Exhibit 4.04
EXECUTION COPY
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WARRANT AGREEMENT
Dated as of
March 12, 1998
between
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
and
UNITED STATES TRUST COMPANY OF NEW YORK
as the Warrant Agent
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Warrants for
Ordinary Shares of
Nakornthai Strip Mill Public Company Limited
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TABLE OF CONTENTS
Page
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ARTICLE 1 Definitions ...................................................... 1
SECTION 1.01. Definitions .............................................. 1
SECTION 1.02. Other Definitions ........................................ 4
SECTION 1.03. Rules of Construction .................................... 4
ARTICLE 2 Warrant Certificates ............................................. 5
SECTION 2.01. Form and Dating .......................................... 5
SECTION 2.02. Legends .................................................. 5
SECTION 2.03. Execution and Countersignature ........................... 7
SECTION 2.04. Global Warrants .......................................... 7
SECTION 2.05. Separation of Warrants and Notes ......................... 8
SECTION 2.06. Transfer and Exchange .................................... 8
SECTION 2.07. Replacement Certificates ................................. 9
SECTION 2.08. Temporary Certificates ................................... 9
SECTION 2.09. Cancelation .............................................. 10
SECTION 2.10. Book-Entry Provisions for the Rule 144A ..................
Global Warrant, the IAI Global Warrant and the ...........
Regulation S Global Warrant .............................. 10
SECTION 2.11. Special Transfer Provisions .............................. 12
ARTICLE 3 Exercise Terms ................................................... 15
SECTION 3.01. Exercise Price ........................................... 14
SECTION 3.02. Exercise Periods ......................................... 14
SECTION 3.03. Expiration ............................................... 14
SECTION 3.04. Manner of Exercise ....................................... 15
SECTION 3.05. Issuance of Warrant Shares ............................... 15
SECTION 3.06. Fractional Warrant Shares ................................ 16
SECTION 3.07. Reservation of Warrant Shares ............................ 16
SECTION 3.08. Compliance with Law ...................................... 17
SECTION 3.09. Foreign Shareholders ..................................... 17
ARTICLE 4 Antidilution Provisions .......................................... 21
SECTION 4.01. Changes in Ordinary Shares ............................... 19
SECTION 4.02. Cash Dividends and Other Distributions ................... 20
SECTION 4.03. Rights Issue ............................................. 21
SECTION 4.04 Issuance of Ordinary Shares or Rights .................... 22
SECTION 4.05. Combination; Liquidation ................................. 22
SECTION 4.06. Other Events ............................................. 23
SECTION 4.07. Superseding Adjustment ................................... 24
SECTION 4.08. Minimum Adjustment ....................................... 24
SECTION 4.09. Notice of Adjustment ..................................... 25
SECTION 4.10. Notice of Certain Transactions ........................... 25
SECTION 4.11. Adjustment to Warrant Certificate ........................ 26
ARTICLE 5 Registration Rights .............................................. 29
SECTION 5.01. Effectiveness of Registration Statement .................. 27
SECTION 5.02. Suspension ............................................... 28
SECTION 5.03. Blue Sky ................................................. 29
SECTION 5.04. Accuracy of Disclosure ................................... 29
SECTION 5.05. Indemnification .......................................... 30
SECTION 5.06. Additional Acts .......................................... 34
SECTION 5.07. Expenses ................................................. 34
ARTICLE 6 Warrant Agent .................................................... 37
SECTION 6.01. Appointment of Warrant Agent ............................. 35
SECTION 6.02. Rights and Duties of Warrant Agent ....................... 35
SECTION 6.03. Individual Rights of Warrant Agent ....................... 36
SECTION 6.04. Warrant Agent's Disclaimer ............................... 36
SECTION 6.05. Compensation and Indemnity ............................... 37
SECTION 6.06. Successor Warrant Agent .................................. 37
ARTICLE 7 Miscellaneous .................................................... 42
SECTION 7.01. SEC Reports and Other Information ........................ 39
SECTION 7.02. Persons Benefitting ...................................... 39
SECTION 7.03. Rights of Holders ........................................ 40
SECTION 7.04. Amendment ................................................ 40
SECTION 7.05. Notices .................................................. 41
SECTION 7.06. Governing Law ............................................ 41
SECTION 7.07. Successors ............................................... 41
SECTION 7.08. Multiple Originals ....................................... 42
SECTION 7.09. Table of Contents ........................................ 42
SECTION 7.10. Severability ............................................. 42
EXHIBIT A Form of Face of Warrant Certificate
EXHIBIT B Form of Transfer Certificate re: Transfers of Interests in
the IAI Global Warrant
EXHIBIT C Form of Transfer Certificate re: Transfers to Non-U.S.
Persons at Any Time
WARRANT AGREEMENT dated as of March 12, 1998 (this
"Agreement"), between NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED,
a company incorporated under the laws of Thailand (the "Company"),
and UNITED STATES TRUST COMPANY OF NEW YORK, as Warrant Agent (the
"Warrant Agent").
The Company desires to issue the warrants (the "Warrants") described
herein. The Warrants will initially entitle the holders thereof (the "Holders")
to purchase in the aggregate 128,834,356 ordinary shares, par value 10 Baht per
share, of the Company (the "Ordinary Shares") in connection with an offering
(the "Units Offering") by NSM Steel (Delaware), Inc. and NSM Steel Company, Ltd.
(the "Note Issuers") and the Company (collectively, the "Issuers") of 203,500
units (the "Units"). Each Unit will consist of (i) one 12 1/4% Senior
Subordinated Mortgage Note Due 2008 of the Note Issuers in a principal amount at
maturity of U.S. $1,000(collectively, the "Notes") and (ii) 633.09266 Warrants.
Each Warrant will entitle the Holder to purchase one Ordinary Share, subject to
adjustment as provided herein.
The Warrants will not trade separately from the Notes until June 10,
1998, or such earlier date as Natwest Capital Markets Limited shall determine
(the "Separation Date").
The Company further desires the Warrant Agent to act on behalf of
the Company in connection with the issuance of the Warrants as provided herein
and the Warrant Agent is willing to so act.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of Warrants:
ARTICLE 1
Definitions
SECTION 1.01. Definitions.
"Affiliate" of any Person means (i) any other
Person which, directly or indirectly, is in control of, is controlled by or is
under common control with such Person, or (ii) any other Person who is a
director or executive officer (A) of such Person, (B) of any subsidiary of such
Person or (C) of any Person described in clause (i) above. For purposes hereof,
(a) "control" of a Person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise and (b) beneficial ownership of 5% or more of the voting
common equity (on a fully diluted basis) or warrants to purchase such equity
(whether or not currently exercisable) of a Person shall be deemed to be in
control of such Person; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Baht" means Thai Baht.
"Board" means the Board of Directors of the Company or any committee
thereof duly authorized to act on behalf of such Board of Directors.
"Business Day" means each day that is not a Saturday, a Sunday or a
day on which banking institutions are not required to be open in the State of
New York and Thailand.
"Combination" means an event in which the Company consolidates with,
merges with or into, or sells all or substantially all of its assets to another
Person.
"Current Market Value" per Ordinary Share at any Trading Date means
the average trading price for the Ordinary Shares on that date, or if no
transaction takes place on such day, the average of the closing bid and offered
prices on such day, in either case as reported by the Stock Exchange of Thailand
on the foreign board.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercise Date" means, for a given Warrant, the day on which such
Warrant is exercised pursuant to Section 3.04.
"Extraordinary Cash Dividend" means that portion, if any, of the
aggregate amount of all dividends paid by the Company on its Ordinary Shares in
any fiscal year that
exceeds Baht 450 million.
"Indenture" means the Indenture dated as of March 1, 1998, among the
Issuers and the Trustee, with respect to the Notes, as it may be amended or
supplemented from time to time. "Issue Date" means the date on which Warrants
are initially issued.
"Non-U.S. Person" means a Person outside the United States.
"Note Depositary Agreement" means the Note Depositary Agreement
dated March 1, 1998, among the Issuers and The Chase Manhattan Bank, as
Book-Entry Depositary.
"Officer" means the Chairman of the Board, the President or any Vice
President of the Company.
"Ordinary Shares" means ordinary shares of the Company with a
nominal value of 10 baht or shares of any class or classes resulting from any
subdivision, consolidation or reclassification of those shares, which as between
themselves have no preference in respect of dividends or of amounts payable in
the event of liquidation or dissolution of the Company.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"SEC" means the Securities and Exchange Commission, or any successor
agency or body performing substantially similar functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Trading Date" means a date on which the Ordinary Shares trade
publicly on the Stock Exchange of Thailand in Bangkok.
"Trustee" means The Chase Manhattan Bank, or any successor trustee
under the Indenture.
"Warrant Certificates" mean the registered certificates (including
without limitation, the global certificates) issued by the Company under this
Agreement representing the Warrants.
"Warrant Shares" mean the Ordinary Shares (and other securities)
issuable upon the exercise of the Warrants.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"ADR".................................. 3.09(g)
"Agent Members"........................ 2.10
"Agreement"............................ Recitals
"Cash Amount".......................... 3.09(c)
"Cashless Exercise".................... 3.04
"Certificate Register"................. 2.04
"Common Shelf Registration
Statement".......................... 5.01
"Company".............................. Recitals
"Designated Purchaser.................. 3.09(a)
"Exercise Price"....................... 3.01
"Expiration Date"...................... 3.02(b)
"Foreign Ownership Percentage"......... 3.09(b)
"Global Warrants"...................... 2.04
"Holders".............................. Recitals
"IAI".................................. 2.11(b)
"IAI Global Warrant"................... 2.04
"Indemnified Parties".................. 5.05
"Market Price"......................... 3.09(b)
"Note Issuers"......................... Recitals
"Notes"................................ Recitals
"QIB".................................. 2.04
"Registrar"............................ 3.07
"Registration Statements".............. 5.01
"Regulation S Global Warrant........... 2.04
"Rule 144A Global Warrant.............. 2.04
"Separability Legend".................. 2.02(b)
"Separation Date"...................... Recitals
"SET".................................. 3.09(c)
"Successor Company".................... 4.05(a)
"Transfer Agent"....................... 3.05
"Units"................................ Recitals
"Units Offering"....................... Recitals
"Warrant Agent"........................ Recitals
"Warrants"............................. Recitals
"Warrant Shelf Registration
Statement".......................... 5.01
SECTION 1.03. Rules of Construction. Unless the text otherwise
requires:
(i) a defined term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the plural
include the singular.
