Exhibit 4.2
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CONSECO, INC.
AND
WACHOVIA BANK, N.A.,
as Warrant Agent
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Series A Warrant Agreement
Dated as of September 10, 2003
Warrants to Purchase
Shares of Common Stock
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.............................................................................................1
Section 1.01 Definitions...............................................................................1
Section 1.02 Rules of Construction.....................................................................4
ARTICLE 2 APPOINTMENT OF WARRANT AGENT............................................................................4
Section 2.01 Appointment of Warrant Agent..............................................................4
ARTICLE 3 THE WARRANTS............................................................................................4
Section 3.01 Form and Dating; Legends..................................................................4
Section 3.02 Execution and Countersignature............................................................5
Section 3.03 Warrant Registrar and Countersignature Agent..............................................5
Section 3.04 Replacement Warrants......................................................................5
Section 3.05 Outstanding Warrants......................................................................5
Section 3.06 Temporary Warrants........................................................................6
Section 3.07 Cancellation..............................................................................6
Section 3.08 CUSIP and CINS Numbers....................................................................6
Section 3.09 Registration, Transfer and Exchange.......................................................7
ARTICLE 4 TERMS OF WARRANTS; EXERCISE OF WARRANTS.................................................................9
Section 4.01 Terms of Warrants; Exercise of Warrants...................................................9
ARTICLE 5 COVENANTS OF THE COMPANY...............................................................................11
Section 5.01 Maintenance of Office or Agency..........................................................11
Section 5.02 Payment of Taxes.........................................................................11
Section 5.03 Reports..................................................................................11
Section 5.04 Reservation of Warrant Shares............................................................12
Section 5.05 Obtaining Stock Exchange Listings........................................................12
ARTICLE 6 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE.....................................13
Section 6.01 Adjustment of Exercise Price and Number of Warrant Shares Issuable.......................13
Section 6.02 Fractional Interests.....................................................................16
Section 6.03 Notices to Warrant Holders...............................................................17
Section 6.04 No Rights as Stockholders................................................................18
ARTICLE 7 WARRANT AGENT..........................................................................................18
Section 7.01 Warrant Agent............................................................................18
Section 7.02 Compensation; Indemnity..................................................................19
Section 7.03 Individual Rights of Warrant Agent.......................................................20
Section 7.04 Replacement of Warrant Agent.............................................................20
Section 7.05 Successor Warrant Agent by Merger........................................................21
Section 7.06 Eligibility..............................................................................21
Section 7.07 Holder Lists.............................................................................21
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ARTICLE 8 MISCELLANEOUS..........................................................................................21
Section 8.01 Warrantholder Actions....................................................................21
Section 8.02 Notices..................................................................................22
Section 8.03 Supplements and Amendments...............................................................23
Section 8.04 Governing Law............................................................................24
Section 8.05 No Adverse Interpretation of Other Agreements............................................24
Section 8.06 Successors...............................................................................24
Section 8.07 Duplicate Originals......................................................................24
Section 8.08 Separability.............................................................................25
Section 8.09 Table of Contents and Headings...........................................................25
Section 8.10 Benefits of this Agreement...............................................................25
EXHIBITS
Exhibit A Face of Series A Warrant Subscription Certificate
Exhibit B Reverse of Series A Warrant Subscription Certificate
Exhibit C DTC Legend
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THIS SERIES A WARRANT AGREEMENT is dated as of September 10, 2003 between
Conseco, Inc., a Delaware Corporation (the "Company"), and Wachovia Bank, N.A.,
as warrant agent (the "Warrant Agent").
WHEREAS, concurrently with the execution hereof, the Company is emerging
from the protection of Chapter 11 of Title 11 of the United States Code pursuant
to that certain plan of reorganization dated March 18, 2003, as the same may be
amended, restated, supplemented or otherwise modified (the "Plan").
WHEREAS, pursuant to the terms of, and subject to the conditions contained
in, the Plan, the Company has agreed to issue 6,000,000 Series A Warrants (each,
a "Warrant" and collectively the "Warrants") entitling the holders thereof to
purchase shares of the common stock, par value $0.01 per share (the "Common
Stock"), of the Company (the Common Stock issuable on exercise of the Warrants
being referred to herein as the "Warrant Shares") at a price of $27.60 per share
of Common Stock (as adjusted from time to time hereunder, the "Exercise Price").
WHEREAS, the Company wishes the Warrant Agent to act on its behalf, and the
Warrant Agent is willing to act on behalf of the Company, in connection with the
issuance, exchange, transfer, substitution and exercise of the Warrants.
WHEREAS, the Company desires to enter into this Agreement to set forth the
terms and conditions of the Warrants and the rights and obligations of the
Company, the Warrant Agent and the registered holders of the Certificates
evidencing Warrants (the "Holders").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein and in the Plan, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Warrant Agent, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar or Countersignature Agent.
"Agent Member" means a member of, or a participant in, the Depositary.
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"Agreement" means this Warrant Agreement, as amended or supplemented from
time to time.
"Board of Directors" means the board of directors or comparable governing
body of the Company, or any committee thereof duly authorized to act on its
behalf.
"Board Resolution" means a resolution duly adopted by the Board of
Directors which is certified by the Secretary or an Assistant Secretary of the
Company and remains in full force and effect as of the date of its
certification.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Warrant Agent is located are authorized or required by law to
close.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock or partnership or
membership interests, whether common or preferred.
"Certificated Warrant" means a Warrant in registered individual form.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such in the preamble of this Agreement,
or any successor obligor under this Agreement.
"Corporate Trust Office" means the office of the Warrant Agent at which the
corporate trust business of the Warrant Agent is principally administered, which
at the Issue Date is located at 1525 West W. T. Harris Blvd., Charlotte, North
Carolina 28288-1153.
"Countersignature Agent" refers to a Person engaged to countersign the
Warrants in the stead of the Warrant Agent.
"Daily Price" means (A) if the shares of Common Stock then are listed and
traded on the New York Stock Exchange ("NYSE"), the closing price on such day as
reported on the NYSE Composite Transactions Tape; (B) if the shares of Common
Stock then are not listed and traded on the NYSE, the closing price on such day
as reported by the principal national securities exchange on which the shares
are listed and traded; (C) if the shares of Common Stock then are not listed and
traded on any such securities exchange, the last reported sale price on such day
on the National Market of the National Association of Securities Dealers, Inc.
Automated Quotation System ("Nasdaq"); or (D) if the shares of Common Stock then
are not traded on the Nasdaq National Market, the average of the highest
reported bid and lowest reported asked price on such day as reported by Nasdaq.
If on any determination date the shares of such class of Common Stock are not
quoted by any such organization, the Daily Price shall be the fair market value
of such shares on such determination date as reasonably determined in good faith
by the Board of Directors.
"Depositary" means the depositary of each Global Warrant, which will
initially be DTC.
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"DTC" means The Depository Trust Company, a New York corporation, and its
successors.
"DTC Legend" means the legend set forth in Exhibit C.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" has the meaning assigned to such term in the preamble of
this Agreement.
"Expiration Date" has the meaning assigned to such term in Section 4.01.
