Exhibit 4.20
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KEYSPAN CORPORATION
and
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Stock Warrant Agent
FORM OF
STOCK WARRANT AGREEMENT*
Dated as of ______________, ____
FOR
UP TO ___ STOCK WARRANTS
EXPIRING ___________, _____
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* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
Table of Contents
ARTICLE I
ISSUANCE OF STOCK WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
Section 1.1 Issuance of Stock Warrants.........................................................................1
Section 1.2 Form and Execution of Warrant Certificates.........................................................2
Section 1.3 Issuance and Delivery of Warrant Certificates......................................................3
Section 1.4 Temporary Warrant Certificates.....................................................................3
Section 1.5 Payment of Certain Taxes...........................................................................3
Section 1.6 "Holder"...........................................................................................3
ARTICLE II
DURATION AND EXERCISE OF STOCK WARRANTS
Section 2.1 Duration of Stock Warrants.........................................................................4
Section 2.2 Exercise of Stock Warrants.........................................................................4
Section 2.3 Stock Warrant Adjustments..........................................................................5
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF STOCK WARRANTS
Section 3.1 No Rights as Holder of Underlying [Preferred/Common] Shares Conferred by
Stock Warrants or Warrant Certificates..............................................5
Section 3.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates..........................................6
Section 3.3 Holders of Stock Warrants May Enforce Rights.......................................................6
Section 3.4 Merger, Consolidation, Sale, Transfer or Conveyance................................................6
ARTICLE IV
EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section 4.1 Stock Warrant Register; Exchange and Transfer of Stock Warrants....................................7
Section 4.2 Treatment of Holders of Warrant Certificates.......................................................8
Section 4.3 Cancellation of Warrant Certificates...............................................................8
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent......................................................................................8
Section 5.2 Conditions of Warrant Agent's Obligations..........................................................8
Section 5.3 Resignation and Removal; Appointment of Successor.................................................10
Section 5.4 Compliance With Applicable Laws...................................................................11
Section 5.5 Office............................................................................................11
ARTICLE VI
MISCELLANEOUS
Section 6.1 Supplements and Amendments........................................................................12
Section 6.2 Notices and Demands to the Company and Warrant Agent..............................................12
Section 6.3 Addresses for Notices.............................................................................12
Section 6.4 Governing Law.....................................................................................12
Section 6.5 Governmental Approvals............................................................................12
Section 6.6 Persons Having Rights Under Stock Warrant Agreement...............................................13
Section 6.7 Delivery of Prospectus/Prospectus Supplement......................................................13
Section 6.8 Headings..........................................................................................13
Section 6.9 Counterparts......................................................................................13
Section 6.10 Inspection of Agreement..........................................................................13
Section 6.11 Consolidation, Merger or Amalgamation of the Company and Conveyance or
Transfer Permitted Subject to Certain Conditions.................................13
Section 6.12 Rights and Duties of Successor Corporation.......................................................13
This STOCK WARRANT AGREEMENT, dated as of __________________,
between KeySpan Corporation, a New York Corporation (the "Company"), and
_______________, a ________________ organized and existing under the laws of
________________ (the "Warrant Agent").
WHEREAS, the Company proposes to sell certificates evidencing
one or more warrants (the " Stock Warrants" or, individually, a " Stock
Warrant") representing the right to purchase [common stock, par value $0.01 per
share, of the Company (the "Common Shares")] [shares of a series of preferred
stock, par value $0.01 per share, of the Company (the "Preferred Shares")], such
warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates";
WHEREAS, the Company has duly authorized the execution and
delivery of this Stock Warrant Agreement to provide for the issuance of Stock
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as hereinafter provided; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act in connection
with the issuance of the Warrant Certificates and other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF STOCK WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
Section 1.1 Issuance of Stock Warrants. Stock Warrants may be issued from
time to time. Prior to the issuance of any Stock Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Stock Warrants;
(b) the offering price of such Stock Warrants, if any;
(c) the designation, number and terms (including any subordination and
conversion provisions) of any Preferred Shares that are purchasable upon
exercise of such Stock Warrants;]
(d) the time or times at which, or period or periods during which, such Stock
Warrants may be exercised and the final date on which such Stock Warrants
may be exercised (the "Expiration Date");
(e) the number of [Preferred/Common] Shares that may be purchased upon exercise
of such Stock Warrants; the price, or the manner of determining the price
(the "Warrant Price"), at which such [Preferred/Common] Shares may be
purchased upon exercise of the Stock Warrants; and any minimum or maximum
number of such Stock Warrants that are exercisable at any one time;
(f) if applicable, any anti-dilution provisions of such Stock Warrants;
(g) the terms of any right to redeem or call such Stock Warrants;
(h) the terms of any right of the Company to accelerate the Expiration Date of
the Stock Warrants upon the occurrence of certain events; and
(i) any other terms of such Stock Warrants not inconsistent with the provisions
of this Agreement.