ARTICLE 2
Warrant Certificates
SECTION 2.01. Form and Dating. Each Warrant Certificate shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Agreement. The Warrant Certificates may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company) and
shall bear the legends required by Section 2.02. Each Warrant Certificate shall
be dated the date of its countersignature. The terms of the Warrant Certificate
set forth in Exhibit A are part of the terms of this Agreement.
SECTION 2.02. Legends. (a) Each Warrant Certificate shall bear the
following legend:
THE ORDINARY SHARES, PAR VALUE 10 BAHT PER SHARE, OF THE COMPANY FOR
WHICH THIS WARRANT IS EXERCISABLE MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS. ACCORDINGLY, NO HOLDER SHALL BE ENTITLED TO EXERCISE
SUCH HOLDER'S WARRANTS AT ANY TIME UNLESS, AT THE TIME OF EXERCISE,
(i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT RELATING TO
THE ORDINARY SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAS
BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE SECURITIES AND
EXCHANGE COMMISSION (THE "SEC"), AND NO STOP ORDER SUSPENDING THE
EFFECTIVENESS OF SUCH REGISTRATION STATEMENT HAS BEEN ISSUED BY THE
SEC, OR (ii) THE ISSUANCE OF SUCH SHARES IS PERMITTED PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) Each Warrant Certificate issued prior to the Separation Date
shall bear the following legend (the "Separability Legend"):
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED
AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE 12
1/4% SENIOR SUBORDINATED MORTGAGE NOTE DUE 2008 OF THE NOTE ISSUERS
(COLLECTIVELY, THE "NOTES") AND 633.09266 WARRANTS. PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON JUNE 10, 1998 OR SUCH EARLIER DATE AS
NATWEST CAPITAL MARKETS LIMITED MAY, IN ITS DISCRETION, DEEM
APPROPRIATE, THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR
EXCHANGED ONLY TOGETHER WITH, THE NOTES.
(c) Each Warrant Certificate, unless the Company otherwise instructs
the Warrant Agent in writing, shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN
THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AS IN
EFFECT WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE WARRANT AGENT) AND, IF
REQUESTED BY THE WARRANT AGENT, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT AN INITIAL INVESTOR THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR, PURCHASING AS DESCRIBED IN CLAUSE (1)(B) ABOVE SHALL
NOT BE PERMITTED TO TRANSFER THIS SECURITY TO AN INSTITUTIONAL ACCREDITED
INVESTOR."
SECTION 2.03. Execution and Countersignature. One or more Officers
shall sign the Warrant Certificates for the Company by manual or facsimile
signature. If an Officer whose signature is on a Warrant Certificate no longer
holds that office at the time the Warrant Agent countersigns the Warrant
Certificate, the Warrant Certificate shall
nevertheless be valid. A Warrant Certificate shall not be valid until an
authorized signatory of the Warrant Agent manually countersigns the Warrant
Certificate. Such authorized signature shall be conclusive evidence that the
Warrant Certificate has been countersigned under this Agreement.
The Warrant Agent shall initially countersign and deliver Warrant
Certificates entitling the Holders thereof to purchase in the aggregate not more
than 128,834,356 Warrant Shares upon a written order of the Company signed by
one or more Officers of the Company.
The Warrant Agent may appoint an agent reasonably acceptable to the
Company to countersign the Warrant Certificates. Unless limited by the terms of
such appointment, such agent may countersign Warrant Certificates whenever the
Warrant Agent may do so. Each reference in this Agreement to countersignature by
the Warrant Agent includes countersignature by such agent. Such agent will have
the same rights as the Warrant Agent for service of notices and demands.
SECTION 2.04. Global Warrants. Warrants offered and sold to a
"qualified institutional buyer" ("QIB") in reliance on Rule 144A under the
Securities Act shall be issued initially in the form of a single, permanent
global Warrant Certificate in definitive, fully registered form, substantially
in the form set forth in Exhibit A (the "Rule 144A Global Warrant"), deposited
with the Warrant Agent, as custodian for the Depository, duly executed by the
Company and countersigned by the Warrant Agent. The aggregate number of Warrants
represented by the Rule 144A Global Warrant may from time to time be increased
or decreased by adjustments made on the records of the Warrant Agent, as
custodian for the Depository, or its nominee, as hereinafter provided.
Warrants offered and sold to institutional accredited investors
shall be issued initially in the form of a single, permanent global Warrant
Certificate in definitive, fully registered form, substantially in the form set
forth in Exhibit A (the "IAI Global Warrant"), deposited with the Warrant Agent,
as custodian for the Depository, duly executed by the Company and countersigned
by the Warrant Agent. The aggregate number of Warrants represented by the IAI
Global Warrant may from time to time be increased
or decreased by adjustments made on the records of the Warrant Agent, as
custodian for the Depository, or its nominee, as hereinafter provided.
Warrants offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single, permanent global
Warrant Certificate in definitive, fully registered form, substantially in the
form set forth in Exhibit A (the "Regulation S Global Warrant"), deposited with
the Warrant Agent. The aggregate number of Warrants represented by the
Regulation S Global Warrant may from time to time be increased or decreased by
adjustments made on the records of the Warrant Agent, as custodian for the
Depository, as hereinafter provided. The Rule 144A Global Warrant and the
Regulation S Global Warrant are sometimes collectively referred to herein as the
"Global Warrants".
SECTION 2.05. Separation of Warrants and Notes. (a) Prior to the
Separation Date, no Warrant may be sold, assigned or otherwise transferred to
any Person unless, simultaneously with such transfer, the Warrant Agent receives
written confirmation from the Trustee for the Notes that the Holder thereof has
requested a transfer of the related Notes to the same transferee.
(b) On or after the Separation Date, the Holder of a Warrant
Certificate containing a Separability Legend may surrender such Warrant
Certificate accompanied by a written application to the Warrant Agent, duly
executed by the Holder thereof, for a new Warrant Certificate or certificates
not containing the Separability Legend.
SECTION 2.06. Transfer and Exchange. The Warrant Certificates shall
be issued in registered form only and shall be transferable only upon the
surrender of such Warrant Certificate for registration of transfer. When a
Warrant Certificate is presented to the Warrant Agent with a request to register
a transfer, the Warrant Agent shall, subject to Section 2.11, register the
transfer as requested if the reasonable requirements of the Warrant Agent and of
Section 8-401(1) of the Uniform Commercial Code as in effect in the State of New
York are met; provided, however, that prior to the Separation Date the Warrant
Agent shall not register a transfer of a Warrant Certificate and such transfer
will be void and of no effect unless the Notes that are a part of the same Unit
as the Warrants represented by
the Warrant Certificate to be transferred are simultaneously transferred to the
same transferee. To permit the registration of transfers and exchanges, the
Company shall execute and the Warrant Agent shall countersign Warrant
Certificates at the Warrant Agent's request. All Warrant Certificates issued
upon any registration of transfer or exchange of Warrant Certificates shall be
valid obligations of the Company, entitled to the same benefits under this
Agreement as the Warrant Certificates surrendered upon such registration of
transfer or exchange. No service charge will be made to a Holder for any
registration of transfer or exchange upon surrender of any Warrant Certificate
at the office of the Warrant Agent maintained for that purpose. However, the
Company may require payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Warrant Certificates but not for any
exchange or original issuance (not involving a transfer) pursuant to Section
2.08, 3.04 or 3.05.
SECTION 2.07. Replacement Certificates. If a mutilated Warrant
Certificate is surrendered to the Warrant Agent or if the Holder of a Warrant
Certificate claims that the Warrant Certificate has been lost, destroyed or
wrongfully taken, the Company shall issue and the Warrant Agent shall
countersign a replacement Warrant Certificate if the reasonable requirements of
the Warrant Agent and of Section 8-405 of the Uniform Commercial Code as in
effect in the State of New York are met. If required by the Warrant Agent or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Company and the Warrant Agent to protect the Company and the Warrant
Agent from any loss which either of them may suffer if a Warrant Certificate is
replaced. The Company and the Warrant Agent may charge the Holder for their
expenses in replacing a Warrant Certificate. Every replacement Warrant
Certificate is an additional obligation of the Company.
SECTION 2.08. Temporary Certificates. Until definitive Warrant
Certificates are ready for delivery, the Company may prepare and the Warrant
Agent shall countersign temporary Warrant Certificates. Temporary Warrant
Certificates shall be substantially in the form of definitive Warrant
Certificates but may have variations that the Company considers appropriate for
temporary Warrant Certificates. Without unreasonable delay, the Company shall
prepare and the Warrant Agent shall countersign definitive
Warrant Certificates and deliver them in exchange for temporary Warrant
Certificates.
SECTION 2.09. Cancelation. (a) In the event the Company shall
purchase or otherwise acquire Warrant Certificates, the same shall thereupon be
delivered to the Warrant Agent for cancelation.
(b) The Warrant Agent and no one else shall cancel and destroy all
Warrant Certificates surrendered for transfer, exchange, replacement, exercise
or cancelation and deliver a certificate of such destruction to the Company
unless the Company directs the Warrant Agent to deliver canceled Warrant
Certificates to the Company. The Company may not issue new Warrant Certificates
to replace Warrant Certificates to the extent they represent Warrants which have
been exercised or Warrants which the Company has purchased or otherwise
acquired.
SECTION 2.10. Book-Entry Provisions for the Rule 144A Global
Warrant, the IAI Global Warrant and the Regulation S Global Warrant. (a) The
Rule 144A Global Warrant, the IAI Global Warrant and the Regulation S Global
Warrant initially shall (i) be registered in the name of the Depository or the
nominee of the Depository, (ii) be delivered by the Warrant Agent to the
Depository or pursuant to the Depository's instructions or held by the Warrant
Agent as custodian for the Depository and (iii) bear legends as set forth in
Section 2.02 hereof. Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Agreement with respect to the Rule
144A Global Warrant, the IAI Global Warrant or the Regulation S Global Warrant,
as the case may be, held on their behalf by the Depository or by the Warrant
Agent as its custodian, or under the Rule 144A Global Warrant, the IAI Global
Warrant or the Regulation S Global Warrant, as the case may be, and the
Depository may be treated by the Company, the Warrant Agent and any agent of the
Company or the Warrant Agent as the absolute owner of such Rule 144A Global
Warrant, IAI Global Warrant or Regulation S Global Warrant, as the case may be,
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Warrant Agent or any agent of the Company or the
Warrant Agent from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices of the Depository
governing
the exercise of the rights of a holder of a beneficial interest in any Rule 144A
Global Warrant, IAI Global Warrant or Regulation S Global Warrant.
