good faith to
the extent they are specifically set forth in this Warrant Certificate without
gross negligence or willful misconduct. In no event shall the Transfer Agent or
any of its agents be liable for any indirect, special, punitive or consequential
damages.
15. MISCELLANEOUS
15.1 Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of a Holder or the Transfer
Agent shall operate as a waiver of such right or otherwise prejudice such
Holder's or the Transfer Agent's rights, powers or remedies. If the Company
fails to make, when due, any payments provided for hereunder, or fails to comply
with any other provision of this Warrant, the Company shall pay to the Holder
such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by Holder in collecting any amounts due pursuant hereto or
in otherwise enforcing any of its rights, powers or remedies hereunder.
15.2 Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made to Holders,
the Company, the Transfer Agent, the Warrant Agent and/or the German Transfer
Agent pursuant to the provisions of this Warrant Certificate shall be
sufficiently given or made if in writing and either delivered in person with
receipt acknowledged or sent by registered or certified air mail, return receipt
requested, postage prepaid, or by overseas courier, or by telecopy and confirmed
by telecopy answerback, addressed as follows:
(a) If to any Holder or holder of Warrant Shares, at the addresses on
file with the Company or the Transfer Agent maintained for such purpose.
(b) If to the Company at:
IFCO Systems N.V.
Zugspitzstrasse 7
D-82049 Pullach
Germany
Telephone: +49 89 744 91 244
Facsimile: +49 89 744 91 239
Attention: Karl Pohler, Michael Nimtsch
Exh. 1 - 23
(c) If to the Transfer Agent at:
Deutsche Bank Trust Company Americas
60 Wall Street
New York, NY 10005
USA
Attn: Corporate Trust and Agency Services
Mail Stop: MSNY60-2515
(d) If to the German Transfer Agent at:
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt am Main
Germany
Telephone: +49 69 910 35274
Fax: +49 69 910 38794
Attn: Dagmar Habersack
(e) If to the Warrant Agent at:
Commerzbank AG
Kaiserplatz
60261 Frankfurt am Maim
Germany
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback, or three (3) Business Days after the same shall have been deposited
in the mail or sent by overseas courier. Failure or delay in delivering copies
of any notice, demand, request, approval, declaration, delivery or other
communication to the person designated above to receive a copy shall in no way
adversely affect the effectiveness of such notice, demand, request, approval,
declaration, delivery or other communication.
15.3 Remedies. Each Holder and holder of Warrant Shares, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights hereunder. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Warrant
Certificate and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
15.4 Successors and Assigns. This Warrant Certificate and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and assigns of the Holders. The
provisions of this Warrant Certificate are intended to be for the benefit of all
Holders from time to time of each Warrant and shall be enforceable by any such
Holder or holder of Warrant Shares.
15.5 Amendment. The Company, acting on an affirmative vote of at least
five of the seven members of its Board of Directors, with the written consent of
the Transfer Agent and Holders of a majority of the then-outstanding Warrants
may from time to time supplement or amend the terms of the Warrants and/or this
Warrant Certificate. The consent of each Holder of Warrants shall be required
for any amendment to this Warrant Certificate or the Warrants held on the
Warrant Register pursuant to which the number of Warrant Shares issuable upon
exercise of the Warrants would be decreased (other than in accordance with
Sections 6.1 and 6.2 hereof), the Exercise Period with respect to the Warrants
would be reduced, or any other changes that could reasonably be expected to have
a material adverse
Exh. 1 - 24
effect on the Holders rights hereunder or with respect to the Warrants.
Notwithstanding the foregoing, the Company and the Transfer Agent may make,
without the consent of the Holders, any changes or corrections to this Warrant
Certificate (i) that they deem appropriate to cure any defective or inconsistent
provision or manifest error herein contained or (ii) that they may deem
necessary or desirable and that shall not adversely affect the interests of the
Holders.
15.6 Severability. Wherever possible, each provision of this Warrant
Certificate shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant Certificate shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Warrant.
15.7 Headings. The headings used in this Warrant Certificate are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant Certificate.
15.8 Governing Law.
(a) This Warrant Certificate and the Warrants represented thereby
shall be governed by and construed in accordance with the laws of the Federal
Republic of Germany. Place of performance shall be Frankfurt am Main, Germany.