Section 1.2 Form and Execution of Warrant Certificates. (a) The Stock
Warrants shall be evidenced by the Warrant Certificates, which shall be in
registered form and substantially in such form or forms as shall be established
by or pursuant to a Board Resolution. Each Warrant Certificate, whenever issued,
shall be dated the date it is countersigned by the Warrant Agent and may have
such letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Stock Warrants may be listed,
or to conform to usage, as the officer of the Company executing the same may
approve (such officer's execution thereof to be conclusive evidence of such
approval). Each Warrant Certificate shall evidence one or more Stock Warrants.
(b) The Warrant Certificates shall be signed in the name and on behalf of
the Company by its Chairman of the Board of Directors, its President, an
Executive Vice President, any Vice President, the Treasurer or any Assistant
Treasurer and by its Secretary or any Assistant Secretary. Such signatures may
be manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Warrant
Certificates, subject to the Company's Bye-Laws as in effect from time to time.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(c) No Warrant Certificate shall be valid for any purpose, and no Stock
Warrant evidenced thereby shall be deemed issued or exercisable, until such
Warrant Certificate has been countersigned by the manual or facsimile signature
of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence that the
Warrant Certificate so countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificate so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officer of the Company, although at the date of the execution of this Agreement
such person was not such an officer.
Section 1.3 Issuance and Delivery of Warrant Certificates. At any time and
from time to time after the execution and delivery of this Agreement, the
Company may deliver Warrant Certificates executed by the Company to the Warrant
Agent for countersignature. Subject to the provisions of this Section 1.3, the
Warrant Agent shall thereupon countersign and deliver such Warrant Certificates
to or upon the written request of the Company. Subsequent to the original
issuance of a Stock Warrant Certificate evidencing Stock Warrants, the Warrant
Agent shall countersign a new Warrant Certificate evidencing such Stock Warrants
only if such Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Warrant Certificates evidencing such Stock
Warrants or in connection with their transfer, as hereinafter provided.
Section 1.4 Temporary Warrant Certificates. Pending the preparation of
definitive Warrant Certificates, the Company may execute, and upon the order of
the Company the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Warrant Certificates may determine, as evidenced by his execution
of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent or ______________, without charge to the Holder, as defined in
Section 1.6 hereof. Upon surrender for cancellation of any one or more temporary
Warrant Certificates, the Company shall execute and the Warrant Agent shall
countersign and deliver in exchange therefor definitive Warrant Certificates
representing the same aggregate number of Stock Warrants. Until so exchanged,
the temporary Warrant Certificates shall in all respects be entitled to the same
benefits under this Agreement as definitive Warrant Certificates.
Section 1.5 Payment of Certain Taxes. The Company will pay all stamp and
other duties, if any, to which this Agreement or the original issuance of the
Stock Warrants or Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
Section 1.6 "Holder". The term "Holder" or "Holders" as used herein with
reference to a Warrant Certificate shall mean the person or persons in whose
name such Warrant Certificate shall then be registered as set forth in the
Warrant Register to be maintained by the Warrant Agent pursuant to Section 4.1
for that purpose.
ARTICLE II
DURATION AND EXERCISE OF STOCK WARRANTS
Section 2.1 Duration of Stock Warrants. Each Stock Warrant may be exercised
at the time or times, or during the period or periods, provided by or pursuant
to the Board Resolution relating thereto and specified in the Warrant
Certificate evidencing such Stock Warrant. Each Stock Warrant not exercised at
or before 5:00 P.M., New York City time, on its Expiration Date shall become
void, and all rights of the Holder of such Stock Warrant thereunder and under
this Agreement shall cease, provided that the Company reserves the right to, and
may, in its sole discretion, at any time and from time to time, at such time or
times as the Company so determines, extend the Expiration Date of the Stock
Warrants for such periods of time as it chooses. Whenever the Expiration Date of
the Stock Warrants is so extended, the Company shall at least [20] days prior to
the then Expiration Date cause to be mailed to the Warrant Agent and the
registered Holders of the Stock Warrants in accordance with the provisions of
Section 6.3 hereof a notice stating that the Expiration Date has been extended
and setting forth the new Expiration Date. No adjustment shall be made for any
dividends on any [Preferred/Common] Shares issuable upon exercise of any Stock
Warrant.