"Fundamental Change" means any merger, consolidation, amalgamation, sale or
other conveyance of all or substantially all of the assets of the Company with
or to any entity, any reclassification, recapitalization, reorganization,
compulsory share exchange, tender offer or exchange offer, stock split or
reverse stock split affecting the Capital Stock of the Company for which the
Warrants are exercisable.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"Global Warrant" means a Warrant in registered global form.
"Holder" or "Warrantholder" means the record owner of any Warrant.
"Issue Date" means the date on which the Warrants are originally issued
under the Agreement.
"Liquidation Event" means a liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary.
"Officer" means the chairman of the Board of Directors, the president or
chief executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, of the Company.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the Board of Directors, the president or chief
executive officer or any vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer or the secretary or any assistant
secretary of the Company.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company, reasonably satisfactory to the
Warrant Agent.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"Register" has the meaning assigned to such term in Section 3.09.
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"Registrar" means a Person engaged to maintain the Register.
"Warrant Agent" means the party named as such in the preamble of this
Agreement or any successor warrant agent under the Agreement pursuant to Article
7.
"Warrant Shares" has the meaning assigned to such term in the preamble of
this Agreement.
"Warrants" has the meaning assigned to such term in the Recitals to this
Agreement.
Section 1.02 Rules of Construction. Unless the context otherwise requires
or except as otherwise expressly provided,
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) "herein," "hereof" and other words of similar import refer
to the Agreement as a whole and not to any particular Section, Article or
other subdivision;
(iii) all references to Sections, subsections or Articles or
Exhibits refer to Sections, subsections or Articles or Exhibits of or to
the Agreement unless otherwise indicated; and
(iv) references to agreements or instruments, or to statutes or
regulations, are to such agreements or instruments, or statutes or
regulations, as amended from time to time (or to successor statutes and
regulations).
ARTICLE 2
APPOINTMENT OF WARRANT AGENT
Section 2.01 Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth in this Agreement and the Warrant Agent hereby accepts
such appointment.
ARTICLE 3
THE WARRANTS
Section 3.01 Form and Dating; Legends. The face of the Warrants will be
substantially in the form attached hereto as Exhibit A and the reverse of the
Warrants will be substantially in the form attached hereto as Exhibit B. The
terms and provisions contained in the form of the Warrants annexed as Exhibit A
and B constitute, and are hereby expressly made, a part of this Agreement. The
Warrants may have notations, legends or endorsements required by law, rules of
or agreements with national securities exchanges to which the Company is
subject, or usage. Each Warrant will be dated the date of its countersignature.
The Company and the Warrant Agent, by their execution and delivery of this
Agreement, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Warrant Certificate conflicts with
the express provisions of this Agreement, the provisions of this Agreement shall
govern and be controlling.
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Section 3.02 Execution and Countersignature. (a) An Officer shall execute
the Warrants for the Company by facsimile or manual signature in the name and on
behalf of the Company. If an Officer whose signature is on a Warrant no longer
holds that office at the time the Warrant is countersigned, the Warrant will
still be valid.
(b) A Warrant will not be valid until the Warrant Agent manually
countersigns the Warrant, with the signature conclusive evidence that the
Warrant has been countersigned under this Agreement. At any time and from time
to time after the execution and delivery of this Agreement, the Company may
deliver Warrants executed by the Company to the Warrant Agent for
countersignature. The Warrant Agent will countersign and deliver a number of
Warrants for original issue in an aggregate amount not to exceed the amount
stated in the preamble hereof after receipt by the Warrant Agent of an Officers'
Certificate specifying:
(i) the amount of Warrants to be countersigned and the date on
which the Warrants are to be countersigned, (ii) whether the Warrants are
to be issued as one or more Global Warrants or Certificated Warrants, and
(ii) other information the Company may determine to include or
the Warrant Agent may reasonably request.
Section 3.03 Warrant Registrar and Countersignature Agent. The Company may
appoint one or more Registrars, and the Warrant Agent may appoint a
Countersignature Agent, in which case each reference in the Agreement to the
Warrant Agent in respect of the obligations of the Warrant Agent to be performed
by the Countersignature Agent will be deemed to be references to the
Countersignature Agent. The Company may act as Registrar. In each case the
Company and the Warrant Agent will enter into an appropriate agreement with the
applicable Agent implementing the provisions of the Agreement relating to the
obligations of the Warrant Agent or Registrar to be performed by the applicable
Agent and the related rights. The Company initially appoints the Warrant Agent
as Registrar.
Section 3.04 Replacement Warrants. If a mutilated Warrant is surrendered to
the Warrant Agent or if a Holder delivers to the Company a sworn affidavit that
its Warrant has been lost, destroyed or wrongfully taken, the Company will issue
and the Warrant Agent will countersign a replacement Warrant. Every replacement
Warrant is an additional obligation of the Company and entitled to the benefits
of this Agreement. If required by the Warrant Agent or the Company, an indemnity
must be furnished that is sufficient in the judgment of both the Warrant Agent
and the Company to protect the Company and the Warrant Agent from any loss they
may suffer if a Warrant is replaced. The Company may charge the Holder for the
expenses of the Company and the Warrant Agent in replacing a Warrant.
Section 3.05 Outstanding Warrants. (a)Warrants outstanding at any time are
all Warrants that have been countersigned by the Warrant Agent except for:
(i) Warrants cancelled by the Warrant Agent or delivered to it
for cancellation;
(ii) Warrants exercised by the Holder thereof; and
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(iii) any Warrant which has been replaced pursuant to Section
3.04.
(b) A Warrant shall not cease to be outstanding because the Company or one
of its Affiliates holds the Warrant, provided that in determining whether the
Holders of the requisite number of the outstanding Warrants have given or taken
any request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, Warrants owned by the Company or any Affiliate of the Company
will be disregarded and deemed not to be outstanding (it being understood that
in determining whether the Warrant Agent is protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Warrants which the Warrant Agent knows to be so owned will be so
disregarded). Warrants so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Warrant Agent the pledgee's right so to act with respect to such Warrants and
that the pledgee is not the Company or any Affiliate of the Company.
Section 3.06 Temporary Warrants. Until definitive Warrants are ready for
delivery, the Company may prepare and the Warrant Agent or the Countersignature
Agent, as applicable, will countersign temporary Warrants. Temporary Warrants
will be substantially in the form of definitive Warrants but may have
insertions, substitutions, omissions and other variations determined to be
appropriate by the Officer executing the temporary Warrants, as evidenced by the
execution of the temporary Warrants. If temporary Warrants are issued, the
Company will cause definitive Warrants to be prepared without unreasonable
delay. After the preparation of definitive Warrants, the temporary Warrants will
be exchangeable for definitive Warrants upon surrender of the temporary Warrants
without charge to the Holder. Upon surrender for cancellation of any temporary
Warrants, the Company will execute and the Warrant Agent or the Countersignature
Agent, as applicable, will countersign and deliver in exchange therefor a like
amount of definitive Warrants. Until so exchanged, the temporary Warrants will
be entitled to the same benefits as definitive Warrants.