Place of jurisdiction shall be Frankfurt am Main, Germany. The Holders of
Warrants shall be entitled to assert their claims also before a competent court
in The Netherlands. In any such court the laws of the Federal Republic of
Germany shall apply as well.
(b) To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its respective obligations under
this Warrant Certificate and the Warrants to the fullest extent permitted by
law.
15.9 Benefits of Warrant Certificate; Status as Shareholder.
(a) Nothing in this Warrant Certificate shall be construed to give to
any Person other than the Company and the Holder of the Warrants represented
hereby any legal or equitable right, remedy or claim under this Warrant
Certificate; but this Warrant Certificate shall be for the sole and exclusive
benefit of the Company and the Holders of the Warrants.
(b) Prior to the exercise of the Warrants, no Holder of a Warrant, as
such, shall be entitled to any rights of a shareholder of the Company,
including, without limitation, the right to receive dividends or subscription
rights, the right to vote, to consent, to exercise any preemptive right, to
receive any notice of meetings of shareholders for the election of directors of
the Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for herein. Except as
otherwise provided for herein, the Holders of the Warrants are not entitled to
share in the assets of the Company in the event of the liquidation, dissolution
or winding up of the Company's affairs.
15.10 Counterparts. This Warrant Certificate may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
15.11 Availability of Information Concerning the Company; Provision of
Certain Reports. The Company currently files certain periodic reports and other
information with the SEC. Such reports and other information filed with the SEC
can be read and copied at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. The SEC maintains an internet site at
http://www.sec.gov that contains reports, proxy statements and other information
regarding issuers that file electronically with the SEC, including the Company.
The Company shall, upon the written request of any Holder, provide, without
charge, a copy of the Company's most current annual report on Form 20-F and
copies of any other reports and other communications sent to the Company's
shareholders that a
Exh. 1 - 25
Holder may reasonably request from the Company in writing.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Exh. 1 - 26
ANNEX A
VALUATION OF THE WARRANTS
(a) As soon as possible after 31 October 2005 (the "Valuation Date"),
the Board of Directors will use the Market Method described in Section (b)
hereof to determine the equity value of the Company as of the Valuation Date for
the purposes of determining the number of Ordinary Shares issuable upon exercise
of the Warrants.
(b) The Company's equity value shall be determined by (i) taking the
daily weighted (by reference to volume) average Ordinary Share price for a
period starting from thirty (30) trading days prior to the Valuation Date and
ending thirty (30) trading days after the Valuation Date (the "Valuation
Period"), (ii) multiply such share price by the average number of Ordinary
Shares issued and outstanding throughout this period, and (iii) multiplying the
observed market value by the factor referenced in Annex C attached hereto (the
"Market Method").
(c) Notwithstanding the foregoing, if a majority of the Board of
Directors determines that there has been a suspicion of market manipulation
during the Valuation Period, then the Board of Directors will also determine the
Company's equity value using the Multiple Method described in Section (d) below,
and to the extent the Market Method differs from the Multiple Method by ten
percent (10%) or more, then the matter shall be referred by the Company to the
President of the Institute of Chartered Accountants of England and Wales for the
purposes of appointing a single arbitrator (the "Arbitrator"). If the variance
between the Market Method calculation and the Multiple Method calculation is
less than ten percent (10%), the Board of Directors shall use the equity value
determined by the Market Method to determine the number of Ordinary Shares
issuable pursuant to the Warrants.
(d) For the purposes of this Warrant Certificate, the equity
valuation using the Multiple Method shall be calculated by (i) multiplying the
reported EBITDA for the Company in the year ended on the Valuation Date using a
multiple of eight (8) and (ii) subtracting net indebtedness, which is calculated
as all funded debt instruments (including capital leases and preference shares)
less cash and cash equivalents (the "Multiple Method").
(e) Upon appointment, the Arbitrator shall commission and review the
valuation opinions provided by three (3) independent international investment
banks (the "Third Party Investment Banks"). Each of the following three parties
shall select one of the three Third Party Investment Banks: (i) the three
directors appointed to the New Board by the Ad Hoc Committee (or its successor),
(ii) the three directors appointed to the New Board by the Principal
Shareholders, and (iii) the Arbitrator. At the direction of the Arbitrator, the
Company shall allocate the number of Ordinary Shares issuable pursuant to the
Warrants, based on an equity valuation equal to the average of the valuation
analyses of the three Third Party Investment Banks.