(b) Transfers of the Rule 144A Global Warrant, the IAI Global
Warrant and Regulation S Global Warrant shall be limited to transfers of such
Rule 144A Global Warrant, IAI Global Warrant or Regulation S Global Warrant in
whole, but not in part, to the Depository. Interests of beneficial owners in the
Rule 144A Global Warrant, the IAI Global Warrant and the Regulation S Global
Warrant may be transferred in accordance with the rules and procedures of the
Depository and the provisions of Section 2.11 hereof. Certificated Warrants
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Rule 144A Global Warrant, the IAI Global Warrant or the
Regulation S Global Warrant, if the Depository notifies the Company that it is
unwilling or unable to continue as Depositary for the Rule 144A Global Warrant,
the IAI Global Warrant or the Regulation S Global Warrant, as the case may be,
or the Depository ceases to be a "clearing agency" registered under the Exchange
Act and a successor depositary is not appointed by the Company within 90 days.
(c) Any beneficial interest in one of the Global Warrants that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Warrant will, upon transfer, cease to be an interest in such Global
Warrant and become an interest in the other Global Warrant and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Warrant for
as long as it remains such in interest.
(d) In connection with the transfer of the entire Rule 144A Global
Warrant, IAI Global Warrant or Regulation S Global Warrant to beneficial owners
pursuant to paragraph (b) of this Section, the Rule 144A Global Warrant, the IAI
Global Warrant or the Regulation S Global Warrant, as the case may be, shall be
deemed to be surrendered to the Warrant Agent for cancelation, and the Company
shall execute, and the Warrant Agent shall countersign and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Rule 144A Global Warrant, the IAI Global Warrant or the
Regulation S Global Warrant, as the case may be, Certificated Warrants of
authorized denominations
representing, in the aggregate, the number of Warrants theretofore represented
by the Rule 144A Global Warrant, the IAI Global Warrant or the Regulation S
Global Warrant, as the case may be.
(e) The registered holder of the Rule 144A Global Warrant, the IAI
Global Warrant and the Regulation S Global Warrant may grant proxies and
otherwise authorize any Person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Agreement or the Warrants.
SECTION 2.11. Special Transfer Provisions. Unless and until a
registration statement is declared effective by the SEC that includes all
outstanding Warrants and Warrant Shares (as certified to the Warrant Agent by
the Company) or an opinion of counsel reasonably acceptable to the Warrant Agent
is delivered to the Warrant Agent to the effect that the transfer restriction
provisions set forth in this Section 2.11 are no longer applicable to the
Warrants, the following provisions shall apply:
(a) Transfers to QIBs. With respect to the registration of any
proposed transfer of Warrants to a QIB (excluding Non-U.S. Persons), the
transfer of an interest in the Rule 144A Global Warrant may be effected only
through the book-entry system maintained by the Depository.
(b) Transfers of Interests in the IAI Global Warrant. If the holder
of a beneficial interest in a Global Warrant wishes to transfer such interest to
an institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act (an "IAI"), such transfer may be
effected, subject to certain procedures, only upon receipt by the Depository of
a certificate in substantially the form set forth in Exhibit B given by the
transferor; provided, however, that an IAI that purchased Warrants from the
Initial Purchasers (as defined in the Indenture) in the Units Offering cannot
resell such initial interest in the Warrants to another IAI.
(c) Transfers of Interest in the Regulation S Global Warrant or
Certificated Warrants to U.S. Persons. With respect to any transfer of interests
in the Regulation S Global Warrant or Certificated Warrants to U.S. Persons:
(i) on or prior to the date that is 40 calendar days after the Issue
Date, the Warrant Agent shall refuse to register such transfer; and
(ii) after such date, the Warrant Agent shall register such transfer
without requiring additional certification and shall deliver Warrant
Certificates that do not bear the legend in Section 2.02(c).
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of Warrants to a Non-U.S.
Person:
(i) the Warrant Agent shall register any proposed transfer of
Warrants to a Non-U.S. Person only upon receipt of a certificate
substantially in the form of Exhibit C from the proposed transferor.
(ii) (x) If the proposed transferor is an Agent Member holding a
beneficial interest in the Rule 144A Global Warrant or the IAI Global
Warrant, upon receipt by the Warrant Agent of (A) the documents required
by paragraph (i) and (B) instructions in accordance with the Depository's
and the Warrant Agent's procedures, the Warrant Agent shall reflect on its
books and records the date and a decrease in the number of Warrants
represented by the Rule 144A Global Warrant or the IAI Global Warrant, as
the case may be, to be transferred, and (y) if the proposed transferee is
an Agent Member, upon receipt by the Warrant Agent of instructions given
in accordance with the Depository's and the Warrant Agent's procedures,
the Warrant Agent shall reflect on its books and records the date and an
increase in the number of Warrants represented by the Regulation S Global
Warrant in an amount equal to the number of Warrants represented by the
Rule 144A Global Warrant of the IAI Global Warrant, as the case may be, to
be transferred, and the Warrant Agent shall decrease the number of
Warrants represented by the Rule 144A Global Warrant or the IAI Global
Warrant, as the case may be.
(e) General. By its acceptance of any Warrants represented by a
Warrant Certificate bearing the legend in Section 2.02, each Holder of such
Warrants acknowledges the restrictions on transfer of such Warrants set forth in
this
Agreement and in the legend and agrees that it will transfer such Warrants only
as provided in this Agreement. The Warrant Agent shall not register a transfer
of any Warrants unless such transfer complies with the requirements of this
Section 2.11. In connection with any transfer of Warrants, each Holder agrees by
its acceptance of Warrants to furnish the Warrant 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 Securities Act; provided, however, that the Warrant 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. The Warrant Agent's only obligation to enforce the transfer
restrictions of this Agreement shall be to require the certifications and
opinions specifically required by this Section 2.11 as a condition to a
transfer.
(f) Records. The Warrant Agent shall retain in accordance with its
customary procedures copies of all letters, notices and other written
communications received pursuant to Section 2.10 hereof or this Section 2.11.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Warrant Agent.
ARTICLE 3
Exercise Terms
SECTION 3.01. Exercise Price. Each Warrant shall initially entitle
the Holder thereof, subject to adjustment pursuant to the terms of this
Agreement, to purchase one Ordinary Shares for a per share exercise price (the
"Exercise Price") of 10 Baht.
SECTION 3.02. Exercise Periods. (a) Subject to the terms and
conditions set forth herein, the Warrants shall be exercisable at any time or
from time to time on or after March 12, 1999; provided, however, that Holders of
Warrants will be able to exercise their Warrants only if (i) the Common Shelf
Registration Statement relating to the Warrant Shares is effective, or (ii) the
exercise of such
Warrants is exempt from the registration requirements of the Securities Act, and
the Warrant Shares are qualified for sale or exempt from qualification under the
applicable securities laws of the states or other jurisdictions in which such
holders reside.
(b) No Warrant shall be exercisable after February 1, 2008 (the
"Expiration Date").
SECTION 3.03. Expiration. Each Warrant shall, subject to the rights
of Holders to receive cash payments pursuant to Section 3.09, terminate and
become void as of the earlier of (i) the close of business on the Expiration
Date or (ii) the date such Warrant is exercised. The Company shall give notice
not less than 90 and not more than 120 days prior to the Expiration Date to the
Holders of all then outstanding Warrants to the effect that the Warrants will
terminate and become void as of the close of business on the Expiration Date;
provided, however, that if the Company fails to give notice as provided in this
Section 3.03, the Warrants will nevertheless expire and become void on the
Expiration Date.
SECTION 3.04. Manner of Exercise. Warrants may be exercised upon (i)
surrender to the Warrant Agent at the office of the Warrant Agent of the related
Warrant Certificate, together with the form of election to purchase Ordinary
Shares on the reverse thereof duly filled in and signed by the Holder thereof,
and (ii) payment to the Company of the Exercise Price for each Warrant Share
issuable upon the exercise of such Warrants then exercised. Such payment shall
be made in cash or by certified or official bank check payable to the order of
the Company or by wire transfer of funds to an account designated by the Company
for such purpose. Subject to Section 3.02, the rights represented by the
Warrants shall be exercisable at the election of the Holders thereof either in
full at any time or from time to time in part and in the event that a Warrant
Certificate is surrendered for exercise of less than all the Warrants
represented by such Warrant Certificate at any time prior to the Expiration
Date, a new Warrant Certificate representing the remaining Warrants shall be
issued. The Warrant Agent shall countersign and deliver the required new Warrant
Certificates, and the Company, at the Warrant Agent's request, shall supply the
Warrant Agent with Warrant Certificates duly signed on behalf of the Company for
such purpose.
SECTION 3.05. Issuance of Warrant Shares. Subject to Section 2.07,
upon the surrender of Warrant Certificates and payment of the per share Exercise
Price, as set forth in Section 3.04, the Company shall issue and cause the
Warrant Agent or, if appointed, a transfer agent for the Ordinary Shares
("Transfer Agent") to countersign and deliver to or upon the written order of
the Holder and in such name or names as the Holder may designate a certificate
or certificates for the number of full Warrant Shares so purchased upon the
exercise of such Warrants or other securities or property to which it is
entitled, registered or otherwise, to the Person or Persons entitled to receive
the same, together with cash as provided in Section 3.06 in respect of any
fractional Warrant Shares otherwise issuable upon such exercise. Such
certificate or certificates shall be deemed to have been issued and any Person
so designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the surrender of such Warrant
Certificates and payment of the per share Exercise Price, as aforesaid;
provided, however, that if, at such date, the transfer books for the Warrant
Shares shall be closed, the certificates for the Warrant Shares in respect of
which such Warrants are then exercised shall be issuable as of the date on which
such books shall next be opened and until such date the Company shall be under
no duty to deliver any certificates for such Warrant Shares; provided further,
however, that such transfer books, unless otherwise required by law, shall not
be closed at any one time for a period longer than 20 calendar days.
SECTION 3.06. Fractional Warrant Shares. The Company shall not be
required to issue fractional Warrant Shares on the exercise of Warrants (or
specified portions thereof). If more than one Warrant shall be exercised in full
at the same time by the same Holder, the number of full Warrant Shares which
shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrant Shares purchasable pursuant thereto. If any fraction
of a Warrant Share would, except for the provisions of this Section 3.06, be
issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the Current Market Value per
Warrant Share, as determined on the day immediately preceding the date the
Warrant is exercised, multiplied by such fraction, computed to the nearest whole
cent.
SECTION 3.07. Reservation of Warrant Shares. The Company shall at
all times keep reserved out of its authorized shares a number of Ordinary Shares
sufficient to provide for the exercise of all outstanding Warrants. The Transfer
Agent shall at all times until the Expiration Date reserve such number of
authorized shares as shall be required for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent. All Warrant Shares which
may be issued upon exercise of Warrants shall, upon issue, be fully paid,
nonassessable, free of preemptive rights and free from all taxes, liens, charges
and security interests with respect to the issue thereof. The Company will
supply such Transfer Agent with duly executed share certificates for such
purpose and will itself provide or otherwise make available any cash which may
be payable as provided in Section 3.06. The Company will furnish to such
Transfer Agent a copy of all notices of adjustments (and certificates related
thereto) transmitted to each Holder.
