As filed with the Securities and Exchange Commission on March 1, 2000
Registration No. 333-30928
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
Donaldson, Lufkin & Jenrette, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-1898818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-----------------------
277 Park Avenue
New York, New York 10172
(212) 892-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------------
Michael A. Boyd
Senior Vice President and General Counsel
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
(212) 892-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
Copies to:
Deanna L. Kirkpatrick
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
-----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. |_|________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|__________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended (the "Securities Act") or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to Donaldson, Lufkin & Jenrette's Registration Statement
on Form S-3 (File No. 333-30928) is being filed solely for the purpose of
filing certain exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
See index to exhibits at E-1.
2
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Donaldson, Lufkin &
Jenrette, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
amendment to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, New York, on
the 1st day of March, 2000.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Joe L. Roby
-------------------------------------
Joe L. Roby
President and Chief Executive Officer
Pursuant to the Requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities indicated as of the 1st day of March, 2000.
Signature Title
--------- -----
*
- --------------------------- President,-Chief Executive Officer
Joe L. Roby and Director
*
- --------------------------- Chairman-of the Board and
John S. Chalsty Director
*
- --------------------------- Executive-Vice President, Chief
Anthony F. Daddino Financial Officer and Director
*
- --------------------------- Director
David DeLucia
*
- --------------------------- Managing-Director and Director
Hamilton E. James
*
- --------------------------- Director
Stuart M. Robbins
*
- --------------------------- Senior-Vice President and Chief
Edward J. Resch Accounting Officer
- --------------------------- Director
Henri de Castries
*
- --------------------------- Director
Denis Duverne
*
- --------------------------- Director
Jane Mack Gould
*
- --------------------------- Director
Louis Harris
*
- --------------------------- Director
Michael Hegarty
3
<PAGE>
- ---------------------------
Henri G. Hottinguer Director
*
- ---------------------------
W. Edwin Jarmain Director
*
- ---------------------------
Francis Jungers Director
*
- ---------------------------
Edward D. Miller Director
*
- ---------------------------
W.J. Sanders, III Director
*
- ---------------------------
Stanley B. Tulin Director
*
- ---------------------------
John C. West Director
* By: /s/ Marjorie S. White
- ---------------------------
Attorney-in-Fact
4
<PAGE>
<TABLE>
EXHIBIT INDEX
Exhibit Description
------- -----------
<S> <C>
1.1 Form of Underwriting Agreement relating to the Debt Securities*..........................
1.2 Form of Underwriting Agreement relating to the Preferred Stock*..........................
1.3 Form of Underwriting Agreement relating to the Warrants..................................
3.1 Amended and Restated Certificate of Incorporation of Registrant**........................
3.2 By-laws of the Registrant***.............................................................
4.1 Senior Debt Indenture between the Company and The Chase Manhattan Bank, as
Trustee.............................................................................
4.2 Form of Senior Debt Securities*..........................................................
4.3 Form of Subordinated Debt Indenture between the Company and The Chase Manhattan
Bank, as Trustee*...................................................................
4.4 Form of Subordinated Debt Securities*....................................................
4.5.1 Form of Debt Warrant Agreement for Warrants sold attached to Debt Securities.............
4.5.2 Form of Debt Warrant Agreement for Warrants sold alone...................................
4.5.3 Form of Preferred Stock Warrant Agreement for Warrants sold alone or attached to
Preferred Stock.......................................................................
4.5.4 Form of Universal Warrant Agreement......................................................
5.1 Opinion of Davis Polk & Wardwell.........................................................
12.1 Computation of ratio of earnings to fixed charges****....................................
12.2 Computation of ratio of earnings to combined fixed charges and preferred stock
dividends****.......................................................................
23.1 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)...............................
23.2 Consent of KPMG LLP......................................................................
24.1 Powers of Attorney****...................................................................
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Trustee, under the Indentures****..........................
- -------------------
* Incorporated by reference to the corresponding exhibit to Donaldson, Lufkin & Jenrette, Inc.'s
Registration Statement on Form S-3 (Registration No. 333-40925).
** Incorporated by reference to the corresponding exhibit to Donaldson, Lufkin & Jenrette, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998.