Section 3.07 Cancellation. The Company at any time may deliver to the
Warrant Agent for cancellation any Warrants previously countersigned and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Warrant Agent for cancellation any Warrants
previously countersigned hereunder which the Company has not issued and sold.
Any Registrar will forward to the Warrant Agent any Warrants surrendered to it
for transfer, exchange or exercise. The Warrant Agent (and no one else) will
cancel all Warrants surrendered for transfer, exchange, exercise or cancellation
and dispose of them in accordance with its normal procedures or the written
instructions of the Company. The Company may not issue new Warrants to replace
Warrants that have been exercised or delivered to the Warrant Agent for
cancellation. The Registrar shall provide the Company with a list of all
Warrants that have been cancelled.
Section 3.08 CUSIP and CINS Numbers. The Company in issuing the Warrants
may use "CUSIP" and "CINS" numbers, and the Warrant Agent will use CUSIP numbers
or CINS numbers in notices as a convenience to Holders, the notice to state that
no representation is made as to the correctness of such numbers either as
printed on the Warrants or as contained in any notice to any Holder. The Company
will promptly notify the Warrant Agent of any change in the CUSIP or CINS
numbers.
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Section 3.09 Registration, Transfer and Exchange. (a) The Warrants will be
issued in registered form only, and the Company shall cause the Warrant Agent to
maintain a register (the "Register") of the Warrants, for registering the record
ownership of the Warrants by the Holders and transfers and exchanges of the
Warrants.
(b) (i) Each Global Warrant will be registered in the name of the
Depositary or its nominee and, so long as DTC is serving as the Depositary
thereof, will bear the DTC Legend.
(ii) Each Global Warrant will be delivered to the Warrant Agent as
custodian for the Depositary. Transfers of a Global Warrant (but not a
beneficial interest therein) will be limited to transfers thereof in whole,
but not in part, to the Depositary, its successors or their respective
nominees, except (1) as set forth in Section 3.09(b)(iv) and (2) transfers
of portions thereof in the form of Certificated Warrants may be made upon
request of an Agent Member (for itself or on behalf of a beneficial owner)
by written notice given to the Warrant Agent by or on behalf of the
Depositary in accordance with customary procedures of the Depositary and in
compliance with this Section.
(iii) Agent Members will have no rights under the Agreement with
respect to any Global Warrant held on their behalf by the Depositary, and
the Depositary may be treated by the Company, the Warrant Agent and any
agent of the Company or the Warrant Agent as the absolute owner and Holder
of such Global Warrant for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and otherwise
authorize any Person (including any Agent Member and any Person that holds
a beneficial interest in a Global Warrant through an Agent Member) to take
any action which a Holder is entitled to take under the Warrant or the
Warrants, and nothing herein will impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise
of the rights of a holder of any security.
(iv) If (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for a Global Warrant and a successor
depositary is not appointed by the Company within 90 days of the notice or
(y) the Warrant Agent has received a request from the Depositary, the
Warrant Agent will promptly exchange all beneficial interest in the Global
Warrant for one or more Certificated Warrants having an equal number
registered in the name of the owner of each beneficial interest, as
identified to the Warrant Agent by the Depositary, and thereupon the Global
Warrant will be deemed canceled.
(c) Each Certificated Warrant will be registered in the name of the holder
thereof or its nominee.
(d) A Holder may transfer a Warrant (or a beneficial interest therein) to
another Person or exchange a Warrant (or a beneficial interest therein) for
another Warrant by presenting to the Warrant Agent a written request therefor
stating the name of the proposed transferee or requesting such an exchange,
accompanied by any document required by the Agreement. The Warrant Agent will
promptly register any transfer or exchange that meets the requirements of
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this Section by noting the same in the register maintained by the Warrant Agent
for the purpose; provided that no transfer or exchange will be effective until
it is registered in such register. Prior to the registration of any transfer,
the Company, the Warrant Agent and their agents will treat the Person in whose
name the Warrant is registered as the owner and Holder thereof for all purposes,
and will not be affected by notice to the contrary.
From time to time the Company will execute and the Warrant Agent or the
Countersignature Agent, as applicable, will countersign additional Warrants as
necessary in order to permit the registration of a transfer or exchange in
accordance with this Section. All Warrants issued upon transfer or exchange
shall be the duly authorized, executed and delivered Warrants of the Company
entitled to the benefits of the Agreement.
No service charge will be imposed in connection with any transfer or
exchange of any Warrant, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than a transfer tax or other similar governmental charge
payable upon exchange pursuant to Section 3.09(b)(iv)).
(e) (i) Global Warrant to Global Warrant. If a beneficial interest in a
Global Warrant is transferred or exchanged for a beneficial interest in another
Global Warrant, the Warrant Agent will (x) record a decrease in the amount of
the Global Warrant being transferred or exchanged equal to the amount of such
transfer or exchange and (y) record a like increase in the amount of the other
Global Warrant. Any beneficial interest in one Global Warrant that is
transferred to a Person who takes delivery in the form of an interest in another
Global Warrant, or exchanged for an interest in another Global Warrant, will,
upon transfer or exchange, 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 and exchange restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Warrant for
as long as it remains such an interest.
(ii) Global Warrant to Certificated Warrant. If a beneficial interest
in a Global Warrant is transferred or exchanged for a Certificated Warrant,
the Warrant Agent will (x) record a decrease in the number of such Global
Warrant equal to the number of such transfer or exchange and (y) deliver a
new Certificated Warrant to the transferee (in the case of a transfer) or
the owner of such beneficial interest (in the case of an exchange),
registered in the name of such transferee or owner, as applicable.
(iii) Certificated Warrant to Global Warrant. If a Certificated
Warrant is transferred or exchanged for a beneficial interest in a Global
Warrant, the Warrant Agent will (x) cancel such Certificated Warrant, (y)
record an increase in such Global Warrant equal to the number of Warrants
being transferred or exchanged and (z) in the event that such transfer or
exchange involves less than the entire amount of the canceled Certificated
Warrant, deliver to the Holder thereof one or more new Certificated
Warrants having an aggregate number of Warrants equal to the untransferred
or unexchanged portion of the canceled Certificated Warrant, registered in
the name of the Holder thereof.
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(f) Certificated Warrant to Certificated Warrant. If a Certificated Warrant
is transferred or exchanged for another Certificated Warrant, the Warrant Agent
will (x) cancel the Certificated Warrant being transferred or exchanged, (y)
deliver one or more new Certificated Warrants having a number equal to the
amount of Warrants being transferred or exchanged to the transferee (in the case
of a transfer) or the Holder of the canceled Certificated Warrant (in the case
of an exchange), registered in the name of such transferee or Holder, as
applicable, and (z) if such transfer or exchange involves less than the entire
amount of the canceled Certificated Warrant, deliver to the Holder thereof one
or more Certificated Warrants having an aggregate amount of Warrants equal to
the untransferred or unexchanged portion of the canceled Certificated Warrant,
registered in the name of the Holder thereof.
ARTICLE 4
TERMS OF WARRANTS; EXERCISE OF WARRANTS
Section 4.01 Terms of Warrants; Exercise of Warrants.