Section 2.2 Exercise of Stock Warrants. (a) The Holder of a Stock Warrant
shall have the right, at its option, to exercise such Stock Warrant and, subject
to subsection (f) of this Section 2.2, purchase the number of [Preferred/Common]
Shares provided for therein at the time or times or during the period or periods
referred to in Section 2.1 and specified in the Warrant Certificate evidencing
such Stock Warrant. No fewer than the minimum number of Stock Warrants as set
forth in the Warrant Certificate may be exercised by or on behalf of any one
Holder at any one time. Except as may be provided in a Warrant Certificate, a
Stock Warrant may be exercised by completing the form of election to purchase
set forth on the reverse side of the Warrant Certificate, by duly executing the
same, and by delivering the same, together with payment in full of the Warrant
Price, in lawful money of the United States of America, in cash or by certified
or official bank check or by bank wire transfer, to the Warrant Agent. Except as
may be provided in a Warrant Certificate, the date on which such Warrant
Certificate and payment are received by the Warrant Agent as aforesaid shall be
deemed to be the date on which the Stock Warrant is exercised and the relevant
[Preferred/Common] Shares are issued.
(b) Upon the exercise of a Stock Warrant, the Company shall issue to or
upon the order of the Holder of such Warrant, the [Preferred/Common] Shares to
which such Holder is entitled, registered, in the case of [Preferred/Common]
Shares in registered form, in such name or names as may be directed by such
Holder.
(c) If fewer than all of the Stock Warrants evidenced by a Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Stock Warrants remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by it in payment of
the Warrant Price for Stock Warrants in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Warrant Price for
Warrants is received of the amount so deposited in its account. The Warrant
Agent shall promptly confirm such telephone advice in writing to the Company.
(e) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Stock Warrants of each title exercised
as provided herein, (ii) the instructions of each Holder of such Stock Warrants
with respect to delivery of the [Preferred/Common] Shares issued upon exercise
of such Stock Warrants to which such Holder is entitled upon such exercise, and
(iii) such other information as the Company shall reasonably require. Such
notice may be given by telephone to be promptly confirmed in writing.
(f) The Company will pay all documentary stamp taxes attributable to the
initial issuance of Stock Warrants or to the issuance of [Preferred/Common]
Shares to the registered Holder of such Stock Warrants upon exercise thereof;
provided, however, that the Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the [Preferred/Common]
Shares; and in the event that any such transfer is involved, the Company shall
not be required to issue any [Preferred/Common] Shares (and the Holder's
purchase of the [Preferred/Common] Shares issued upon the exercise of such
Holder's Stock Warrant shall not be deemed to have been consummated) until such
tax or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
Section 2.3 Stock Warrant Adjustments. The terms and conditions, if any, on
which the exercise price of and/or the number of [Preferred/Common] Shares
covered by a Stock Warrant are subject to adjustments will be set forth in the
Warrant Certificate and in the Prospectus Supplement relating thereto. Such
terms may include the adjustment mechanism for the exercise price of, and the
number of [Preferred/Common] Shares covered by, a Stock Warrant, the events
requiring such adjustments, the events upon which the Company may, in lieu of
making such adjustments, make proper provisions so that the Holder, upon
exercise of such Holder's Stock Warrant, would be treated as if such Holder had
been a holder of the [Preferred/Common] Shares received upon such exercise,
prior to the occurrence of such events, and provisions affecting exercise of the
Stock Warrants in the event of certain events affecting the [Preferred/Common]
Shares.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF STOCK WARRANTS
Section 3.1 No Rights as Holder of Underlying [Preferred/Common] Shares
Conferred by Stock Warrants or Warrant Certificates. No Stock Warrants or
Warrant Certificates shall entitle the Holder to any of the rights, preferences
and privileges of a holder of the underlying [Preferred/Common] Shares,
including without limitation, any dividend, voting, redemption, conversion,
exchange and liquidation rights.
Section 3.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and of indemnity (other than in connection with any
mutilated Warrant Certificates surrendered to the Warrant Agent for
cancellation) reasonably satisfactory to them, the Company shall execute, and
Warrant Agent shall countersign and deliver, in exchange for or in lieu of each
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate evidencing a like number of Stock Warrants of the same title. Upon
the issuance of a new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection therewith and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent a contractual obligation of the Company, whether or not such
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates, duly executed and
delivered hereunder, evidencing Stock Warrants of the same title. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of lost, stolen,
destroyed or mutilated Warrant Certificates.