*** Incorporated by reference to the corresponding exhibit to Donaldson, Lufkin & Jenrette's
Registration Statement on Form S-3 (Registration No. 333-53499).
**** Previously filed.
E-1
</TABLE>
EXHIBIT 1.3
---------------
DONALDSON, LUFKIN & JENRETTE, INC.
WARRANTS
UNDERWRITING AGREEMENT
[Date]
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the several Underwriters
named in Schedule I hereto
(the "Representatives")
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell _________ [title of warrants] (the
"Securities") to the several underwriters named in Schedule hereto (the
"Underwriters"). The Securities are to be issued pursuant to the provisions of
a Warrant Agreement (the "Warrant Agreement") dated as of _____, 2000 between
the Company and ________________, as Warrant Agent. [The debt securities
underlying the Securities (the "Underlying Debt Securities") are to be issued
pursuant to the terms of an Indenture to be dated as of ________________ (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"1)].
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 2 [Date]
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3, including a
prospectus, relating to the Securities [and the Underlying Debt Securities1]
[and the shares of the Company's preferred stock $0.01 par value, underlying
the Securities (the "Underlying Preferred Stock")2]. The registration
statement, as amended at the time it became effective, including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Act, is hereinafter
referred to as the "Registration Statement"; and the prospectus in the form
first used to confirm sales of Securities is hereinafter referred to as the
"Prospectus" (including, in the case of all references to the Registration
Statement or the Prospectus documents incorporated therein by reference). If
the Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Act registering
additional Securities (a "Rule 462(b) Registration Statement"), then, unless
otherwise specified, any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement. The terms
"supplement" and "amendment" or "amend" as used in this Agreement with respect
to the Registration Statement or the Prospectus shall include all documents
subsequently filed by the company with the commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
number of Securities set forth opposite the name of such Underwriter in
Schedule I hereto at a price per Security of $_____ (the "Purchase Price").
SECTION 3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Securities shall be made at 9:00 A.M., New York City time, on
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 3 [Date]
__________ , 200_ (the "Closing Date") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Securities
may be varied by agreement between you and the Company.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time,
on the business day prior to the Closing Date. Certificates in definitive form
evidencing the Securities will be delivered to you on the Closing Date with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment to the Company of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in
New York City.
[Delivery on the Closing Date of any Securities in bearer form shall
be effected only by delivery of a single permanent global debt warrant (the
"Global Debt Warrant") evidencing such Securities to a common depositary for
Morgan Guaranty Trust Company of New York, Brussels office or its successor, as
operator of the Euroclear System ("Euroclear"), and for Clearstream Banking SA
("Clearstream") for credit to the respective accounts of each Underwriter or to
such other accounts as such Underwriter may direct at Euroclear or Clearstream.
Any Global Debt Warrant shall be delivered to you not later than the Closing
Date, against payment of funds to the Company in the net amount due to the
Company for such Securities or Global Debt Warrant by the method and in the
form set forth herein. Securities in bearer form shall be evidenced only by a
Global Debt Warrant until their expiration.1]
SECTION 5. Agreement of the Company. The Company agrees with you: (a)
To advise you promptly and, if requested by you, to confirm such advice in
writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, when the Rule 462(b) Registration Statement
has become effective and (v) of the happening of any event during the period
referred to in Section 5(d) below which makes any statement of a material fact
made in the Registration Statement or the
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 4 [Date]
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(b) To furnish ___ signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
and each Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits but including documents incorporated therein by reference, as you may
reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and,
during such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Securities by you, and to use its best efforts to
cause any such amendment to the Registration Statement to become promptly
effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 5 [Date]
order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will not
in the light of the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Securities
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Prospectus, the Registration Statement, any preliminary
prospectus or the offering or sale of the Securities, in any jurisdiction in
which it is not now so subject.
(g) To mail and make generally available to its security holders as
soon as practicable an earnings statement covering the twelve-month period
ending __________, 199_ that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) So long as the Securities are outstanding, (i) to make generally
available as soon as practicable after the end of each fiscal year to the
record holders of the Securities a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified
by independent public accountants and (ii) to make
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 6 [Date]
generally available as soon as practicable after the end of each quarterly
period (except for the last quarterly period of each fiscal year) to such
holders, a consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial reports of
all unconsolidated subsidiaries, if any) as of the end of and for such period,
and for the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the corresponding
periods of the preceding year.