(a) Each Warrant not exercised prior to 5:00 p.m., New York City time, on
September 10, 2008 (the "Expiration Date") shall become void and all rights
thereunder and all rights in respect thereof under this agreement shall cease as
of such time.
(b) Subject to the terms of this Agreement, the Warrants shall be
exercisable, at the election of the Holders thereof, either in full or from time
to time in part during the period commencing at the opening of business on the
Issue Date and until 5:00 p.m., New York City time on the Expiration Date, and
shall entitle any Holder thereof to receive from the Company the number of fully
paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to receive on exercise of such Warrants and payment of the Exercise
Price in cash, by wire transfer or by certified or official check payable to the
order of the Company, in each case, equal to the Exercise Price for such Warrant
Shares or by cashless exercise as set forth in subsection (c) below. No
adjustments as to dividends will be made upon exercise of the Warrants.
(c) Subject to the terms of this Agreement, and in the sole discretion of
the Company, a Holder may elect to convert Warrants into shares of Common Stock,
in which event the Company will issue to the Holder the number of shares of
Common Stock equal to the result obtained by (i) subtracting B from A, (ii)
dividing the result by A as set forth in the following equation, and (iii)
multiplying the result by C:
X = (A-B) x C where:
----
A
X = the number of shares of Common Stock issuable upon exercise pursuant to
this subsection (c).
A = the Daily Price on the day immediately preceding the date on which the
Holder delivers written notice to the Company pursuant to subsection
(d)below.
B = the Exercise Price.
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C = the number of shares of Common Stock as to which the Warrants are then
being exercised.
If the foregoing calculation results in a negative number, then no shares
of Common Stock shall be issued upon exercise pursuant to this subsection (c).
(d) In order to exercise all or any of the Warrants, the Holder thereof
must deliver to the Warrant Agent at its Corporate Trust Office (i) such
Warrants, (ii) the form of election to purchase on the reverse thereof duly
filled in and signed, which signature shall be medallion guaranteed by an
institution which is a member of a Securities Transfer Association recognized
signature guarantee program, and (iii) payment to the Warrant Agent for the
account of the Company of the then-current Exercise Price (in the manner set
forth in subsections (b) or (c) above) for the number of Warrant Shares in
respect of which the Warrants are being exercised.
(e) Subject to the provisions of Section 6.01 hereof and upon the Holder's
compliance with the provisions set forth in subsection (d) above, the Company
shall cause the Warrant Agent to credit such aggregate number of whole Warrant
Shares to which the Holder shall be entitled to the Holder's or its designee's
balance account with DTC; provided, however, if the Common Stock is not DTC
eligible, the Company shall deliver or cause to be delivered with all reasonable
dispatch, 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
whole Warrant Shares issuable upon the exercise of such Warrants or other
securities or property to which such Holder is entitled.
(f) No fractional Warrant Shares are to be issued upon any exercise of a
Warrant, but rather cash in lieu of fractional shares shall be delivered to the
Holder as provided in Section 6.02 hereof.
(g) Upon the Holder's compliance with the provisions set forth in
subsection (d) above, such Holder shall be deemed for all corporate purposes to
have become the holder of the Warrant Shares with respect to which the Warrant
has been exercised.
(h) If less than all the Warrants represented by a Warrant Certificate are
exercised, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants which were not
exercised shall be executed by the Company and delivered to the Warrant Agent
and the Warrant Agent or the Countersignature Agent, as applicable, shall
countersign the new Warrant Certificate, registered in such name or names as may
be directed in writing by the Holder, and shall deliver the new Warrant
Certificate to the Person or Persons entitled to receive the same.
(i) All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall then
be disposed of by the Warrant Agent in a manner satisfactory to the Company. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all monies received by the Warrant
Agent for the purchase of the Warrant Shares through the exercise of such
Warrants.
(j) The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders during
normal business hours at its
10
office. The Company shall supply the Warrant Agent from time to time with such
numbers of copies of this Agreement as the Warrant Agent may reasonably request.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.01 Maintenance of Office or Agency. The Company will maintain in
the Borough of Manhattan, the City of New York, an office or agency where
Warrants may be surrendered for registration of transfer or exchange or for
presentation for exercise. The Company hereby initially designates the Corporate
Trust Office of the Warrant Agent as such office of the Company. The Company
will give prompt written notice to the Warrant Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Warrant Agent with the address thereof, such presentations, surrenders, notices
and demands may be made or served to the Warrant Agent.
The Company may also from time to time designate one or more other offices
or agencies where the Warrants may be surrendered or presented for any of such
purposes and may from time to time rescind such designations. The Company will
give prompt written notice to the Warrant Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 5.02 Payment of Taxes. The Company will pay all documentary, stamp
or similar issue or transfer taxes and other governmental charges, if any, in
respect of the issuance or delivery of Warrant Shares upon the exercise of
Warrants; provided that the Company shall not be required to pay any tax, taxes
or charges which may be payable in respect of any transfer involved in the issue
of any Warrants or any Warrant Shares in a name other than that of the
registered holder of a Warrant surrendered upon exercise, and the Company shall
not be required to issue or deliver such Warrant Shares unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such taxes or charges or shall have established to the
satisfaction of the Company that such taxes or charges have been paid.
Section 5.03 Reports. (a) Whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
must provide the Warrant Agent within the time periods specified in those
sections for filers that are not "accelerated filers" and the regulations
thereunder with:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to annual information only, a report thereon
by the Company's certified independent accountants, and
(ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports.
11
In addition, whether or not required by the Commission, the Company will,
after the effectiveness of a shelf registration statement if the Commission will
accept the filing, file a copy of all of the information and reports referred to
in clauses (i) and (ii) with the Commission for public availability within the
time periods for filers that are not "accelerated filers" specified in the
Commission's rules and regulations.
Section 5.04 Reservation of Warrant Shares.
(a) The Company will at all times reserve and keep available for issuance
and delivery, free and clear of all liens, security interests, charges and other
encumbrances or restrictions on sale and free and clear of all preemptive
rights, such number of shares of its authorized but unissued Common Stock or
other securities of the Company from time to time issuable upon exercise of the
Warrants as will be sufficient to permit the exercise in full of all outstanding
Warrants.
(b) The Company or, if appointed, the transfer agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any securities of
the Company issuable upon the exercise of any of the rights of purchase
aforesaid will be irrevocably authorized and directed at all times to reserve
such number of authorized securities as shall be required for such purpose. The
Company will keep a copy of this Agreement on file with the Transfer Agent and
with every subsequent transfer agent for any of the Company's securities
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from
time to time from such Transfer Agent the certificates for securities of the
Company required to honor outstanding Warrants upon exercise thereof in
accordance with the terms of this Agreement. The Company will supply such
Transfer Agent with duly executed certificates for such purposes and will
provide or otherwise make available any cash which may be payable as provided in
Section 6.02 hereof. The Company will furnish such Transfer Agent a copy of all
notices of adjustments, and certificates related thereto, transmitted to each
holder pursuant to Section 6.03 hereof.