Section 3.3 Holders of Stock Warrants May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any Holder may, without the consent of
the Warrant Agent, enforce and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect of,
its right to exercise his Stock Warrants as provided in the Stock Warrants and
in this Agreement.
Section 3.4 Merger, Consolidation, Sale, Transfer or Conveyance. (a) In
case any of the following shall occur while any Stock Warrants are outstanding:
(i) any reclassification or change of the outstanding [Preferred/Common] Shares;
or (ii) any consolidation or merger to which the Company is party (other than a
consolidation or a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change in, the outstanding
[Preferred/Common] Shares issuable upon exercise of the Stock Warrants); or
(iii) any sale, conveyance or lease to another corporation of the property of
the Company as an entirety or substantially as an entirety; then the Company, or
such successor or purchasing corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or otherwise so that the
Holders of the Stock Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such Stock Warrants, to purchase the kind and
amount of capital shares and other securities and property receivable upon such
a reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of [Preferred/Common] Shares
issuable upon exercise of such Stock Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Stock Warrants, and the Company as the predecessor corporation may thereupon or
at any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any of all of the Stock Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver [Preferred/Common] Shares in its own name, in
fulfillment of its obligations to deliver Shares upon exercise of the Stock
Warrants. All the Stock Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Stock Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Stock Warrants had been issued at the date of the execution hereof. In
any case of any such reclassification, change, consolidation, merger,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Stock Warrants thereafter to be issued as may be
appropriate.
(b) If reasonably requested by the Stock Warrant Agent, the Stock Warrant
Agent shall receive a written opinion of legal counsel as conclusive evidence
that any such merger, consolidation, sale, transfer, conveyance or other
disposition of substantially all of the assets of the Company complies with the
provisions of this Section 3.4.
ARTICLE IV
EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section 4.1 Stock Warrant Register; Exchange and Transfer of Stock
Warrants. The Warrant Agent shall maintain, at its corporate trust office or at
_________, a register (the "Warrant Register") in which, upon the issuance of
Stock Warrants and, subject to such reasonable regulations as the Warrant Agent
may prescribe, it shall register Warrant Certificates and exchanges and
transfers thereof. The Warrant Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Warrant Agent or at _________ Warrant Certificates
may be exchanged for one or more other Warrant Certificates evidencing the same
aggregate number of Stock Warrants of the same title, or may be transferred in
whole or in part. A transfer shall be registered upon surrender of a Warrant
Certificate to the Warrant Agent at its corporate trust office or at __________
for transfer, properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Warrant Agent, duly signed by the registered holder or holders
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by (a) a bank or trust
company, (b) a broker or dealer that is a member of the National Association of
Securities Dealers, Inc. (the "NASD") or (c) a member of a national securities
exchange. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee. Whenever a Warrant Certificate is surrendered
for exchange or transfer, the Warrant Agent shall countersign and deliver to the
person or persons entitled thereto one or more Warrant Certificates duly
executed by the Company, as so requested. The Stock Warrant Agent shall not be
required to effect any exchange or transfer which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Stock Warrant. All Warrant
Certificates issued upon any exchange or transfer of a Warrant Certificate shall
be the valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer of Stock
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.2(f) hereof.
Section 4.2 Treatment of Holders of Warrant Certificates. The Company and
the Warrant Agent may treat the registered Holder of a Warrant Certificate as
the absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Stock Warrants evidenced thereby, any
notice to the contrary notwithstanding.