(f) A copy of the valuation instructions (the "Valuation
Instructions") to be provided to the three Third Party Investment Banks for use
in preparing their valuation analyses are set forth as Annex D attached hereto.
(g) If, on the Valuation Date, the Ordinary Shares of the Company are
not listed on the Frankfurt Stock Exchange or any other stock exchange, then the
matter shall be referred by the Company to the Arbitrator as described above in
Section (c) of this Annex A for the purpose of determining the Company's equity
value.
Exh. 1 - 27
ANNEX B
EQUITY OVER WHICH THE WARRANTS ARE EXERCISABLE
- -----------------------------------------------------------------------------------------------------------------
Number of shares Exercisable if Equity Value Noteholder Current
over which equals or falls between4 Shareholding Shareholder
Warrants may be post-exercise of Shareholding post-
exercised123 Warrants exercise of
Warrants
- -----------------------------------------------------------------------------------------------------------------
1.1 (Euro)310,000,000 and (Euro)329,999,999 89.0% 11.0%
- -----------------------------------------------------------------------------------------------------------------
2.3 (Euro)330,000,000 and (Euro)349,999,999 88.0% 12.0%
- -----------------------------------------------------------------------------------------------------------------
3.4 (Euro)350,000,000 and (Euro)369,999,999 87.0% 13.0%
- -----------------------------------------------------------------------------------------------------------------
4.7 (Euro)370,000,000 and (Euro)389,999,999 86.0% 14.0%
- -----------------------------------------------------------------------------------------------------------------
5.9 (Euro)390,000,000 and (Euro)409,999,999 85.0% 15.0%
- -----------------------------------------------------------------------------------------------------------------
7.1 (Euro)410,000,000 and (Euro)429,999,999 84.0% 16.0%
- -----------------------------------------------------------------------------------------------------------------
8.4 (Euro)430,000,000 and (Euro)449,999,999 83.0% 17.0%
- -----------------------------------------------------------------------------------------------------------------
9.8 (Euro)450,000,000 and (Euro)469,999,999 82.0% 18.0%
- -----------------------------------------------------------------------------------------------------------------
11.1 (Euro)470,000,000 and (Euro)489,999,999 81.0% 19.0%
- -----------------------------------------------------------------------------------------------------------------
12.5 (Euro)490,000,000 and (Euro)509,999,999 80.0% 20.0%
- -----------------------------------------------------------------------------------------------------------------
14.6 (Euro)510,000,000 and (Euro)529,999,999 78.5% 21.5%
- -----------------------------------------------------------------------------------------------------------------
16.9 (Euro)530,000,000 and (Euro)549,999,999 77.0% 23.0%
- -----------------------------------------------------------------------------------------------------------------
19.2 (Euro)550,000,000 and (Euro)569,999,999 75.5% 24.5%
- -----------------------------------------------------------------------------------------------------------------
21.6 (Euro)570,000,000 and (Euro)589,999,999 74.0% 26.0%
- -----------------------------------------------------------------------------------------------------------------
24.1 (Euro)590,000,000 and (Euro)609,999,999 72.5% 27.5%
- -----------------------------------------------------------------------------------------------------------------
26.8 (Euro)610,000,000 and (Euro)629,999,999 71.0% 29.0%
- -----------------------------------------------------------------------------------------------------------------
29.5 (Euro)630,000,000 and (Euro)649,999,999 69.5% 30.5%
- -----------------------------------------------------------------------------------------------------------------
32.3 (Euro)650,000,000 and (Euro)669,999,999 68.0% 32.0%
- -----------------------------------------------------------------------------------------------------------------
35.3 (Euro)670,000,000 and (Euro)689,999,999 66.5% 33.5%
- -----------------------------------------------------------------------------------------------------------------
38.5 (Euro)690,000,000 and above 65.0% 35.0%
- -----------------------------------------------------------------------------------------------------------------
____________________
1 For the avoidance of doubt, the proportion of equity over which Warrants
may be exercised will be the specific amount set out in the schedule above
and will not be a cumulative amount for valuation ranges up to the
determined valuation.