(c) Before taking any action which would cause an adjustment pursuant to
Section 6.01 hereof to reduce the Exercise Price below the then par value (if
any) of the Warrant Shares, the Company will take any corporate action which
may, in the opinion of its counsel (which may be counsel employed by the
Company), be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
(d) The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issuance thereof.
Section 5.05 Obtaining Stock Exchange Listings. To the extent not already
listed, upon the written request of Holders holding Warrants for the purchase of
at least ten percent (10%) of the initial Warrant Shares issuable hereunder, the
Company will from time to time use reasonable best efforts to take all actions
which may be necessary so that the Warrants will be listed on the principal
securities exchanges, automated quotation systems or other markets within the
United States of America, if any, on which shares of Common Stock are then
listed; provided, however, that the Company shall not be required to seek to
list the Warrants if the
12
Warrants do not then satisfy the listing requirements for such principal
securities exchanges, automated quotation systems or other markets. The Company
will from time to time use reasonable best efforts to take all action which may
be necessary so that the Warrant Shares, immediately upon their issuance upon
the exercise of Warrants, will be listed on the principal securities exchanges,
automated quotation systems or other markets within the United States of
America, if any, on which other shares of Common Stock are then listed.
ARTICLE 6
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE
Section 6.01 Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Article 6. For purposes of this
Article 6, "Common Stock" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount (it being
understood that Common Stock shall not include the Class A Senior Cumulative
Convertible Exchangeable Preferred Stock of the Company but shall include stock
appreciation rights and phantom stock rights).
(a) Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock, (ii) subdivides its outstanding shares of
Common Stock into a greater number of shares, (iii) combines its outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by
reclassification of its Common Stock any shares of its Capital Stock, then the
Exercise Price in effect immediately prior to such action shall be
proportionately adjusted so that the holder of any Warrant thereafter exercised
may receive upon exercise of such Warrant the aggregate number and kind of
shares of Capital Stock of the Company which he would have owned immediately
following such action if such Warrant had been exercised immediately prior to
such action.
The adjustment under this Section 6.01(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification. If, after an adjustment, a holder of a Warrant upon
exercise of it may receive shares of two or more classes of Capital Stock of the
Company, the Company shall determine, in good faith, the allocation of the
adjusted Exercise Price between the classes of Capital Stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
Capital Stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section 6. Such adjustment shall be
made successively whenever any event listed above shall occur.
(b) Adjustment for Certain Derivative Securities.
13
If the Company distributes any rights, options, warrants or other
securities exercisable for or convertible into shares of its Common Stock
(collectively, "Derivative Securities") to all holders of its Common Stock
entitling them to purchase shares of Common Stock at a price per share less than
the Daily Price per share on the record date applicable to such distribution,
the Exercise Price shall be adjusted in accordance with the formula:
O + NxP
-------
E' = E x M
-----------------
O + N
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares of Common Stock outstanding on the record
date.
N = the number of additional shares of Common Stock issued or
issuable pursuant to such Derivative Securities.
P = the price per unit, if any, for the Derivative Securities plus
the price per share required to be paid for the additional shares
upon exercise or conversion of any Derivative Securities.
M = the Daily Price per share of Common Stock on the record date.
The adjustment shall be made successively whenever any such Derivative
Securities are issued and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such Derivative
Securities. If at the end of the period during which such Derivative Securities
are exercisable or convertible, not all such Derivative Securities shall have
been exercised or converted, the Exercise Price shall be immediately readjusted
to what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) When De Minimis Adjustment may be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 6.01 shall be
made to the nearest cent or to the nearest 1/10,000th of a share, as the case
may be, it being understood that no such rounding shall be made under subsection
(i).
(d) When no Adjustment Required.
14
No adjustment need be made for a transaction referred to in Section 6.01(a)
or (b) hereof if Warrantholders are to participate (without being required to
exercise their Warrants) in the transaction on a basis and with notice that the
Board of Directors reasonably and in good faith determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction. No adjustment need be made for (i) rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends
or interest, or (ii) a change in the par value or no par value of the Common
Stock. To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue on the cash.
(e) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 8.02 hereof.
(f) Notice of Certain Transactions.
If (i) the Company takes any action that would require an adjustment in the
Exercise Price pursuant to Section 6.01(a) or (b) hereof and if the Company does
not arrange for Warrantholders to participate pursuant to Section 6.01(d)
hereof, (ii) the Company takes any action that would require a supplemental
Warrant Agreement pursuant to Section 6.01(g) hereof or (iii) there is a
Liquidation Event, then the Company shall mail to Warrantholders a notice
stating the proposed record date for a dividend or distribution or the proposed
effective date of a subdivision, combination, reclassification, consolidation,
merger, transfer, lease, liquidation, dissolution or wind-up. The Company shall
mail the notice at least 15 days before such date. Failure to mail the notice or
any defect in it shall not affect the validity of the transaction.
(g) Reorganization of the Company.
After the date hereof, if the Company consolidates or merges with or into,
or transfers or leases all or substantially all its assets to, any Person, upon
consummation of such transaction the Warrants shall automatically become
exercisable for the kind and amount of securities, cash or other assets which
the Holder would have owned immediately after the consolidation, merger,
transfer or lease if the Holder had exercised the Warrant immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Company, or the Person to which such sale or conveyance
shall have been made, shall enter into a supplemental Warrant Agreement so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Section
6.01(g). The successor company shall mail to Holders a notice describing the
supplemental Warrant Agreement. If the issuer of securities deliverable upon
exercise of Warrants under the supplemental Warrant Agreement is an affiliate of
the formed, surviving, transferee or lessee corporation, that issuer shall join
in the supplemental Warrant Agreement. If this Section 6.01(g) applies, Section
6.01(a) or (b) hereof shall not apply.
(h) When Issuance or Payment may be Deferred.
15
In any case in which this Section 6.01 shall require that an adjustment in
the Exercise Price be made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of such event (i) issuing to
the holder of any Warrant exercised after such record date the Warrant Shares
and other Capital Stock of the Company, if any, issuable upon such exercise over
and above the Warrant Shares and other Capital Stock of the Company, if any,
issuable upon such exercise on the basis of the Exercise Price and (ii) paying
to such holder any amount in cash in lieu of a fractional share pursuant to
Section 6.02 hereof; provided that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's right to
receive such additional Warrant Shares, other Capital Stock and cash upon the
occurrence of the event requiring such adjustment.
(i) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 6.01,
each Warrant outstanding prior to the making of the adjustment in the Exercise
Price shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of shares of Common Stock (calculated to the
nearest hundredth) obtained from the following formula:
N x E
N' = -----------
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously issuable upon exercise of
a Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(j) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number or kind
of shares purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 6.02 Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares or scrip representing fractional shares on the
exercise of Warrants. If more than one Warrant shall be presented for exercise
in full at the same time by the same holder, the number of full Warrant Shares
which shall be issuable upon the exercise thereof shall be computed on the basis
of the aggregate number of Warrant Shares purchasable on exercise of the
Warrants so presented. If any fraction of a Warrant Share would, except for the
provisions of this Section 6.02, be issuable on the exercise of any Warrants (or
specified portion thereof), the
16
Company shall pay an amount in cash equal to the Daily Price per Warrant Share,
as determined on the day immediately preceding the date the Warrant is presented
for exercise, multiplied by such fraction, computed to the nearest whole U.S.
cent.