(i) So long as the Securities are outstanding, to furnish to you as
soon as available copies of all reports or other communications furnished to
its security holders or furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed and such other publicly available information concerning the Company and
its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel
and the Company's accountants in connection with the registration and delivery
of the Securities under the Act and all other fees and expenses in connection
with the preparation, printing, filing and distribution of the Registration
Statement (including financial statements and exhibits), any preliminary
prospectus, the Prospectus and all amendments and supplements to any of the
foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) all
costs of printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states and all costs of printing or producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the
Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the
offering of the Securities by the National Association of Securities Dealers,
Inc., (vi) all fees and expenses in connection with the preparation and filing
of the registration
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 7 [Date]
statement on Form 8-A relating to the Securities and all costs and expenses
incident to the listing of the Securities on [the Nasdaq National
Market/NYSE/AMEX] [and other national securities exchanges and foreign stock
exchanges], (vii) the cost of printing certificates representing the
Securities, (viii) the costs and charges of any transfer agent, registrar
and/or depositary (including the Depository Trust Company), (ix) any fees
charged by rating agencies for the rating of the Securities, [(x) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Securities1], (xi) the fees and expenses of the Warrant Agent
and the Warrant Agent's counsel in connection with the Warrant Agreement and
the Securities and (xii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section 5(j).
[(k) To use its best efforts to [list for quotation the Securities on
the Nasdaq National Market and to maintain the listing of the Securities on the
Nasdaq National Market] [list, subject to notice of issuance, the Securities on
the NYSE/AMEX and to maintain the listing of the Securities on the NYSE/AMEX]
for so long as the Securities are outstanding.]
(l) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any securities of the Company or any warrants,
rights or options to purchase or otherwise acquire securities of the Company
substantially similar to the Securities [or the Underlying Debt Securities1]
[or the Underlying Preferred Stock2] (other than (i) the Securities [,(ii) [the
Underlying Debt Securities,1] [the Underlying Preferred Stock] 2and (ii)
commercial paper issued in the ordinary course of business), without the prior
written consent of a majority of the unaffiliated Representatives.
(m) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(n) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Securities.
(o) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Securities [or Underlying Debt
Secuirties1] [or Underlying Preferred Stock2], to file a Rule 462(b)
Registration Statement
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 8 [Date]
with the Commission registering the Securities [or Underlying Debt Secuirties1]
[or Underlying Preferred Stock2] not so covered in compliance with Rule 462(b)
by 10:00 P.M., New York City time, on the date of this Agreement and to pay to
the Commission the filing fee for such Rule 462(b) Registration Statement at
the time of the filing thereof or to give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
(p) The Company will, for so long as any of the Securities are
outstanding and if, in the reasonable judgement of any Underwriter, such
Underwriter or any of its affiliates (as defined in the Act) is required to
deliver a prospectus in connection with sales of Securities (i) periodically
amend the Registration Statement so that the information contained in the
Registration Statement complies with the requirements of Section 10(a) of the
Act, (ii) amend the Registration Statement or amend or supplement the
Prospectus when necessary to reflect any material changes in the information
provided therein and promptly file such amendment or supplement with the
commission, (iii) provide such Underwriter with copies of each amendment or
supplement so filed and such other documents, including opinion of counsel and
"comfort" letter, as such Underwriter may reasonably request and (iv) indemnify
such Underwriter and if applicable, contribute to any amount paid or payable by
such Underwriter in a manner substantially identical to that specified in
Section 8 hereof (with appropriate modifications).
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 9 [Date]
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and
any amendments thereto, when they become effective (A) will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (B) will comply in all material respects with the Act and (v) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 10 [Date]
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(e) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights [and the Underlying Preferred
Stock has been duly authorized and, when issued and delivered as contemplated
by the terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Underlying Preferred Stock will not be
subject to any preemptive or similar rights]2.
(f) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien").