2 Assumes there are 100 shares issued and outstanding immediately following
the closing of the Restructuring with Current Shareholders holding 10
shares and Noteholders holding 90 shares.
3 For the avoidance of doubt, numbers in this column have been rounded to one
decimal place. The true number of shares shall be calculated more
accurately by reference to the exact percentages as set out in the final
two columns of this table.
4 In the event that any Notes are not exchanged on or prior to the Effective
Date, the values in this column shall be reduced by the lower of (i) the
face value of the Notes outstanding and not exchanged pursuant to a Private
Subscription plus all accrued and unpaid interest thereon as of the
Valuation Date, or (ii) the aggregate cash amount or, in the case of
non-cash consideration, the fair market value of such consideration as of
the date of the exchange of such Notes, used between the Effective Date and
the Valuation Date to redeem or otherwise extinguish any Notes not
exchanged on or prior to the Effective Date.
Exh. 1 - 28
ANNEX C
MARKET METHOD FACTORS
- --------------------------------------------------------------------------------------------------
Total Equity Observable Market Gross-Up
Value Noteholders Value Old Equity Value Value1 Multiple2
- --------------------------------------------------------------------------------------------------
300 270 30 300.00 1.0000
- --------------------------------------------------------------------------------------------------
320 284 36 315.56 1.0141
- --------------------------------------------------------------------------------------------------
340 298 42 331.11 1.0268
- --------------------------------------------------------------------------------------------------
360 312 48 346.67 1.0385
- --------------------------------------------------------------------------------------------------
380 326 54 362.22 1.0491
- --------------------------------------------------------------------------------------------------
400 340 60 377.78 1.0588
- --------------------------------------------------------------------------------------------------
420 352 68 391.11 1.0739
- --------------------------------------------------------------------------------------------------
440 364 76 404.44 1.0879
- --------------------------------------------------------------------------------------------------
460 376 84 417.78 1.1011
- --------------------------------------------------------------------------------------------------
480 388 92 431.11 1.1134
- --------------------------------------------------------------------------------------------------
500 400 100 444.44 1.1250
- --------------------------------------------------------------------------------------------------
520 407 113 452.22 1.1499
- --------------------------------------------------------------------------------------------------
540 414 126 460.00 1.1739
- --------------------------------------------------------------------------------------------------
560 421 139 467.78 1.1971
- --------------------------------------------------------------------------------------------------
580 428 152 475.56 1.2196
- --------------------------------------------------------------------------------------------------
600 435 165 483.33 1.2414
- --------------------------------------------------------------------------------------------------
620 439 181 487.78 1.2711
- --------------------------------------------------------------------------------------------------
640 443 197 492.22 1.3002
- --------------------------------------------------------------------------------------------------
660 447 213 496.67 1.3289
- --------------------------------------------------------------------------------------------------
680 451 229 501.11 1.3570
- --------------------------------------------------------------------------------------------------
700 455 245 505.56 1.3846
- --------------------------------------------------------------------------------------------------
______________________
1 To the extent that an Observable Market Value lies between two specified
values, the Gross-Up Multiple shall be determined by linearly interpolating
between the two Gross-Up Multiples corresponding to the two Observable
Market Values between which the actual Observable Market Value lies.
2 Shown as to four decimal places.
Exh. 1 - 29
ANNEX D
VALUATION INSTRUCTIONS TO THE THIRD PARTY INVESTMENT BANKS
1. Timetable
The three Third Party Investment Banks will each report their findings in
writing (the "Written Valuation Opinions") to the Arbitrator as defined herein
within a period of four weeks from the commencement of their appointment. This
period of four weeks shall only be extended by the Arbitrator acting in
consultation with the Company's board of directors (the "Board").
2. Market Manipulation
Market manipulation includes trading activity within the markets for the
Company's ordinary shares ("Manipulation") which has resulted either in an
increase or decrease (a "Deviation") of the Company's equity value as calculated
by the Market Method. For the avoidance of doubt, references in these
Instructions either to "Manipulation" or "Market Manipulation" shall not mean
that any of the parties referred to herein have been, or are suspected of being,
involved in any criminal or other illegal conduct or activities whatsoever.