Before taking any action which would cause an adjustment pursuant to
Article 4 to reduce the Exercise Price below the then par value (if any) of the
Ordinary Shares, the Company shall take any and all corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Ordinary Shares at the
Exercise Price as so adjusted.
The Company covenants that all Ordinary Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free
of preemptive rights, free from all taxes and free from all liens, charges and
security interests, created by or through the Company, with respect to the issue
thereof.
SECTION 3.08. Compliance with Law. Notwithstanding anything in this
Agreement to the contrary, in no event shall a Holder be entitled to exercise a
Warrant unless (i) the Company notifies the Warrant Agent in writing that a
registration statement filed under the Securities Act in respect of the issuance
of the Warrant Shares is then effective or (ii) in the opinion of counsel to the
Company addressed to the Warrant Agent, the exercise of such Warrants is exempt
from the registration requirements of the Securities Act and such securities are
qualified for sale or exempt from qualification under the applicable securities
laws of the States or other jurisdictions in which such
Holder resides.
SECTION 3.09. Foreign Shareholders. (a) A Holder of Warrants that
requests that the Warrant Shares be issued in the name of a natural person who
is not a citizen of Thailand or is a company the majority of whose share capital
is owned by Persons who are not citizens of Thailand or is any other legal or
natural person not entitled under prevailing Thai laws and regulations to
acquire Ordinary Shares on the same basis as natural persons who are citizens of
Thailand (together, "non-Thai persons") may, but need not, also designate a
Person who is not a non-Thai person (the "Designated Purchaser") to whom some or
all of the Holder's entitlement to Warrant Shares can be transferred (for such
consideration as may be agreed between the transferor and the Designated
Purchaser) and to whom the relevant Warrant Shares may be issued in the
circumstances set out below.
(b) The Company shall issue Warrant Shares issuable on exercise of a
Warrant in the name of the Designated Purchaser except to the extent that as a
result of such issuance more than 49 percent of the outstanding Ordinary Shares
(or such other percentage of outstanding Ordinary Shares as the Company is from
time to time permitted pursuant to Thai law to register in the name of non-Thai
persons and whether higher or lower (such applicable percentage, the "Foreign
Ownership Percentage")) would be held by non-Thai persons, in which event the
Company shall issue the excess Warrant Shares in the name of the Designated
Purchaser or, if no such Designated Purchaser is so designated, shall pay the
Cash Amount (as defined below).
(c) If the Company is unable (or reasonably believes that it is
unable, in accordance with the conditions set forth in paragraph (b)) to issue
or deliver any of the Warrant Shares issuable upon exercise of any Warrant and
(unless a Designated Purchaser has been registered in the name of a non-Thai
person in accordance with such conditions), it shall issue such Warrant Shares
as it is so able to issue and register and shall, no later than the 45th
Business Day after the relevant Exercise Date, pay to the relevant Holder of
Warrants an amount (the "Cash Amount") equal to (i) the aggregate Market Price
(as hereinafter defined) of the number of remaining Warrant Shares to which the
holder of Warrants would have been
entitled on the second trading day preceding the Exercise Date (converted into
U.S. Dollars at the middle rate quoted by the Bank of Thailand for the purchase
of U.S. Dollars with Baht on such date) less (ii) the per share Exercise Price
multiplied by the number of such remaining Warrant Shares. If a Market Price
based on the foreign board of the Stock Exchange of Thailand ("SET") is not
available on that second trading day, the latest available Market Price based on
the foreign board for the next three preceding trading days shall be taken, or
if none is available the Market Price based on the domestic board of the SET on
the second trading day preceding the Exercise Date shall be taken, failing which
the Market Price shall be taken for the most recent trading day before then for
which a Market Price is available. The Cash Amount shall be paid in accordance
with instructions specified in writing to the Warrant Agent.
The term "Market Price" for any trading day means the average
transaction price for the Company's Ordinary Shares on that day, or, if no
transaction takes place on such day, the average of the closing bid and offered
prices on such day, in either case as reported by the SET on the foreign board
or, as the case may be, the domestic board of the SET.
(d) If with respect to any Exercise Date more than one Holder of
Warrants has exercised its Warrants and the Company is not able to issue and
deliver any Warrant Shares as provided above, the Company shall treat all such
Holders of Warrants on a pro-rata basis to their respective entitlements and
shall issue such Warrant Shares as it is able (rounded down, if necessary, to
the nearest whole share) and pay the relevant Cash Amounts on a proportionate
basis among such Holders of Warrants.
(e) Notwithstanding the foregoing, the Company shall not pay the
Cash Amount in accordance with the foregoing provisions (but shall instead issue
the relevant Warrant Shares) if the Warrants may be converted into Warrant
Shares which may be issued to a Person or entity for the benefit of non-Thai
persons (provided that such benefit need not include voting rights), all in
accordance with any relevant Thai law and the Articles of Association of the
Company; provided that this paragraph shall not apply with respect to any Holder
of Warrants which specifies in writing to the Warrant Agent that such Warrant
Shares are not to be issued to such Person.
(f) The Company hereby agrees that the Company shall not issue any
Ordinary Shares or other equity interests (other than Warrant Shares pursuant to
the exercise of Warrants) to any Holders if the Company is aware (taking into
account its ability to access relevant information) that the effect of such
issuance would be, assuming the immediate exercise of all then outstanding
Warrants by non-Thai persons, to cause the Company to exceed the Foreign
Ownership Percentage.
(g) The Company hereby agrees that, in the event the Company
establishes a facility for the deposit of Ordinary Shares and the issuance of
American Depositary Receipts ("ADRs"), the Company shall, subject to applicable
law, take all reasonable steps in connection with establishing such facility to
provide for the deposit of Warrant Shares therein and shall take such action as
is required pursuant to Section 7.04 to amend this Warrant Agreement to provide
Holders of Warrants with the right, at their election, to exercise their
Warrants for ADRs.
ARTICLE 4
Antidilution Provisions
SECTION 4.01. Changes in Ordinary Shares. In the event that at any
time or from time to time the Company shall (i) pay a dividend or make a
distribution on its Ordinary Shares in Ordinary Shares or other shares of its
authorized share capital, (ii) subdivide or split its outstanding Ordinary
Shares into a larger number of Ordinary Shares, (iii) combine its outstanding
Ordinary Shares into a smaller number of Ordinary Shares or (iv) increase or
decrease the number of Ordinary Shares outstanding by reclassification of its
Ordinary Shares, then the number of Ordinary Shares issuable upon exercise of
each Warrant immediately after the happening of such event shall be adjusted to
a number determined by multiplying the number of Ordinary Shares that such
Holder would have owned or have been entitled to receive upon exercise had such
Warrants been exercised immediately prior to the happening of the events
described above (or, in the case of a dividend or distribution of Ordinary
Shares or other shares, immediately prior to the record date therefor) by a
fraction, the numerator of which shall be the total number of Ordinary
Shares outstanding immediately after the happening of the events described above
and the denominator of which shall be the total number of Ordinary Shares
outstanding immediately prior to the happening of the events described above;
and subject to Section 4.08, the Exercise Price for each Warrant shall be
adjusted to a number determined by dividing the Exercise Price immediately prior
to such event by such fraction. An adjustment made pursuant to this Section 4.01
shall become effective immediately after the effective date of such event,
retroactive to the record date therefor in the case of a dividend or
distribution in Ordinary Shares or other shares of the Company's authorized
share capital.
SECTION 4.02. Cash Dividends and Other Distributions. In the event
that at any time or from time to time the Company shall distribute to holders of
Ordinary Shares (i) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for or purchase any
of the foregoing (other than, in each case, (w) the issuance of any rights under
a shareholder rights plan, (x) any dividend or distribution described in Section
4.01, (y) any rights, options, warrants or securities described in Section 4.03
and (z) any cash dividends or other cash distributions from current or retained
earnings other than Extraordinary Cash Dividends), then the number of Ordinary
Shares purchasable upon the exercise of each Warrant shall be increased to a
number determined by multiplying the number of Ordinary Shares issuable upon the
exercise of such Warrant immediately prior to the record date for any such
dividend or distribution by a fraction, the numerator of which shall be the
Current Market Value per Ordinary Share on the record date for such dividend or
distribution and the denominator of which shall be such Current Market Value per
Ordinary Share on the record date for such dividend or distribution less the sum
of (x) the amount of cash, if any, distributed per Ordinary Share and (y) the
fair value (as determined in good faith by the Board, whose determination shall
be evidenced by a board resolution filed with the Warrant Agent, a copy of which
will be sent to Holders upon request) of the portion, if any, of the
distribution applicable to one Ordinary Share consisting of evidences of
indebtedness, shares, securities, other property, warrants, options or
subscription or purchase rights; and subject to Section 4.08, the Exercise Price
shall be adjusted to a number determined by dividing the Exercise Price
immediately
prior to such record date by the above fraction. Such adjustments shall be made
whenever any distribution is made and shall become effective as of the date of
distribution, retroactive to the record date for any such distribution. No
adjustment shall be made pursuant to this Section 4.02 which shall have the
effect of decreasing the number of Ordinary Shares issuable upon exercise of
each Warrant or increasing the Exercise Price.
SECTION 4.03. Rights Issue. In the event that at any time or from
time to time the Company shall issue rights, options or warrants entitling the
holders thereof to subscribe for Ordinary Shares, or securities convertible into
or exchangeable or exercisable for Ordinary Shares to all holders of Ordinary
Shares without any charge, entitling such holders to subscribe for or purchase
Ordinary Shares at a price per share that is lower at the record date for such
issuance than the then Current Market Value per Ordinary Share, the number of
Ordinary Shares purchasable upon the exercise of each Warrant shall be increased
to a number determined by multiplying the number of Ordinary Shares theretofore
issuable upon exercise of each Warrant by a fraction, the numerator of which
shall be the number of Ordinary Shares outstanding on the date of issuance of
such rights, options, warrants or securities plus the number of additional
Ordinary Shares offered for subscription or purchase or into or for which such
securities that are issued are convertible, exchangeable or exercisable, and the
denominator of which shall be the number of Ordinary Shares outstanding on the
date of issuance of such rights, options, warrants or securities plus the total
number of Ordinary Shares which the aggregate consideration expected to be
received by the Company (assuming the exercise or conversion of all such rights,
options, warrants or securities) would purchase at the then Current Market Value
per Ordinary Share. Subject to Section 4.08, in the event of any such
adjustment, the Exercise Price shall be adjusted to a number determined by
dividing the Exercise Price immediately prior to such date of issuance by the
aforementioned fraction. Such adjustment shall be made immediately after such
rights, options or warrants are issued and shall become effective, retroactive
to the record date for the determination of stockholders entitled to receive
such rights, options, warrants or securities. No adjustment shall be made
pursuant to this Section 4.03 which shall have the effect of decreasing the
number of Ordinary Shares purchasable upon exercise of each Warrant or of
increasing the Exercise
Price.