Section 4.3 Cancellation of Warrant Certificates. In the event that the
Company shall purchase, redeem or otherwise acquire any Stock Warrants after the
issuance thereof, the Warrant Certificate or Warrant Certificates evidencing
such Stock Warrants shall thereupon be delivered to the Warrant Agent and be
cancelled by it. The Warrant Agent shall also cancel any Warrant Certificate
(including any Warrant Certificate) delivered to it for exercise, in whole or in
part, or for exchange or transfer. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time, or disposed of
in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent. The Company hereby appoints __________________
as Warrant Agent of the Company in respect of the Stock Warrants upon the terms
and subject to the conditions set forth herein, and __________________ hereby
accepts such appointment. The Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Warrant Certificates and hereby, and
such further powers and authority acceptable to it to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 5.2 Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations set forth herein upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees to promptly pay
the Warrant Agent the compensation set forth in Exhibit A hereto and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or
expense (including the reasonable costs and expenses of defending against any
claim of liability) incurred without negligence or bad faith on the part of the
Warrant Agent arising out of or in connection with its appointment, status or
service as Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement and in connection
with any Warrant Certificate, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
for or with any Holder.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it,
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.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be genuine and to have
been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of its duties
hereunder the Warrant Agent shall reasonably deem it necessary that any fact or
matter be proved or established by the Company prior to taking, suffering or
omitting any action hereunder, the Warrant Agent may (unless other evidence in
respect thereof be herein specifically prescribed), in the absence of bad faith
on its part, rely upon a certificate signed by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the President, an
Executive Vice President, the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company (an "Officer's Certificate") delivered
by the Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Warrant Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorney or agent or for any loss to the Company resulting from such
neglect or misconduct; provided, however, that reasonable care shall have been
exercised in the selection and continued employment of such attorneys and
agents.
(g) Certain Transactions. The Warrant Agent, and any officer, director or
employee thereof, may become the owner of, or acquire any interest in, any Stock
Warrant, with the same rights that he, she or it would have if it were not the
Warrant Agent, and, to the extent permitted by applicable law, he, she or it may
engage or be interested in any financial or other transaction with the Company
and may serve on, or as depository, trustee or agent for, any committee or body
of holders of [Preferred/Common] Shares or other obligations of the Company as
if it were not the Warrant Agent.
(h) No Liability For Interest. The Warrant Agent shall not be liable for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates, except as otherwise
agreed with the Company.
(i) No Liability For Invalidity. The Warrant Agent shall incur no liability
with respect to the validity of this Agreement (except as to the due
execution hereof by the Warrant Agent) or any Warrant Certificate (except
as to the countersignature thereof by the Warrant Agent).
(j) No Responsibility For Company Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations contained herein
(except as to such statements or recitals as describe the Warrant Agent or
action taken or to be taken by it) or in any Warrant Certificate (except as to
the Warrant Agent's countersignature on such Warrant Certificate), all of which
recitals and representations are made solely by the Company.
(k) No Implied Obligations. The Warrant Agent shall be obligated to perform
only such duties as are specifically set forth herein, and no other duties or
obligations shall be implied. The Warrant Agent shall not be under any
obligation to take any action hereunder that may subject it to any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any Warrant
Certificate countersigned by the Warrant Agent and delivered by it to the
Company pursuant to this Agreement or for the application by the Company of the
proceeds of the issuance or exercise of Stock 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 any Warrant
Certificate or in case of the receipt of any written demand from a Holder with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.2 hereof, to
make any demand upon the Company.
Section 5.3 Resignation and Removal; Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders of the Stock Warrants, that there
shall at all times be a Warrant Agent hereunder until all the Stock Warrants are
no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice to the Company, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than [90] days
after the date on which such notice if given unless the Company agrees to accept
a shorter notice. 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.
Notwithstanding the provisions of this Section 5.3(b), such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a banking institution
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Warrant Agent a combined capital and surplus (as set forth in its
most recent published report of financial condition) of at least
[$50,000,000])and the acceptance of such appointment by such successor Warrant
Agent. In the event a successor Warrant Agent has not been appointed and has not
accepted its duties within [90] days of the Warrant Agent's notice of
resignation, the Warrant Agent may apply to any court of competent jurisdiction
for the designation of a successor Warrant Agent. The obligations of the Company
under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended or under any other applicable federal or state bankruptcy law or similar
law, or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
for relief against it under the provisions of Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of rehabilitation, conservation 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
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named 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 moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all of the
assets and business of the Warrant Agent, provided that such Corporation shall
be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 5.4 Compliance With Applicable Laws. The Warrant Agent agrees to
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Warrant Agreement and in
connection with the Stock Warrants, including (but not limited to) the
provisions of United States federal income tax laws regarding information
reporting and backup withholding. The Warrant Agent expressly assumes all
liability for its failure to comply with any such laws imposing obligations on
it, including (but not limited to) any liability for failure to comply with any
applicable provisions of United States federal income tax laws regarding
information reporting and backup withholding.