3. Determining a Point Valuation
In accordance with the terms of this Warrant Certificate, the Third Party
Investment Banks shall each provide a valuation (the "Point Valuation") of the
Company's ordinary equity which removes the effects of any Deviation from the
Company's equity value as calculated under the Market Method.
4. Sources of Information
(a) For the avoidance of doubt, the three Third Party Investment Banks shall be
entitled to use in their own discretion the following information when preparing
their Written Valuation Opinions:
(i) Any information relating to the Company which, immediately prior to
the final day of the Valuation Period, is publicly available and
which is not subject to any restrictions arising from
confidentiality or other non-disclosure arrangements.
(ii) Any information which the Company ordinarily provides or would
provide to equity analysts in the ordinary course.
(iii) Any other public information relating to the market, the industry
and comparable companies which the three Third Party Investment
Banks deem to be relevant.
(b) When preparing their Written Valuation Opinions as described, the three
Third Party Investment Banks are specifically prohibited from using any
information relating to the Company and/or its business interests which does not
fall within the categories described in 4(a)(i) and 4(a)(ii) above.
5. Valuation to be Prepared by Three Third Party Investment Banks
The three Third Party Investment Banks will each provide to the Arbitrator
separate Written Valuation Opinions as described. A copy of each Written
Valuation Opinion should be provided to the Company's Board by the Arbitrator,
once completed. For each Third Party Investment Bank, the contents of their
Written Valuation Opinions shall be limited to the following:
Exh. 1 - 30
(i) A single Point Valuation of the Company's equity value. Each of the
three Third Party Investment Banks are expressly prohibited from
providing their equity valuations within their Written Valuation
Opinions in the form of a range. For the avoidance of doubt,
valuations shall not be "per share" valuations;
(ii) The valuation methodologies used in determining the Point Valuation;
(iii) A summary of the information used when determining the Point
Valuation; and
(iv) Confirmation that the Point Valuation excludes those factors or
matters specified in clause 8 ("Excluded Items") below.
6. Equity Value
For the avoidance of doubt and for the purposes of preparing their Written
Valuation Opinions only, the three Third Party Investment Banks shall treat the
Company's equity value as the value attributable to the entire issued ordinary
share capital of the Company on the Valuation Date independent of its structure
of ordinary shares, warrants and other equity securities.
7. Valuation Techniques
The three Third Party Investment Banks shall be entitled to use any generally
accepted valuation techniques or methodologies for the purposes of arriving at
their respective Point Valuations as would ordinarily be used by reasonably
competent third party investment banks when conducting similar written valuation
opinions on arm's length terms for other business entities in the open market.
8. Excluded Items
The three Third Party Investment Banks shall have regard to the following
matters when carrying out their Written Valuation Opinions:
(i) No Control Premium: The Company's equity valuation calculated by the
three Third Party Investment Banks shall exclude any premium that
could be added to reflect a controlling equity interest in the
Company.
(ii) No Strategic Premium: The Company's equity valuation calculated by
the three Third Party Investment Banks shall not reflect any
possible "strategic" premium that a potential acquirer of the
Company's business might pay to reflect possible financial or
operational synergies, improved market position, or any other
business factor.
9. Questions and/or Requests for Information
(a) The Third Party Investment Banks shall have the opportunity to meet with
the Company's management team and/or members of the Board to discuss the
business and ask any questions which they may have, save that no material price
sensitive information which has not previously been made public may be disclosed
by the Company to the three Third Party Investment Banks during these meetings
with the Company's management team and/or members of the Board.
Exh. 1 - 31
(b) Should any of the three Third Party Investment Banks have any questions, or
require any additional information, when preparing their Written Valuation
Opinions for the Arbitrator within the timetable identified in clause 1 above,
then the three Third Party Investment Banks should submit their questions and/or
requests for information to the Arbitrator in writing.
(c) The Arbitrator shall ensure that copies of any written questions and/or
requests for information, and their written responses, are circulated to each of
the three Third Party Investment Banks involved in conducting their Written
Valuation Opinions, with a copy to the Company's Board, promptly, and in any
event, prior to any Written Valuation Opinions being concluded.