[(g) The Underlying Debt Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and issued and delivered in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.1]
[(h) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.1]
(i) The Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors'
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Donaldson, Lufkin & Jenrette
Securities Corporation 11 [Date]
rights generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
(j) The Securities have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Securities have been executed and authenticated in accordance with the
provisions of the Warrant Agreement and delivered to and paid for [(i)] by the
Underwriters in accordance with the terms of this Agreement [and (ii) upon
exercise of the Warrants pursuant to the Warrant Agreement3] the Securities
will be entitled to the benefits of the Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their terms
except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) The Securities [and the Underlying Debt Securities1] [and the
Underlying Preferred Stock2] conform as to legal matters to the description[s]
thereof contained in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(m) The execution, delivery and performance of this Agreement, [the
Indenture,1] the Warrant Agreement and the Securities by the Company, the
compliance by the Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
may be required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or
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Donaldson, Lufkin & Jenrette
Securities Corporation 12 [Date]
their respective property is bound, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien under any agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound or (v) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or any of its subsidiaries or
any other impairment of the rights of the holder of any such Authorization.
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(o) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on the
business, prospects, financial condition or results of operation of the Company
and its subsidiaries, taken as a whole.
(p) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory organizations
and all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease, license and
operate its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries,
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Securities Corporation 13 [Date]
taken as a whole. Each such Authorization is valid and in full force and effect
and each of the Company and its subsidiaries is in compliance with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto; and
no event has occurred (including, without limitation, the receipt of any notice
from any authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole.
(r) This Agreement has been duly authorized, executed and delivered
by the Company.
(s) KPMG LLP are independent public accountants with respect to the
Company and its subsidiaries as required by the Act.
(t) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), together with related schedules and notes, present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance with
generally accepted accounting
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Donaldson, Lufkin & Jenrette
Securities Corporation 14 [Date]
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared [on a basis consistent
with such financial statements and the books and records of the Company].
(u) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(v) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the
Securities registered pursuant to the Registration Statement.
(w) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has indicated
to the Company that it is considering (i) the downgrading, suspension or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating assigned to the Company or any
securities of the Company or (ii) any change in the outlook for any rating of
the Company or any securities of the Company.
(x) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent.
(y) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a
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Donaldson, Lufkin & Jenrette
Securities Corporation 15 [Date]
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 7. Representations and Warranties of the Underwriters. Each of
the several Underwriters represents and agrees with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (1) it has not offered or sold Warrants in
bearer form to a person who is within the United States or its possessions or
to a United States person and (2) it will not offer or sell Warrants in bearer
form at any time to a person who is within the United States or its possessions
or to a United States person;
(b) it has in effect procedures reasonably designed to ensure that
its employees or agents who are directly engaged in selling Warrants in bearer
form are aware that such Warrants may not be offered or sold at any time to a
person who is within the United States or its possessions or to a United States
person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Warrants
in bearer form for purposes of resale in connection with their original
issuance and if it retains Warrants in bearer form for its own account, it will
only do so in accordance with the requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Warrants in bearer form for the
purpose of offering or selling such Warrants, it will either (1) obtain from
such affiliate for the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c) above or (2) repeat and
confirm the representations and agreements contained in clauses (a), (b) and
(c) above on such affiliate's behalf and obtain from such affiliate the
authority to so obligate it;
(e) it will obtain for the benefit of the Company the representations
and agreements contained in clauses (a), (b), (c) and (d) above from any person
other than its affiliate with whom it enters into a written contract, as
defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer or
sale of Warrants in bearer form; and
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Donaldson, Lufkin & Jenrette
Securities Corporation 16 [Date]
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Warrants may be offered,
sold, resold or delivered.
All terms used in this Section have the meaning given to them by the
U.S. Internal Revenue Code and regulations thereunder, including the D Rules.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, its directors, its officers and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter but
only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action,
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Donaldson, Lufkin & Jenrette
Securities Corporation 17 [Date]
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Underwriter shall not be
required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of such Underwriter). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified
parties and all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, in the case of parties indemnified pursuant to
Section 8(a), and by the Company, in the case of parties indemnified pursuant
to Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply
with such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
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Donaldson, Lufkin & Jenrette
Securities Corporation 18 [Date]
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages,
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Donaldson, Lufkin & Jenrette
Securities Corporation 19 [Date]
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such indemnified party in connection with
investigating or defending any matter, including any action, that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any
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Donaldson, Lufkin & Jenrette
Securities Corporation 20 [Date]
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for
purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Securities than that on which the Securities were marketed.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by _______________ and _______________, in their
capacities as the _______________ and _______________ of the Company,
confirming the matters set forth in Sections 6(x), 9(a), 9(b) and 9(c) and that
the Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by
the Company on or prior to the Closing Date.