Section 5.5 Office. The Company will maintain an office or agency where
Warrant Certificates may be presented for exchange, transfer or exercise. The
office initially designated for this purpose shall be the corporate trust office
of the Warrant Agent at ________________.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Supplements and Amendments. (a) The Company and Warrant Agent
may from time to time supplement or amend this Agreement without the approval or
consent of any Holder in order to cure any ambiguity, to correct or supplement
any provision contained herein that may be defective or inconsistent with any
other provisions herein, or to make any other provision in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect the interests of the
Holders. Every Holder of Stock Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after the
effectiveness of any supplement or amendment that affects the interest of the
Holders, the Company shall give notice thereof, as provided in Section 6.3
hereof, to the Holders affected thereby, setting forth in general terms the
substance of such supplement or amendment.
(b) The Company and the Warrant Agent may modify or amend this Agreement
and the Warrant Certificates with the consent of the Holders of not fewer than a
majority in number of the underlying [Preferred/Common] Shares affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that shortens the period of time during which the
Stock Warrants may be exercised, or otherwise materially and adversely affects
the exercise rights of the Holders or reduces the percentage of Holders of
outstanding Stock Warrants the consent of which is required for modification or
amendment of this Agreement or the Stock Warrants, may be made without the
consent of each Holder affected thereby.
Section 6.2 Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by any
Holder pursuant to the provisions of the Warrant Certificates, the Warrant Agent
shall promptly forward such notice or demand to the Company.
Section 6.3 Addresses for Notices. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to [name of
Warrant Agent, _______________, Attention: Corporate Trust Department;] any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to KeySpan Corporation, One MetroTech Center,
Brooklyn, New York 11202, attention of ___________________; or such other
addresses as shall be specified in writing by the Warrant Agent or by the
Company, as the case may be.
Section 6.4 Governing Law. This Agreement and the Stock Warrants shall be
governed by the laws of the State of New York.
Section 6.5 Governmental Approvals. The Company will from time to time use
all reasonable best efforts to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and the national
securities exchange on which the Stock Warrants may be listed or authorized for
trading from time to time and will make all filings under the federal and state
securities laws (including, without limitation, the maintenance of the
effectiveness of the registration statement in respect of the [Preferred/Common]
Shares under the Securities Act of 1933), as may be or become requisite in
connection with the issuance, sale, trading, transfer or delivery of the Stock
Warrants and Warrant Certificates, the exercise of the Stock Warrants and the
issuance, sale and delivery of the underlying [Preferred/Common] Shares issued
upon the exercise of the Stock Warrants.
Section 6.6 Persons Having Rights Under Stock Warrant Agreement. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the Holders any right, remedy or claim under or by reason of this Agreement or
of any covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this Agreement
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and of the Holders of Warrant
Certificates.
Section 6.7 Delivery of Prospectus/Prospectus Supplement. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus, prospectus
supplement or prospectuses relating to the [Preferred/Common] Shares deliverable
upon exercise of any outstanding Stock Warrants (each a "Prospectus"), and prior
to or concurrent with the delivery of the [Preferred/Common] Shares issued upon
the exercise thereof, a copy of the Prospectus/Prospectus supplement relating to
such [Preferred/ Common] Shares.
Section 6.8 Headings. The descriptive headings of the several Articles and
Sections and the Table of Contents of this Agreement are for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.9 Counterparts. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
Section 6.10 Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent, for inspection by the Holders of Stock Warrants.
Section 6.11 Consolidation, Merger or Amalgamation of the Company and
Conveyance or Transfer Permitted Subject to Certain Conditions. [If Preferred
Shares underlie Stock Warrants--To the extent permitted in the Certificate of
Designations, the Company may consolidate with or merge or amalgamate into
another corporation or other entity, or convey or transfer all or substantially
all of its properties and assets to any other corporation or other entity.]
Section 6.12 Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, conveyance or transfer and upon any assumption of
the duties and obligations of the Company by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein, and the Company shall be
relieved of any further obligation under this Agreement and the Stock Warrants.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Preferred Shares underlying the Stock Warrants and issuable pursuant to the
terms hereof. All such Preferred Shares so issued shall in all respects have the
same legal rank and benefit as the Preferred Shares theretofore or thereafter
issued in accordance with the terms of this Agreement and the Certificate of
Designations.
In case of any such consolidation, merger, conveyance or
transfer, such changes in phraseology and form (but not in substance) may be
made in the Preferred Shares thereafter to be issued as may be appropriate.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
KEYSPAN CORPORATION,
Seal
Attest:
By: ______________________________
Name and Title
- ------------------------------
NAME AND TITLE:
[STOCK WARRANT AGENT],
Seal
Attest:
By: ______________________________
Name and Title
- ------------------------------
NAME AND TITLE:
Exhibit A
to Stock Warrant Agreement
dated as of ____________, 200_
[Compensation of Warrant Agent]