Exh. 1 - 32
ANNEX E
TRANSFER FORM
(To be executed only upon transfer of Warrants represented by Warrant
Certificate to Clearstream clearing system)
To: Deutsche Bank Trust Company Americas
as Transfer Agent
Deutsche Bank Trust Company Americas
60 Wall Street
New York, NY 10005
USA
Attn: Corporate Trust and Agency Services
Mail Stop: MSNY60-2515
The undersigned Holder of this Warrant Certificate irrevocably
requests that the Transfer Agent cause the Warrants represented by this Warrant
Certificate to be transferred to account # __________ in the Clearstream
clearing system pursuant to Section 5.3 of this Warrant Certificate
Dated: ____________ ___, 200_
_____________________________________________
(Name of Registered Owner)
_____________________________________________
(Signature of Registered Owner)
_____________________________________________
(Street Address)
_____________________________________________
(Street Address)
_____________________________________________
(City) (County/Province/State)
_____________________________________________
(Postal Code) (Country)
_____________________________________________
Signature Guaranteed By:
_____________________________________________
[Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Transfer Agent, which
requirements include membership or
participation in the Security Warrant Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Transfer Agent in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.]
Exh. 1 - 33
ANNEX F
FORM OF ASSIGNMENT
In consideration of monies or other valuable consideration received from
the Assignee(s) named below, the undersigned Holder of this Warrant Certificate
hereby sells, assigns, and transfers unto the Assignee(s) named below (including
the undersigned with respect to any Warrant Certificate constituting a part of
this Warrant Certificate not being assigned hereby) all of the right of the
undersigned under this Warrant Certificate, with respect to the portion of the
Warrant Certificate set forth below:
Name(s) of Assignee(s): ____________________________________________
Address: ___________________________________________________________
____________________________________________________________________
Portion of the Warrant Certificate: ________________________________
Please insert social security or other identifying number of assignee(s):
_________________
and does hereby irrevocably constitute and appoint _________________________ the
undersigned's attorney to make such transfer on the books of___________________
maintained for the purposes, with full power of substitution in the premises.
In connection with any transfer of Warrant Certificates, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
[Check One]
[_] (a) this Warrant Certificate is being transferred pursuant to an effective
registration statement under the United States Securities Act of 1933,
as amended.
or
[_] (b) this Warrant Certificate is being transferred in compliance with the
exemption from registration under the United States Securities Act of
1933, as amended, provided by Regulation S thereunder.
or
[_] (c) this Warrant Certificate is being transferred in compliance with the
exemption from registration under the United States Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[_] (d) this Warrant Certificate is being transferred in compliance with the
exemption from registration under the United States Securities Act of
1933, as amended, provided by Rule 144 thereunder, and the Company has
been provided evidence satisfactory to the Company from Holder or
counsel for Holder that the provisions of Rule 144 have been complied
with.
or
Exh. 1 - 34
[_] (e) this Warrant Certificate is being transferred to the Company or a
subsidiary of the Company.
or
[_] (f) this Warrant Certificate are being transferred in compliance with
another exemption from registration under the United States Securities
Act of 1933, as amended, and the Company has received an opinion of
counsel for Holder of this Warrant Certificate, satisfactory to the
Company, state that the transfer is exempt from the registration and
prospectus delivery requirements under the United States Securities
Act of 1933, as amended.
If none of the foregoing boxes is checked, the Transfer Agent shall
not be obligated to register the Warrant Certificates in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 5 of this Warrant
Certificate shall have been satisfied.
Dated: ___________ ___, 200_
_____________________________________________
(Name of Registered Owner)
_____________________________________________
(Signature of Registered Owner)
_____________________________________________
(Street Address)
_____________________________________________
(Street Address)
_____________________________________________
(City) (County/Province/State)
_____________________________________________
(Postal Code) (Country)
_____________________________________________
Signature Guaranteed By:
_____________________________________________
[Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Transfer Agent, which
requirements include membership or
participation in the Security Warrant Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Transfer Agent in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.]
Exh. 1 - 35
[TO BE COMPLETED BY PURCHASER IF (c) ABOVE IS CHECKED.]
The undersigned represents and warrants that it is purchasing the
Warrant Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the United
States Securities Act of 1933, as amended, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received such
information regarding IFCO Systems N.V. as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:___________ __, 200_
By: ___________________________
Name:
Title:
Exh. 1 - 36