Section 6.03 Notices to Warrant Holders. (a) Upon any adjustment of the
Exercise Price pursuant to Section 6.01 hereof, the Company shall promptly
thereafter (i) cause to be filed with the Warrant Agent an Officer's Certificate
setting forth the Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based and setting forth the number of Warrant Shares (or
portion thereof) issuable after such adjustment in the Exercise Price, upon
exercise of a Warrant and payment of the adjusted Exercise Price, which
certificate shall be conclusive evidence of the correctness of the matters set
forth therein, and (ii) cause to be given to each of the Holders, at the address
of such Holder appearing in the Registrar, written notice of such adjustments by
first-class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 6.03.
(b) In case:
(i) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants;
(ii) the Company shall authorize the distribution to all holders
of shares of Common Stock of evidences of its indebtedness or assets;
(iii) of any Fundamental Change (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination);
(iv) of any Liquidation Event; or
(v) the Company proposes to take any action which would require
an adjustment of the Exercise Price pursuant to Section 6.01 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the Holders, at least 20 days (or 10 days in any case
specified in clauses (i) or (ii) above) prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (x)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, (y) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (z) the date on which any such
Fundamental Change or Liquidation Event is expected that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such Fundamental Change or
Liquidation Event. The failure to give the notice required by this Section 6.03
or any defect therein shall not affect the legality
17
or validity of any distribution, right, option, warrant, Fundamental Change,
Liquidation Event, or the vote upon any action.
Section 6.04 No Rights as Stockholders. Nothing contained in this Agreement
or the Warrants shall be construed as conferring upon the holders of Warrants
the right to vote or to consent or to receive notice as stockholders in respect
of the meetings of stockholders or the election of directors of the Company or
any other matter, or any rights whatsoever, including the right to receive
dividends, as stockholders of the Company.
ARTICLE 7
WARRANT AGENT
Section 7.01 Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Warrants shall be taken as
statements of the Company and the Warrant Agent assumes no responsibility for
the correctness of any of the same except such as describe the Warrant Agent or
action taken or to be taken by it. The Warrant Agent assumes no responsibility
with respect to the distribution of the Warrants except as herein otherwise
provided.
(b) The Warrant Agent has no duty to determine when an adjustment under
Article 6 should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under Section 8.03 hereof are correct. The Warrant Agent makes
no representation as to the validity or value of any securities or assets issued
upon exercise of Warrants.
(c) The Warrant Agent shall not be accountable with respect to the validity
or value or the kind or amount of any Warrant Shares or of any securities or
property which may at any time be issued or delivered upon the exercise of any
Warrant or with respect to whether any such Warrant Shares or other securities
will, when issued, be validly issued and fully paid and nonassessable, and makes
no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants.
(e) In the absence of bad faith on its part, the Warrant Agent may rely,
and will be protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Warrant Agent need not investigate any fact
or matter stated in the document, but, in the case of any document which is
specifically required to be furnished to the Warrant Agent pursuant to any
provision hereof, the Warrant Agent shall examine the document to determine
whether it conforms to the requirements of the Agreement (but need not confirm
or investigate the accuracy of mathematical calculations or other facts
18
stated therein). The Warrant Agent, in its discretion, may make further inquiry
or investigation into such facts or matters as it sees fit.
(f) The Warrant Agent may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(g) The Warrant Agent will be under no obligation to exercise any of the
rights or powers vested in it by the Agreement at the request or direction of
any of the Holders, unless such Holders have offered to the Warrant Agent
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding relative thereto, and
any such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent and any recovery of judgment shall be for
the ratable benefit of the Holders of the Warrants, as their respective rights
or interests may appear.
(h) The Warrant Agent may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel will be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(i) No provision of the Agreement will require the Warrant Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder, or in the exercise of its rights or powers,
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(j) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. No provision
of the Agreement shall be construed to relieve the Warrant Agent from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct.
Section 7.02 Compensation; Indemnity. (a) The Company will pay the Warrant
Agent compensation as agreed upon in writing for its services. The Company will
reimburse the Warrant Agent upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Warrant Agent,
including the reasonable compensation and expenses of the Warrant Agent's agents
and counsel.
(b) The Company will indemnify the Warrant Agent for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence,
willful misconduct or bad faith on its part arising out of or in connection with
the acceptance or administration of the Agreement and its duties under the
Agreement and the Warrants, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under the Agreement and the Warrants, except to the extent
any such loss, liability or expense may be attributable to its negligence, bad
faith or wilfull misconduct. The Warrant Agent shall notify the Company promptly
of any claim for which it may seek indemnity. Failure
19
by the Warrant Agent to so notify the Company shall not relieve the Company of
its obligations hereunder. At the Warrant Agent's sole discretion, the Company
shall defend the claim and the Warrant Agent shall cooperate in the defense at
the Company's expense. The Warrant Agent may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
Section 7.03 Individual Rights of Warrant Agent. The Warrant Agent, and any
stockholder, director, officer or employee of it, may buy, sell or deal in any
of the Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not 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. An Agent may do the same with like rights.
Section 7.04 Replacement of Warrant Agent. (a) The Warrant Agent
(i) may resign at any time by written notice to the Company,
(ii) may be removed at any time by the Holders of a majority of
the outstanding Warrants by written notice to the Warrant Agent,
(iii) shall, if no longer eligible under Section 7.06, be subject
to removal upon the request of any Holder to the Company
(iv) shall be removed by the Company if: (A) the Warrant Agent is
no longer eligible under Section 7.06; (B) the Warrant Agent is adjudged a
bankrupt or an insolvent; (C) a receiver or other public officer takes
charge of the Warrant Agent or its property; or (D) the Warrant Agent
becomes incapable of acting.
A resignation or removal of the Warrant Agent and appointment of a successor
Warrant Agent will become effective only upon the successor Warrant Agent's
acceptance of appointment as provided in this Section.
(b) If the Warrant Agent has been removed by the Holders, Holders of a
majority of the Warrants may appoint a successor Warrant Agent with the consent
of the Company. Otherwise, if the Warrant Agent resigns or is removed, or if a
vacancy exists in the office of Warrant Agent for any reason, the Company will
promptly appoint a successor Warrant Agent. If the successor Warrant Agent does
not deliver its written acceptance within 30 days after the retiring Warrant
Agent resigns or is removed, the retiring Warrant Agent, the Company or the
Holders of a majority of the outstanding Warrants may petition any court of
competent jurisdiction for the appointment of a successor Warrant Agent.
(c) Upon delivery by the successor Warrant Agent of a written acceptance of
its appointment to the retiring Warrant Agent and to the Company, (i) the
retiring Warrant Agent will transfer all property held by it as Warrant Agent to
the successor Warrant Agent, (ii) the resignation or removal of the retiring
Warrant Agent will become effective, and (iii) the
20
successor Warrant Agent will have all the rights, powers and duties of the
Warrant Agent under the Warrant Agent. Upon request of any successor Warrant
Agent, the Company will execute any and all instruments for fully and vesting in
and confirming to the successor Warrant Agent all such rights, powers and
trusts. The Company will give notice of any resignation and any removal of the
Warrant Agent and each appointment of a successor Warrant Agent to all Holders,
and include in the notice the name of the successor Warrant Agent and the
address of its Corporate Trust Office.