SECTION 4.04 Issuance of Ordinary Shares or Rights. In the event
that at any time or from time to time the Company shall issue Ordinary Shares at
a price per share at the record date of such issuance that is less than the then
Current Market Value per Ordinary Share, the number of Ordinary Shares
purchasable upon the exercise of each Warrant shall be increased to a number
determined by multiplying the number of Ordinary Shares theretofore issuable
upon exercise of each Warrant by a fraction, the numerator of which shall be the
number of Ordinary Shares outstanding immediately after such sale or issuance
plus the number of additional Ordinary Shares offered for subscription or
purchase or into or for which such securities that are issued are convertible,
exchangeable or exercisable, and the denominator of which shall be the number of
Ordinary Shares outstanding immediately prior to such sale or issuance plus the
total number of Ordinary Shares which the aggregate consideration expected to be
received by the Company (assuming the exercise or conversion of all such rights,
options, warrants or securities, if any) would purchase at the then Current
Market Value per Ordinary Share; and subject to Section 4.08 the Exercise Price
shall be adjusted to a number determined by dividing the Exercise Price
immediately prior to such date of issuance by the aforementioned fraction. Such
adjustments shall be made whenever such rights, options or warrants or
convertible securities are issued. No adjustment shall be made pursuant to this
Section 4.04 which shall have the effect of decreasing the number of Ordinary
Shares issuable upon exercise of each warrant or of increasing the Exercise
Price.
SECTION 4.05. Combination; Liquidation. (a) Except as provided in
Section 4.05(b), in the event of a Combination, each Holder shall have the right
to receive upon exercise of the Warrants the kind and amount of Ordinary Shares
or other securities or property which such Holder would have been entitled to
receive upon or as a result of such Combination had such Warrant been exercised
immediately prior to such event. Unless paragraph (b) is applicable to a
Combination, the Company shall provide that the surviving or acquiring Person
(the "Successor Company") in such Combination will enter into an agreement with
the Warrant Agent confirming the Holders' rights pursuant to this Section
4.05(a) and providing for adjustments, which shall be as nearly equivalent as
may be practicable to the
adjustments provided for in this Article 4. The provisions of this Section
4.05(a) shall similarly apply to successive Combinations involving any Successor
Company.
(b) In the event of (i) a Combination where consideration to the
holders of Ordinary Shares in exchange for their shares is payable solely in
cash or (ii) the dissolution, liquidation or winding-up of the Company, then the
holders of the Warrants shall be entitled to receive, upon surrender of their
Warrant Certificates, distributions on an equal basis with the holders of
Ordinary Shares or other securities issuable upon exercise of the Warrants, as
if the Warrants had been exercised immediately prior to such event, less the
Exercise Price.
In case of any Combination described in this Section 4.05(b), 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
Warrant Agent the funds, if any, necessary to pay to the holders of the Warrants
the amounts to which they are entitled as described above. After such funds and
the surrendered Warrant Certificates are received, the Warrant Agent is required
to deliver a check in such 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 Holders
surrendering such Warrants.
SECTION 4.06. Other Events. If any event occurs as to which the
foregoing provisions of this Article 4 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board, fairly
and adequately protect the purchase rights of the Warrants in accordance with
the essential intent and principles of such provisions, then such Board shall
make such adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary, in the
good faith opinion of such Board, to protect such purchase rights as aforesaid,
but in no event shall any such adjustment have the effect of increasing the
Exercise Price or decreasing the number of Ordinary Shares issuable upon
exercise of any Warrant.
SECTION 4.07. Superseding Adjustment. Upon the expiration of any
rights, options, warrants or conversion or exchange privileges which resulted in
adjustments pursuant
to this Article 4, if any thereof shall not have been exercised, the number of
Warrant Shares issuable upon the exercise of each Warrant shall be readjusted
pursuant to the applicable section of Article 4 as if (A) the only Ordinary
Shares issuable upon exercise of such rights, options, warrants, conversion or
exchange privileges were the Ordinary Shares, if any, actually issued upon the
exercise of such rights, options, warrants or conversion or exchange privileges
and (B) Ordinary Shares actually issued, if any, were issuable for the
consideration actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or conversion or
exchange privileges whether or not exercised and the Exercise Price shall be
readjusted inversely; provided, however, that no such readjustment shall (except
by reason of an intervening adjustment under Section 4.01) have the effect of
decreasing the number of Warrant Shares purchasable upon the exercise of each
Warrant or increase the Exercise Price by an amount in excess of the amount of
the adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion or exchange privileges.
SECTION 4.08. Minimum Adjustment. The adjustments required by the
preceding Sections of this Article 4 shall be made whenever and as often as any
specified event requiring an adjustment shall occur, except that no adjustment
of the Exercise Price or the number of Ordinary Shares issuable upon exercise of
Warrants that would otherwise be required shall be made unless and until such
adjustment either by itself or with other adjustments not previously made
increases or decreases by at least 1% the Exercise Price or the number of
Ordinary Shares issuable upon exercise of Warrants immediately prior to the
making of such adjustment. Any adjustment representing a change of less than
such minimum amount shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Article 4 and not
previously made, would result in a minimum adjustment. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence. In computing adjustments under this
Article 4, fractional interests in Ordinary Shares shall be taken into account
to the nearest one-hundredth of a share.
SECTION 4.09. Notice of Adjustment. Whenever the
Exercise Price or the number of Ordinary Shares and other property, if any,
issuable upon exercise of the Warrants is adjusted, as herein provided, the
Company shall deliver to the Warrant Agent a certificate of a firm of
independent accountants selected by the Board (who may be the regular
accountants employed by the Company) setting forth, in reasonable detail, the
event requiring the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which (i) the Board
determined the fair value of any evidences of indebtedness, other securities or
property or warrants, options or other subscription or purchase rights and (ii)
the Current Market Value of the Ordinary Shares was determined, if either of
such determinations were required), and specifying the Exercise Price and the
number of Ordinary Shares issuable upon exercise of Warrants after giving effect
to such adjustment. The Company shall promptly cause the Warrant Agent to mail a
copy of such certificate to each Holder in accordance with Section 7.06. The
Warrant Agent shall be entitled to rely on such certificate and shall be under
no duty or responsibility with respect to any such certificate, except to
exhibit the same from time to time, to any Holder desiring an inspection thereof
during reasonable business hours. The Warrant Agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Exercise Price or the number of
Ordinary Shares or other stock or property issuable on exercise of the Warrants,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed in making such adjustment or the validity or
value of any Ordinary Shares, evidences of indebtedness, warrants, options, or
other securities or property.
SECTION 4.10. Notice of Certain Transactions. In the event that the
Company shall propose to (a) pay any dividend payable in securities of any class
to the holders of its Ordinary Shares or to make any other non-cash dividend or
distribution to the holders of its Ordinary Shares, (b) offer the holders of its
Ordinary Shares rights to subscribe for or to purchase any securities
convertible into Ordinary Shares or shares of any class or any other securities,
rights or options, (c) issue any (i) Ordinary Shares, (ii) rights, options or
warrants entitling the holders thereof to subscribe for Ordinary Shares, or
(iii) securities convertible into or exchangeable or exercisable for Ordinary
Shares (in the case of (i),
(ii) and (iii), if such issuance or adjustment would result in an adjustment
hereunder), (d) effect any capital reorganization, reclassification,
consolidation or merger, (e) effect the voluntary or involuntary dissolution,
liquidation or winding-up of the Company or (f) make a tender offer or exchange
offer with respect to the Ordinary Shares, the Company shall within 5 days send
to the Warrant Agent and the Warrant Agent shall within 5 days send the Holders
a notice (in such form as shall be furnished to the Warrant Agent by the
Company) of such proposed action or offer. Such notice shall be mailed by the
Warrant Agent to the Holders at their addresses as they appear in the
Certificate Register, which shall specify the record date for the purposes of
such dividend, distribution or rights, or the date such issuance or event is to
take place and the date of participation therein by the holders of Ordinary
Shares, if any such date is to be fixed, and shall briefly indicate the effect
of such action on the Ordinary Shares and on the number and kind of any other
shares and on other property, if any, and the number of shares of Ordinary
Shares and other property, if any, issuable upon exercise of each Warrant and
the Exercise Price after giving effect to any adjustment pursuant to Article 4
which will be required as a result of such action. Such notice shall be given as
promptly as possible and (x) in the case of any action covered by clause (a) or
(b) above, at least 10 days prior to the record date for determining holders of
the Ordinary Shares for purposes of such action or (y) in the case of any other
such action, at least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Ordinary Shares,
whichever shall be the earlier.
SECTION 4.11. Adjustment to Warrant Certificate. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article 4, and Warrant Certificates issued after such adjustment may state the
same Exercise Price and the same number of Ordinary Shares issuable upon
exercise of the Warrants as are stated in the Warrant Certificates initially
issued pursuant to this Agreement. The Company, however, may at any time in its
sole discretion make any change in the form of Warrant Certificate that it may
deem appropriate to give effect to such adjustments and that does not affect the
substance of the Warrant Certificate, and any Warrant Certificate thereafter
issued or countersigned, whether in exchange or substitution for an outstanding
Warrant Certificate or
otherwise, may be in the form as so changed.