(d) Notwithstanding replacement of the Warrant Agent pursuant to this
Section, the Company's obligations under Section 7.02 will continue for the
benefit of the retiring Warrant Agent.
Section 7.05 Successor Warrant Agent by Merger. (a) If the Warrant Agent
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act will be the successor Warrant Agent
with the same effect as if the successor Warrant Agent had been named as the
Warrant Agent in the Agreement.
(b) If, at the time such successor to the Warrant Agent shall succeed to
the agency created by this Agreement, any of the Warrants have been
countersigned but not delivered, the successor Warrant Agent may adopt the
countersignature of the original Warrant Agent; and if any of the Warrants shall
not have been countersigned, the successor Warrant Agent may countersign such
Warrants, and in all such cases such Warrants shall have the full force and
effect provided in the Warrants and in this Agreement.
Section 7.06 Eligibility. The Agreement must always have a Warrant Agent
that has a combined capital and surplus of at least $50,000,000 as set forth in
its most recent published annual report of condition and satisfies the
eligibility requirements set forth in Section 310(a) of the Trust Indenture Act
of 1939.
Section 7.07 Holder Lists. The Warrant Agent shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders. If the Warrant Agent is not the Warrant
Registrar, the Company shall promptly furnish to the Warrant Agent at such times
as the Warrant Agent may request in writing, a list in such form and as of such
date as the Warrant Agent may reasonably require of the names and addresses of
the Holders.
ARTICLE 8
MISCELLANEOUS
Section 8.01 Warrantholder Actions. (a) Any request, demand, authorization,
direction, notice, consent to amendment, supplement or waiver or other action
provided by this Agreement to be given or taken by a Holder (an "act") may be
evidenced by an instrument signed by the Holder delivered to the Warrant Agent.
The fact and date of the execution of the instrument, or the authority of the
Person executing it, may be proved in any manner that the Warrant Agent deems
sufficient.
21
(b) The Warrant Agent may make reasonable rules for action by or at a
meeting of Holders, which will be binding on all the Holders.
(c) Any act by the Holder of any Warrant binds that Holder and every
subsequent Holder of a Warrant certificate that evidences the same Warrant of
the acting Holder, even if no notation thereof appears on the Warrant
certificate. Subject to subsection (d) below, a Holder may revoke an act as to
its Warrants, but only if the Warrant Agent receives the notice of revocation
before the date the amendment or waiver or other consequence of the act becomes
effective.
(d) The Company may, but is not obligated to, fix a record date for the
purpose of determining the Holders entitled to act with respect to any amendment
or waiver or in any other regard. If a record date is fixed, those Persons that
were Holders at such record date and only those Persons will be entitled to act,
or to revoke any previous act, whether or not those Persons continue to be
Holders after the record date. No act will be valid or effective for more than
90 days after the record date.
Section 8.02 Notices. (a) Any notice or communication to the Company will
be deemed given if in writing (i) when delivered in person or (ii) five days
after mailing when mailed by first class mail, or (iii) when sent by facsimile
transmission, with transmission confirmed. Any notice to the Warrant Agent will
be effective only upon receipt. In each case the notice or communication should
be addressed as follows:
if to the Company:
CONSECO, INC.
11825 North Pennsylvania St.
Carmel, IN 46032
ATTN: General Counsel
FAX: (317) 817-6327
if to the Warrant Agent:
WACHOVIA BANK, N.A.
Equity Services Group
1525 West W.T. Harris Blvd.
Charlotte, NC 28288-1153
ATTN: Myron Gray
FAX: (704) 590-7598
The Company or the Warrant Agent by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with respect to published
notices, any notice or communication to a Holder will be deemed given when
mailed to the Holder at its address as it appears on the Register by first class
mail or, as to any Global Warrant registered in the name of DTC or its nominee,
as agreed by the Company, the Warrant Agent and DTC.
22
Copies of any notice or communication to a Holder, if given by the Company, will
be mailed to the Warrant Agent at the same time. Defect in mailing a notice or
communication to any particular Holder will not affect its sufficiency with
respect to other Holders.
(c) Where the Agreement provides for notice, the notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and the waiver will be the equivalent of the notice. Waivers of
notice by Holders must be filed with the Warrant Agent, but such filing is not a
condition precedent to the validity of any action taken in reliance upon such
waivers.
Section 8.03 Supplements and Amendments. (a) The Company and the Warrant
Agent may amend or supplement the Agreement or the Warrants without notice to or
the consent of any Holder
(i) to cure any ambiguity, defect or inconsistency in the
Agreement or the Warrants;
(ii) to comply with Section 6.01(f);
(iii) to evidence and provide for the acceptance of an
appointment hereunder by a successor Warrant Agent; or
(iv) to make any other change that does not adversely affect the
rights of any Holder.
(b) Except as otherwise provided in subsections (a) above or (c) below, the
Company and the Warrant Agent may amend the Agreement and the Warrants with the
written consent of the Holders of a majority of the outstanding Warrants, and
the Holders of a majority of the outstanding Warrants by written notice to the
Warrant Agent may waive future compliance by the Company with any provision of
the Agreement or the Warrants.
(c) Notwithstanding the provisions of subsection (b) above, without the
consent of each Holder affected, an amendment or waiver may not
(i) increase the Exercise Price;
(ii) decrease the number of Warrant Shares or other securities or
property issuable upon exercise of the Warrants except, in each case, for
adjustments provided for in the Agreement; or
(iii) designate an earlier Expiration Date.
(d) It is not necessary for Holders to approve the particular form of any
proposed amendment, supplement or waiver, but is sufficient if their consent
approves the substance thereof.
23
(e) An amendment, supplement or waiver under this Section will become
effective on receipt by the Warrant Agent of written consents from the Holders
of the requisite percentage of the outstanding Warrants. After an amendment,
supplement or waiver under this Section becomes effective, the Company will send
to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to send such notice, or any
defect therein, will not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.
(f) After an amendment, supplement or waiver becomes effective, it will
bind every Holder unless it is of the type requiring the consent of each Holder
affected. If the amendment, supplement or waiver is of the type requiring the
consent of each Holder affected, the amendment, supplement or waiver will bind
each Holder that has consented to it and every subsequent Holder of a Warrant
with respect to which consent was granted.
(g) If an amendment, supplement or waiver changes the terms of a Warrant,
the Warrant Agent may require the Holder to deliver it to the Warrant Agent so
that the Warrant Agent may place an appropriate notation of the changed terms on
the Warrant and return it to the Holder, or exchange it for a new Warrant that
reflects the changed terms. The Warrant Agent may also place an appropriate
notation on any Warrant thereafter countersigned. However, the effectiveness of
the amendment, supplement or waiver is not affected by any failure to annotate
or exchange Warrants in this fashion.