ARTICLE 5
Registration Rights
SECTION 5.01. Effectiveness of Registration Statement. Subject to
Section 5.02, the Company shall cause to be filed pursuant to Rule 415 (or any
successor provision) of the Securities Act not later than 90 days after the
Issue Date, a shelf registration statement relating to the offer and sale of the
Warrants by the Holders from time to time in accordance with the methods of
distribution elected by such holders and set forth in such registration
statement (the "Warrant Shelf Registration Statement"), and shall use its
reasonable best efforts to cause the Warrant Shelf Registration Statement to be
declared effective on or before 180 days after the Issue Date and a shelf
registration statement covering the issuance of Warrant Shares to the Holders
upon exercise of the Warrants by the Holders thereof (the "Common Shelf
Registration Statement", and together with the Warrant Shelf Registration
Statement, the "Registration Statements") and shall use its reasonable best
efforts to cause the Common Shelf Registration Statement to be declared
effective on or before 365 days after the Issue Date, and to cause each of the
Registration Statements to remain effective until the earliest of (i) such time
as all Warrants have been sold or exercised, as the case may be, (ii) the
Expiration Date and (iii) in the case of the Warrant Shelf Registration
Statement, until all Warrants can be sold without restriction under the
Securities Act. In connection with any Registration Statement, (i) the Company
shall furnish to the Warrant Agent, prior to the filing with the Commission, a
copy of any Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the prospectus included therein and shall
use its reasonable best efforts to reflect in each such document, when filed
with the Commission, such comments as the Warrant Agent may reasonably propose,
(ii) the Company shall furnish to each Holder, without charge, at least one copy
of any Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those incorporated by reference), (iii)
the Company shall, for so long as any Registration Statement is
effective, deliver to each Holder, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request, and the Company consents to the proper use of the prospectus therein
and any amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Warrants or the Warrant Shares, as
the case may be, covered by such prospectus and any amendment or supplement
thereto, (iv) the Company may require each Holder of Warrants to be sold
pursuant to the Warrant Shelf Registration Statement or to be exercised in
connection with the Common Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
Warrants or Warrant Shares as the Company may from time to time reasonably
request for inclusion in such Registration Statement, (v) the Company shall, if
requested, promptly incorporate in a prospectus supplement or post-effective
amendment to such Registration Statement such information as a majority in
interest of the Holders reasonably agree should be included therein and shall
make all required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment, (vi) the Company shall enter
into such agreements (including underwriting agreements) as are appropriate,
customary and reasonably necessary in connection with any such Registration
Statement and (vii) the Company shall (A) make available all material customary
for reasonable due diligence examinations in connection with such Registration
Statements, (B) make such representations and warranties to the Holders of
Warrants and the underwriters, if any, as are customary and reasonable in
connection with such Registration Statements, (C) obtain such opinions of
counsel to the Company addressed to and reasonably satisfactory to the Holders
as are customary and reasonable in connection with such Registration Statements
and (D) obtain such "comfort" letters and updates thereof from the independent
certified public accountants of the Company addressed to the Holders as are
customary and reasonable in connection with such Registration Statements. The
Company will furnish the Warrant Agent with current prospectuses meeting the
requirements of the Securities Act in sufficient quantity to permit the Warrant
Agent to deliver, at the Company's expense, a prospectus to each Holder of a
Warrant upon the exercise thereof. The Company shall promptly inform the Warrant
Agent in writing of any change in the status of the effectiveness or
availability of any Registration Statement.
SECTION 5.02. Suspension. During any consecutive 365-day period, the
Company shall be entitled to suspend the availability of each of the Warrant
Shelf Registration Statement and the Common Shelf Registration Statement for up
to two 45 consecutive-day periods (except during the 45 consecutive-day period
immediately prior to the Expiration Date) if the Company's Board determines in
the exercise of its reasonable judgment that there is a valid business purpose
for such suspension and provides written notice that such determination was made
by the Company's board and of the suspension of such Registration Statement to
the Warrant Agent and the Holders of the Warrants; provided, however, that in no
event shall the Company be required to disclose the business purpose for such
suspension if the Company determines in good faith that such business purpose
must remain confidential.
SECTION 5.03. Blue Sky. The Company shall use its reasonable best
efforts to register or qualify the Warrants and the Warrant Shares under all
applicable securities laws, blue sky laws or similar laws of all jurisdictions
in the United States and Canada in which any Holder of Warrants may or may be
deemed to purchase Warrants or Warrant Shares upon the exercise of Warrants and
shall use its reasonable best efforts to maintain such registration or
qualification through the earliest of (i) such time as all Warrants have been
exercised, (ii) the Expiration Date and (iii) in the case of the Warrant Shelf
Registration Statement, until all Warrants can be sold without restriction under
the Securities Act; provided, however, that the Company shall not be required to
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 5.03 or to take any action
which would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
SECTION 5.04. Accuracy of Disclosure. The Company represents and
warrants to each Holder and agrees for the benefit of each Holder that (i) each
of the Warrant Shelf Registration Statement and the Common Shelf Registration
Statement and any amendment thereto will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to
make the statements contained therein not misleading; and (ii) each of the
prospectus furnished to such Holder for delivery in connection with the sale of
Warrants and the prospectus delivered to such Holder upon the exercise of
Warrants and the documents incorporated by reference therein will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company shall have no liability under
clauses (i) or (ii) of this Section 5.04 with respect to any such untrue
statement or omission made in any Registration Statement in reliance upon and in
conformity with information furnished to the Company by or on behalf of the
Holders specifically for inclusion therein.
SECTION 5.05. Indemnification. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless each
Holder of the Warrants and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder and such
controlling persons being referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including but not limited to any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Warrants or the Warrant Shares) to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement or prospectus or in any amendment or supplement
thereto, or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and shall reimburse, as incurred, the Indemnified Parties
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or any
preliminary or final prospectus or in any amendment or supplement thereto in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein, (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any prospectus relating to such
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Person as to which there is a prospectus
delivery requirement (a "Delivering Seller") that sold the Securities to the
Person asserting any such losses, claims, damages or liabilities to the extent
that any such loss, claim, damage or liability of such Delivering Seller results
from the fact that there was not sent or given to such Person, on or prior to
the written confirmation of such sale, a copy of the relevant prospectus, as
amended and supplemented, provided that (I) the Company shall have previously
furnished copies thereof to such Delivering Seller in accordance with this
Agreement and (II) such furnished prospectus, as amended and supplemented, would
have corrected any such untrue statement or omission or alleged untrue statement
or omission, and (iii) this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party. The
Company shall also indemnify underwriters, selling brokers, dealer-managers and
similar securities industry professionals participating in the distribution (in
each case as described in such Registration Statement), their officers and
directors and each Person who controls such Persons within the meaning of the
Securities Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) In connection with any Registration Statement, each Holder of
the Warrants, severally and not jointly, will indemnify and hold harmless the
Company and each Person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act from and against any losses, claims,
damages or liabilities or any actions in respect thereof to which the Company or
any such controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement or
preliminary or final prospectus or in any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this section, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above, except to the
extent that it is prejudiced or harmed in any material respect by failure to
give such prompt notice. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with one counsel (and local counsel as
necessary) reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this section for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof. No indem-
nifying party shall, without the prior written consent of the indemnified party,
not to be unreasonably withheld, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. No indemnifying party shall be liable for any amounts paid in
settlement of any action or claim without its written consent, which consent
shall not be unreasonably withheld.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above for any reason other than as provided in subsection
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified person, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 5(d), the Holders shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Warrants pursuant to the Warrant Shelf Registration
Statement or the Warrant Shares pursuant to the Common Shelf Registration
Statement exceeds the amount of damages which such Holders would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each officer, director,
employee, representative and agent of an indemnified party and each Person, if
any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party, and each officer, director, employee, representative and
agent of the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as the Company.
(e) The agreements contained in this section shall survive the sale
of the Warrants pursuant to the Warrant Shelf Registration Statement and the
sale of the Warrant Shares pursuant to the Common Shelf Registration Statement,
as the case may be, and shall remain in full force and effect, regardless of any
termination or cancelation of this Agreement or any investigation made by or on
behalf of any indemnified party.
SECTION 5.06. Additional Acts. If the sale of Warrants or the
issuance or sale of any Ordinary Shares or other securities issuable upon the
exercise of the Warrants requires registration or approval of any governmental
authority (other than the registration requirements under the Securities Act),
or the taking of any other action under the laws of the United States of America
or any political subdivision thereof before such securities may be validly
offered or sold in compliance with such laws, then the Company covenants that it
will, in good faith and as expeditiously as reasonably possible, endeavor to
secure and maintain such registration or approval or to take such other action,
as the case may be. In that connection, the Company
represents that the Warrants have been issued by the Company in reliance on a
private placement exemption according to which sales to certain qualified
institution investors provide an exemption from the requirement to file a
registration statement with the Securities and Exchange Commission of Thailand.
The Company covenants that, in the event the Company loses its eligibility for
such private placement exemption, it will, in good faith and as expeditiously as
reasonably possible, endeavor to file such a registration statement with the
Securities and Exchange Commission of Thailand.
SECTION 5.07. Expenses. All expenses incident to the Company's
performance of or compliance with its obligations under this Article 5 will be
borne by the Company, including without limitation: (i) all SEC, stock exchange
or National Association of Securities Dealers, Inc. registration and filing
fees, (ii) all reasonable fees and expenses incurred in connection with
compliance with state securities or blue sky laws, (iii) all expenses of any
Persons incurred by or on behalf of the Company in preparing or assisting in
preparing, printing and distributing the Warrant Shelf Registration Statement,
the Common Shelf Registration Statement or any other registration statement,
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Article 5, (iv) the fees and
disbursements of the Warrant Agent, (v) the fees and disbursements of counsel
for the Company and the Warrant Agent and (vi) the fees and disbursements of the
independent public accountants of the Company, including the expenses of any
special audits or comfort letters required by or incident to such performance
and compliance.
ARTICLE 6
Warrant Agent
SECTION 6.01. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the provisions of this Agreement and the Warrant Agent hereby accepts such
appointment.
SECTION 6.02. Rights and Duties of Warrant Agent.
(a) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship or agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(b) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (who may be counsel to the Company), and the advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(c) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(d) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein and in the Warrant
Certificates, and no implied duties or obligations of the Warrant Agent shall be
read into this Agreement or the Warrant Certificates. The Warrant Agent shall
not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability for which it does not receive indemnity
if such indemnity is reasonably requested. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates countersigned by the Warrant Agent and delivered
by it to the Holders or on behalf of the Holders pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrants. The Warrant
Agent shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written demand from a
Holder with respect to such default, including any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise.
(e) Not Responsible for Adjustments or Validity of Shares. The
Warrant Agent shall not at any time be under any duty or responsibility to any
Holder to determine
whether any facts exist that may require an adjustment of the number of Ordinary
Shares issuable upon exercise of each Warrant or the Exercise Price, or with
respect to the nature or extent of any adjustment when made or with respect to
the method employed or provided to be employed herein or in any supplemental
agreement in making the same. The Warrant Agent shall not be accountable with
respect to the validity or value of any Warrant, any Ordinary Shares or of any
securities or property which may at any time be issued or delivered upon the
exercise of any Warrant or upon any adjustment pursuant to Article 4, and it
makes no representation with respect thereto. The Warrant Agent shall not be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any Ordinary Shares or share certificates upon the surrender
of any Warrant Certificate for the purpose of exercise or upon any adjustment
pursuant to Article 4, or to comply with any of the covenants of the Company
contained in this Agreement or the Warrants.