(h) The Warrant Agent is entitled to receive, and will be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this section is
authorized or permitted by the Agreement. If the Warrant Agent has received such
an Opinion of Counsel, it shall sign the amendment, supplement or waiver so long
as the same does not adversely affect the rights of the Warrant Agent. The
Warrant Agent may, but is not obligated to, execute any amendment, supplement or
waiver that affects the Warrant Agent's own rights, duties or immunities under
the Agreement.
Section 8.04 Governing Law. The Agreement and the Warrants shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 8.05 No Adverse Interpretation of Other Agreements. The Agreement
may not be used to interpret another agreement of the Company, and no such
agreement may be used to interpret the Agreement.
Section 8.06 Successors. All agreements of the Company in the Agreement and
the Warrants will bind its successors. All agreements of the Warrant Agent in
the Agreement will bind its successors.
Section 8.07 Duplicate Originals. The parties may sign any number of copies
of the Agreement. Each signed copy shall be an original, but all of them
together represent the same agreement.
24
Section 8.08 Separability. In case any provision in the Agreement or in the
Warrants is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 8.09 Table of Contents and Headings. The Table of Contents and
headings of the Articles, Sections and subsections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part of
the Agreement and in no way modify or restrict any of the terms and provisions
of the Agreement.
Section 8.10 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person or corporation other than the Company, the
Warrant Agent and the registered holders of Warrants any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
holders of Warrants.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CONSECO, INC.
By:/s/Daniel J. Murphy
----------------------------------
Name: Daniel J. Murpny
Title: Senior Vice President and
Treasurer
WACHOVIA BANK, N.A., as Warrant Agent
By:/s/Myron O. Gray
---------------------------------
Name: Myron O. Gray
Title: Vice President
[SIGNATURE PAGE TO WARRANT AGREEMENT]
EXHIBIT A
[Face of Series A Warrant Subscription Certificate]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO 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 A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT ARE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE WARRANT
AGREEMENT.
No. Warrants to Subscribe for
---------- ------
shares of Common Stock
------
CUSIP No.
---------
Series A Warrant Subscription Certificate
This Warrant Subscription Certificate certifies that Cede & Co., or its
registered assigns, is the registered holder of Series A Warrants (the
"Warrants") to purchase Common Stock, par value $0.01 per share (the "Common
Stock"), of Conseco, Inc., a Delaware corporation. Each Warrant entitles the
registered holder upon exercise at any time from 9:00 a.m. on the Issue Date
until 5:00 p.m. New York City Time on September 10, 2008 (the "Expiration
Date"), to receive from the Company fully paid and nonassessable shares of
Common Stock (the "Warrant Shares") at an initial exercise price (the "Exercise
Price") of $27.60 per share payable upon surrender of this Warrant Certificate
at the office or agency of the Warrant Agent, subject to the conditions set
forth herein and in the Warrant Agreement referred to on the reverse hereof. The
Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed below manually or by facsimile by its duly authorized officer.
Dated: September , 2003
---
CONSECO, INC.
By:
----------------------------------
Name: William J. Shea
Title: President
Countersigned:
WACHOVIA BANK, N.A.,
as Warrant Agent
By:
--------------------------------
Authorized Signatory
EXHIBIT B
CONSECO, INC.
[Reverse of Series A Warrant Subscription Certificate
1. Warrant Agreement.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued or to be issued pursuant to a Warrant
Agreement dated as of September 10, 2003 (the "Warrant Agreement"), between the
Company and Wachovia Bank, N.A., as warrant agent (the "Warrant Agent"), which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Warrant Agent,
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. To the extent
permitted by law, in the event of an inconsistency or conflict between the terms
of this Warrant and the Warrant Agreement, the terms of the Warrant Agreement
will prevail.
2. Exercise.
Warrants may be exercised at any time on or after 9:00 a.m on the Issue
Date and on or before 5:00 p.m. New York City time on the Expiration Date. In
order to exercise all or any of the Warrants represented by this Warrant
Certificate, the holder must deliver to the Warrant Agent at its Corporate Trust
Office set forth in the Warrant Agreement this Warrant Certificate and the form
of election to purchase on the reverse hereof duly completed, which signature
shall be medallion guaranteed by an institution which is a member of a
Securities Transfer Association recognized signature guarantee program, and upon
payment to the Warrant Agent for the account of the Company of the Exercise
Price in the manner set forth in the Warrant Agreement for the number of Warrant
Shares in respect of which such Warrants are then exercised.
No Warrant may be exercised after 5:00 p.m., New York City time on the
Expiration Date, and to the extent not exercised by such time the Warrants shall
become void.
3. Adjustments.
The Warrant Agreement provides that, upon the occurrence of certain events,
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. The Warrant Agreement also provides that the number of
shares of Common Stock issuable upon the exercise of each Warrant shall be
adjusted in certain events.
4. No Fractional Shares.
No fractions of a share of Common Stock will be issued upon the exercise of
any Warrant, but the Company will pay the cash value thereof determined as
provided in the Warrant Agreement.
5. Registered Form; Transfer and Exchange.
The Warrants are in registered form. Warrant Certificates, when surrendered
at the office of the Warrant Agent by the registered holder thereof in person or
by legal representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge (except as specified in the
Warrant Agreement), for another Warrant Certificate or Warrant Certificates of
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
6. Countersignature. This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent or the Countersignature Agent, as applicable,
as such term is used in the Warrant Agreement.
7. Governing Law.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York
8. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).
A copy of the Warrant Agreement may be obtained by the holder hereof upon
written request to the Company.
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
(1) The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____________ shares of
Common Stock and herewith tenders payment for such shares to the order of
CONSECO, INC., in the amount of $__________ in accordance with the terms hereof.
OR
The undersigned hereby irrevocably elects to convert this Warrant into
___________ shares of Common Stock (before giving effect to the cashless
exercise provisions) and herewith agrees to make payment therefor pursuant to
the cashless exercise provisions of the Warrant Agreement, all on the terms and
the conditions specified in the Warrant Certificate and the Warrant Agreement.
(2) The undersigned requests that the Company deliver
______________________ shares of Common Stock in accordance with the terms of
the Warrant Agreement.
-------------------------------
Signature
Date:
-------------------------------
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL WARRANTS
The following exchanges of a part of this Global Warrant have been made:
Number of Warrants
Amount of decrease Amount of increase in in this Global Signature of
in number of number of Warrants in Warrant following authorized officer
Date of Exchange Warrants in this this Global Warrant such decrease or of Warrant Agent
Global Warrant increase
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto _____________________________ (the "Assignee")
(Please type or print block letters)
__________________________________________________________________ (Please print
or typewrite name and address including zip code of assignee) the within Warrant
and all rights thereunder, hereby irrevocably constituting and appointing
__________________________________________________________________ attorney to
transfer said Warrant on the books of the Company with full power of
substitution in the premises.
Date:
---------------------
--------------------------
Seller
By:
------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee:(1)
---------------------------
- ---------------------------
1 Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Association
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
EXHIBIT C
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO 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 A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT ARE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE WARRANT
AGREEMENT.