SECTION 6.03. Individual Rights of Warrant Agent. The Warrant Agent
and any shareholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or its
affiliates or become pecuniarily interested in transactions in which the Company
or its affiliates may be interested, or contract with or lend money to the
Company or its affiliates or otherwise act as fully and freely as though it were
not the Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
SECTION 6.04. Warrant Agent's Disclaimer. The Warrant Agent shall
not be responsible for and makes no representation as to the validity or
adequacy of this Agreement or the Warrant Certificates and it shall not be
responsible for any statement in this Agreement or the Warrant Certificates
other than its countersignature thereon.
SECTION 6.05. Compensation and Indemnity. The Company and the
Warrant Agent have entered into an agreement pursuant to which the Company
agrees to pay the Warrant Agent from time to time reasonable compensation for
its services and to reimburse the Warrant Agent upon request for all reasonable
out-of-pocket expenses incurred by it, including the reasonable compensation and
expenses of the
Warrant Agent's agents and counsel. The Company shall indemnify the Warrant
Agent against any loss, liability or expense (including agents' and attorneys'
fees and expenses) incurred by it without negligence or bad faith on its part
arising out of or in connection with the acceptance or performance of its duties
under this Agreement. The Warrant Agent shall notify the Company promptly of any
claim for which it may seek indemnity. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Warrant Agent
through wilful misconduct, negligence or bad faith. The Company's payment
obligations pursuant to this Section 6.05 shall survive the resignation or
removal of the Warrant Agent or the termination of this Agreement.
To secure the Company's payment obligations under this Agreement,
the Warrant Agent shall have a lien prior to the Holders on all money or
property held or collected by the Warrant Agent.
SECTION 6.06. Successor Warrant Agent. (a) The Company to Provide
Warrant Agent. The Company agrees for the benefit of the Holders that there
shall at all times be a Warrant Agent hereunder until all the Warrants have been
exercised or are no longer exercisable.
(b) Resignation and Removal. The Warrant Agent may at any time
resign by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided, however, that such date shall not be less than 60 days after the date
on which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective, which date shall not be
less than 60 days after such notice is given unless the Warrant Agent otherwise
agrees. Any removal under this Section 6.06 shall take effect upon the
appointment by the Company as hereinafter provided of a successor Warrant Agent
(which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.
(c) The Company to Appoint Successor. In the
event that at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall commence a voluntary case under Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or state
bankruptcy, insolvency or similar law, or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree order by a
court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be the Warrant Agent hereunder; provided,
however, that in the event of the resignation of the Warrant Agent hereunder,
such resignation shall be effective on the earlier of (i) the date specified in
the Warrant Agent's notice of resignation and (ii) the appointment and
acceptance of a successor Warrant Agent hereunder.
(d) Successor To Expressly Assume Duties. Any successor Warrant
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the rights and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Successor by Merger. Any corporation into which the Warrant
Agent hereunder may be merged or consolidated, or any corporation resulting from
any merger or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that it
shall be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 7
Miscellaneous
SECTION 7.01. SEC Reports and Other Information. Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the SEC and thereupon
provide the Warrant Agent and Holders with such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections.
SECTION 7.02. Persons Benefitting. Nothing in this Agreement is
intended or shall be construed to confer upon any Person other than the Company,
the Warrant Agent and the Holders any right, remedy or claim under or by reason
of this Agreement or any part hereof.
SECTION 7.03. Rights of Holders. Except as otherwise required by
law, Holders of unexercised Warrants are not entitled to (i) receive dividends
or other distributions, (ii) receive notice of or vote at any meeting of the
shareholders, (iii) consent to any action of the shareholders, (iv) receive
notice as shareholders of any
other proceedings of the Company, (v) exercise any preemptive rights or (vi)
exercise any other rights whatsoever as shareholders of the Company.
SECTION 7.04. Amendment. This Agreement may be amended by the
parties hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with respect to
matters or questions arising under this Agreement as the Company and the Warrant
Agent may deem necessary or desirable (including without limitation any addition
or modification to provide for compliance with the transfer restrictions set
forth herein) or to provide holders of Warrants the right to exercise their
Warrants for ADRs; provided, however, that such action shall not adversely
affect the rights of any of the Holders. Any amendment or supplement to this
Agreement that has an adverse effect on the interests of the Holders shall
require the written consent of the Holders of a majority of the then outstanding
Warrants. The consent of each Holder affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the number
of Warrant Shares issuable upon exercise of Warrants would be decreased (other
than pursuant to adjustments provided herein). In determining whether the
Holders of the required number of Warrants have concurred in any direction,
waiver or consent, Warrants owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Warrant Agent shall be
protected in relying on any such direction, waiver or consent, only Warrants
which the Warrant Agent knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Warrants outstanding at the time shall be
considered in any such determination.
SECTION 7.05. Notices. Any notice or communication shall be in
writing and delivered in Person or mailed by first-class mail addressed as
follows:
if to the Company:
Nakornthai Strip Mill Public Company Limited
Chonburi Industrial Estate (Bowin)
358 M006, Highway 331, Sriarcha
Chonburi 20230 Thailand
Attention: John W. Schultes
with a copy to:
White & Case L.L.P.
1155 Avenue of the Americas
New York, NY 10036
Attention: Timothy Goodell, Esq.
if to the Warrant Agent:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Department
The Company or the Warrant Agent by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to
the Holder at the Holder's address as it appears on the Certificate Register and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 7.06. Governing Law. The laws of the State of New York shall
govern this Agreement and the Warrant Certificates.
SECTION 7.07. Successors. All agreements of the Company in this
Agreement and the Warrant Certificates shall bind its successors. All agreements
of the Warrant Agent in this Agreement shall bind its successors.
SECTION 7.08. Multiple Originals. The parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Agreement.
SECTION 7.09. Table of Contents. The table of contents and headings
of the Articles and Sections of this Agreement have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.
SECTION 7.10. Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
NAKORNTHAI STRIP MILL
PUBLIC COMPANY LIMITED,
by : /s/ John W. Shultes
Title: President/CEO
UNITED STATES TRUST COMPANY OF
NEW YORK, as Warrant Agent,
by : /s/ James Nesci
Title: Assistant Vice President
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT AT MATURITY
OF 12 1/4% SENIOR SUBORDINATED MORTGAGE NOTES DUE 2008 OF THE NOTE ISSUERS (THE
"NOTES") AND 633.09266 WARRANTS. PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON JUNE
10, 1998 OR SUCH EARLIER DATE AS NATWEST CAPITAL MARKETS LIMITED MAY, IN ITS
DISCRETION, DEEM APPROPRIATE, THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY
NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR
EXCHANGED ONLY TOGETHER WITH, THE NOTES.
THE ORDINARY SHARES, PAR VALUE 10 BAHT PER SHARE, OF THE COMPANY FOR WHICH THIS
WARRANT IS EXERCISABLE MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS. ACCORDINGLY, NO HOLDER SHALL BE ENTITLED TO
EXERCISE SUCH HOLDER'S WARRANTS AT ANY TIME UNLESS, AT THE TIME OF EXERCISE, (i)
A REGISTRATION STATEMENT UNDER THE SECURITIES ACT RELATING TO THE ORDINARY
SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAS BEEN FILED WITH, AND
DECLARED EFFECTIVE BY, THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), AND
NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF SUCH REGISTRATION STATEMENT HAS
BEEN ISSUED BY THE SEC, OR (ii) THE ISSUANCE OF SUCH SHARES IS PERMITTED
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS
IN DEFINITIVE FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. THE DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW
YORK) SHALL ACT AS THE DEPOSITORY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE
COMPANY AND THE WARRANT AGENT. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE
SECURITIES ACT AS IN EFFECT WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE WARRANT AGENT) AND IF REQUESTED BY THE WARRANT
AGENT, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT AN INITIAL INVESTOR
- -------------------------------
1. To be included only if the Warrant is in global form.
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR, PURCHASING AS DESCRIBED IN CLAUSE
(1)(B) ABOVE SHALL NOT BE PERMITTED TO TRANSFER THIS SECURITY TO AN
INSTITUTIONAL ACCREDITED INVESTOR.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. [ ] Certificate for Warrants
-------
WARRANTS TO PURCHASE ORDINARY SHARES OF
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
THIS CERTIFIES THAT [ ], or its registered assigns,
is the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder thereof (the "Holder"), at its
option and subject to the provisions contained herein and in the Warrant
Agreement referred to below, to purchase from Nakornthai Strip Mill Public
Company Limited, a company incorporated under the laws of Thailand (the
"Company"), one ordinary share, par value 10 Baht per share, of the Company (the
"Ordinary Shares") at the per share exercise price of 10 Baht (the "Exercise
Price"). This Warrant Certificate shall terminate and become void as of the
close of business on February 1, 2008 (the "Expiration Date") or upon the
exercise hereof as to all the Ordinary Shares subject hereto. The number of
shares issuable upon exercise of the Warrants and the Exercise Price per share
shall be subject to adjustment from time to time as set forth in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of March 12, 1998 (the "Warrant Agreement"), between
the Company and United States Trust Company of New York (the "Warrant Agent",
which term includes any successor Warrant Agent under the Warrant Agreement),
and is subject to the terms and provisions contained in the Warrant Agreement,
to all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant
Agreement is hereby incorporated herein by reference and made a part hereof.
Reference is hereby made to the Warrant Agreement for a full statement of the
respective rights, limitations of rights, duties and obligations of the Company,
the Warrant Agent and the Holders of the Warrants. Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Warrant
Agreement. A copy of the Warrant Agreement may be obtained for inspection by the
Holder hereof upon written request to the Warrant Agent at United States Trust
Company of New York, 114 West 47th Street, New York, New York 10036, attention
of Corporate Trust Department.
Subject to the terms of the Warrant Agreement, the Warrants may be
exercised in whole or in part by presentation of this Warrant Certificate to the
Warrant Agent with the Election to Purchase attached hereto duly executed and
with the simultaneous payment of the Exercise Price in cash (subject to
adjustment) to the Company.
As provided in the Warrant Agreement and subject to the terms and
conditions therein set forth, the Warrants shall be exercisable at any time on
or after March 12, 1999; provided, however, that Holders of Warrants will be
able to exercise their Warrants only if a Common Shelf Registration Statement
relating to the Ordinary Shares underlying the Warrant is effective or the
exercise of such Warrants is exempt from the registration requirements of the
Securities Act of 1933 and such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states or other
jurisdictions in which such Holders reside; provided further, however, that no
Warrant shall be exercisable after February 1, 2008.
In the event the Company enters into a Combination, the Holder
hereof will be entitled to receive upon exercise of the Warrants the kind and
amount of shares or other securities or other property of such surviving entity
as the Holder would have been entitled to receive upon or as a result of the
combination had the Holder exercised its Warrants immediately prior to such
Combination; provided, however, that in the event that, in connection with such
Combination, consideration to holders of Ordinary Shares in exchange for their
shares is payable solely in cash or in the event of the dissolution, liquidation
or winding-up of the Company, the Holder hereof will be entitled to receive such
cash distributions as the
Holder would have received had the Holder exercised its Warrants immediately
prior to such Combination, less the Exercise Price.
As provided in the Warrant Agreement, the number of Ordinary Shares
issuable upon the exercise of the Warrants and the Exercise Price are subject to
adjustment upon the happening of certain events.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 2.06 of the Warrant
Agreement, but not for any exchange or original issuance (not involving a
transfer) with respect to temporary Warrant Certificates, the exercise of the
Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be
countersigned and issued to the Holder hereof a new Warrant Certificate
representing those Warrants which were not exercised. This Warrant Certificate
may be exchanged at the office of the Warrant Agent by presenting this Warrant
Certificate properly endorsed with a request to exchange this Warrant
Certificate for other Warrant Certificates evidencing an equal number of
Warrants. No fractional Warrant Shares will be issued upon the exercise of the
Warrants, but the Company shall pay an amount in cash equal to the Current
Market Value per Warrant Share on the day immediately preceding the date the
Warrant is exercised, multiplied by the fraction of a Warrant Share that would
be issuable on the exercise of any Warrant.
All Ordinary Shares issuable by the Company upon the exercise of the
Warrants shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
The Holder in whose name the Warrant Certificate is registered may
be deemed and treated by the Company and the Warrant Agent as the absolute owner
of the Warrant Certificate for all purposes whatsoever and neither the Company
nor the Warrant Agent shall be affected by notice to the contrary.
The Warrants do not entitle any Holder hereof to any of the rights
of a shareholder of the Company.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
NAKORNTHAI STRIP MILL
PUBLIC COMPANY LIMITED,
by
-------------------------------
Attest:
-------------------------------
Secretary
DATED:
Countersigned:
UNITED STATES TRUST COMPANY OF NEW YORK
as Warrant Agent,
by
Authorized Signatory
FORM OF ELECTION TO PURCHASE ORDINARY SHARES
(to be executed only upon exercise of Warrants)
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
The undersigned hereby irrevocably elects to exercise [ ]
Warrants at an exercise price per Warrant (subject to adjustment) of 10 Baht to
acquire [ ] Ordinary Shares, par value 10 Baht per share, of
Nakornthai Strip Mill Public Company Limited on the terms and conditions
specified within the Warrant Certificate and the Warrant Agreement therein
referred to, surrenders this Warrant Certificate and all right, title and
interest therein to Nakornthai Strip Mill Public Company Limited and directs
that the Ordinary Shares deliverable upon the exercise of such Warrants be
registered or placed in the name and at the address specified below and
delivered thereto.
Date: , 19
-------------- --
2
----------------------------------
(Signature of Owner)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
- ------------------------
2. The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a national bank
or trust company or by a member firm of any national securities exchange.
----------------------------------
Signature Guaranteed by:
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants represented by the Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
EXHIBIT B
FORM OF TRANSFER CERTIFICATE
(Transfers pursuant to Section 2.11(b)
of the Warrant Agreement)
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Department
Re: Warrants (the "Warrants") for Ordinary Shares of Nakornthai
Strip Mill Public Company Limited (the "Company")
Reference is hereby made to the Warrant Agreement dated as of March
12, 1998 (the "Warrant Agreement"), between the Company and United States Trust
Company of New York, as Warrant Agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to _______ Warrants which are evidenced by the
IAI Global Warrant (CUSIP No. ) and held by you on behalf of The Depository
Trust Company who in turn is holding an interest therein on behalf of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest in the Warrants to another Person.
In connection with such request and in respect of such Warrants, as
the Beneficial Owner we acknowledge (or if we are acting for the account of
another Person, such Person has confirmed to us in writing that it acknowledges)
that the Warrants have not been and will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"). We certify that we are (or it
is) the beneficial owner of the Warrants and that we are (or it is) a "qualified
institutional buyer": (as defined in Rule 144A under the Securities Act) acting
for our own account or for the account of one or more qualified institutional
buyers, and, accordingly, we agree (or if we were acting for the account of one
or more qualified institutional buyers, each
such qualified institutional buyer [an Institutional Accredited Investor acting
for our own account or on the account of an Institutional Accredited Investor,
have (or it has) furnished the Depositary a signed letter substantially in the
form set forth in Annex A hereto, and accordingly, we agree (or if we are acting
on behalf of an Institutional Accredited Investor, such Institutional Accredited
Investor]*** has confirmed to us that it agrees) that we (or it) will not offer,
sell, pledge or otherwise transfer the Warrants except in accordance with the
legends set forth in the Warrants which limit sales, among other things, (i) (A)
to a Person whom we and anyone acting on our behalf reasonably believe (or it
and anyone acting on its behalf reasonably believes) is a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, (B)
pursuant to the exemption from registration under the Act provided by Rule 144
(if available) or (C) to an Institutional Accredited Investor purchasing for its
own account or for the account of an Institutional Accredited Investor, that
delivers a letter to the Depositary in the form required by the Indenture, in
each case in accordance with any applicable securities laws of the states of the
United States or (ii) in an offshore transaction meeting the requirements of
Rule 903 or Rule 904 of Regulation S, in each case subject to the requirements
of the Indenture.
This certificate and the statements contained herein are made for
the benefit of the Company and the Initial Purchasers.
Dated:
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
(If the transferor is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such transferor must be stated.)
ANNEX A
to
EXHIBIT B
ACCREDITED INVESTOR LETTER
Ladies and Gentlemen:
In connection with our proposed purchase of 12% Senior Mortgage
Notes Due 2006 (the "Senior Notes") of NSM Steel (Delaware), Inc., a Delaware
corporation, and NSM Steel Company, Ltd., a Cayman Islands company, as
co-issuers (the "Note Issuers") and 203,500 Units (the "Units"), each consisting
of one 12 1/4% Senior Subordinated Mortgage Note Due 2008 (the "Senior
Subordinated Note") of the Note Issuers and 633.09266 warrants (collectively,
the "Warrants") to purchase one ordinary share, par value 10 Baht per share
(collectively, the "Ordinary Shares") of Nakornthai Strip Mill Public Company
Limited (the "Company"), all as described in the Offering Memorandum relating to
the offerings, we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated March 2, 1998, relating to the Senior Notes, Units, Senior
Subordinated Notes and Warrants (collectively, the "Securities") and such other
information as we deem necessary in order to make an investment decision with
respect thereto. We acknowledge that we have read and agreed to the matters
stated on pages 1, 2 and 3 of the Offering Memorandum and in the section
entitled "Transfer Restrictions" of the Offering Memorandum, including the
restrictions on duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth in the
Indentures relating to the Notes and the Senior Subordinated Mortgage Notes
(collectively, the "Notes") and the Warrant Agreement (as described in the
Offering Memorandum) and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we or they Should sell or otherwise transfer any Securities
prior to the date which is two years after the original issuance of the
Securities, we will do so in accordance with the provisions of any applicable
state securities ("blue sky") laws and only (i) to the Note Issuers, (ii) inside
the United States in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act), (iii) inside the United States to an institutional "accredited investor"
(as defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a United States broker-dealer) to the Trustee (as defined in the
Indentures relating to the Notes) or the Warrant Agent (as defined in the
Warrant Agreement relating to the Warrants), a signed letter containing certain
representations and agreements relating to the restrictions on transfer of' the
Securities (the form of which letter can be obtained from the Trustee or the
Warrant Agent) and, if such transfer is in respect of an aggregate principal
amount of Securities of less than U.S.$250,000, an opinion of counsel acceptable
to the Note Issuers that such transfer is in compliance with the registration
requirements of the Securities Act, (iv) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (v) pursuant to an
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
4. We are not acquiring the Securities for or on behalf of, and will not
transfer the Securities to, any pension or welfare plan (as defined in Section 3
of the Employee Retirement Income Security Act of 1974), except as permitted in
the section entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale or other transfer of any
Securities, we will be required to furnish to the Trustee and the Note Issuers
such certification, legal opinions and other information as the Trustee and the
Note Issuers may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule 501
(a)(1), (a)(2), (a)(3) or (a)(7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
7. We are acquiring the Securities purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor" or
"qualified institutional buyer") as to each of which we exercise sole investment
discretion.
You, the Note Issuers, the Trustee and the Warrant Agent are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
By
----------------------------------
Name:
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Purchase Ordinary Shares (the "Warrants") of Nakornthai Strip
Mill Public Company Limited (the "Company")
This Certificate relates to Warrants held in definitive
form by _______________ (the "Transferor").
The Transferor has requested the Warrant Agent by written order to
exchange or register the transfer of a Warrant or Warrants. In connection with
such request and in respect of each such Warrant, the Transferor does hereby
certify that the Transferor is familiar with the Warrant Agreement relating to
the above captioned Warrants and that the transfer of this Warrant does not
require registration under the Securities Act of 1933 (the "Securities Act")
because 3/:
|_| Such Warrant is being acquired for the Transferor's own account
without transfer.
|_| Such Warrant is being transferred to the Company.
|_| Such Warrant is being transferred pursuant to an effective
registration statement pursuant to the Securities Act.
|_| Such Warrant is being transferred to a qualified institutional buyer
(as defined in Rule 144A under the Securities Act), in reliance on
Rule 144A.
|_| Such Warrant is being transferred pursuant to an offshore
transaction in accordance with Rule 904 under the Securities Act.
|_| Such Warrant is being transferred in a transaction meeting the
requirements of Rule 144 under the Securities Act.
If such transfer is being made pursuant to an offshore transaction
in accordance with Rule 904 under the Securities Act, the Transferor further
certifies that:
(i) the offer of the Warrants was not made to a Person in the
United States;
(ii) at the time the buy order was originated, the transferee
was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the
United States;
(iii) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, as
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3 / Please check applicable box.
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applicable;
(iv) the transaction is not part of a plan or scheme by us to
evade the registration requirements of the Securities Act; and
(v) if applicable, the transfer has been made in accordance
with Rule 903(c)(3) or Rule 904(c)(1), as the case may be. Terms
used in this paragraph have the meanings set forth in Regulation S.
,
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[INSERT NAME OF TRANSFEROR]
by
Date:
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