(e) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term debt of
the Company or any of its subsidiaries and (iii) neither the Company nor any of
its subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(e)(i),
9(e)(ii) or 9(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of the General Counsel of the Company, to the effect that:
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Donaldson, Lufkin & Jenrette
Securities Corporation 21 [Date]
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in
the Prospectus and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole;
(iii) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights
[and the Underlying Preferred Stock has been duly authorized and, when
issued and delivered as contemplated by the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Underlying Preferred Stock will not be subject to any
preemptive or similar rights]2;
(iv) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and
clear of any Lien;
[(v) The Underlying Debt Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and issued and delivered in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.1]
[(vi) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the
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Donaldson, Lufkin & Jenrette
Securities Corporation 22 [Date]
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;1]
(vii) The Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(viii) the Securities have been duly authorized and, when executed
an authenticated in accordance with the provisions of the Warrant
Agreement and delivered to and paid for [(i)] by the Underwriters in
accordance with the terms of this Agreement [and (ii) upon exercise of
the Warrants pursuant to the Warrant Agreement3] will be entitled to
the benefits of the Warrant Agreement and will be valid and binding
obligations of the Company, enforceable in accordance with their terms
except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) the Registration Statement has become effective under the
Act, no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's
knowledge after due inquiry, pending before or contemplated by the
Commission;
(xi) the statements under the captions "---------------",
"--------------", "--------------", "--------------", "-------------",
"---------------", "Description of Securities" and "Underwriting" in
the Prospectus and Item 15 of Part II of the Registration Statement,
insofar as such statements constitute a summary of the legal matters,
documents or
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Donaldson, Lufkin & Jenrette
Securities Corporation 23 [Date]
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings;
[(xii) such counsel is of the opinion ascribed to it in the
Prospectus under the caption "Taxation";]
(xiii) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor
any of its subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
property is bound;
(xiv) the execution, delivery and performance of this Agreement,
the [Indenture,1] the Warrant Agreement and the Securities by the
Company, the compliance by the Company with all the provisions hereof
and thereof and the consummation of the transactions contemplated
hereby and thereby will not (A) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (B) conflict with
or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (C) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their
respective property, (D) result in the imposition or creation of (or
the obligation to create or impose) a Lien under any agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
property is bound or (E) result in the suspension, termination or
revocation of any Authorization of the Company or any of its
subsidiaries
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 24 [Date]
or any other impairment of the rights of the holder of any such
Authorization;
(xv) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is or could be a party or to which any of
their respective property is or could be subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xvi) neither the Company nor any of its subsidiaries has violated
any Environmental Law or any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder, except for such violations which, singly or in
the aggregate, would not have a material adverse effect on the
business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(xvii) each of the Company and its subsidiaries has such
Authorizations of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary
to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly
or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole; each such Authorization is
valid and in full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no
event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension
or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the
rights of the holder of any such
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 25 [Date]
Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where
such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(xviii) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be, an "investment company"
as such term is defined in the Investment Company Act of 1940, as
amended;
(xix) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company or to require the Company to include
such securities with the Securities registered pursuant to the
Registration Statement; and
(xx) (A) each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus (except for
financial statements and other financial data included therein as to
which no opinion need be expressed) complied when so filed as to form
with the Exchange Act, (B) the Registration Statement and the
Prospectus and any supplement or amendment thereto (except for the
financial statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with the Act,
(C) such counsel has no reason to believe that at the time the
Registration Statement became effective or on the date of this
Agreement, the Registration Statement and the prospectus included
therein (except for the financial statements and other financial data
as to which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the Statement
of Eligibility (Form T-1) under the Trust Indenture Act) contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (D) such counsel has no reason to believe
that the Prospectus, as amended or supplemented, if applicable (except
for the financial statements and other financial data, as aforesaid)
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 26 [Date]
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
The opinion of the General Counsel of the Company described in Section
9(f) above shall be rendered to you at the request of the Company and shall so
state therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Davis Polk & Wardwell, counsel for the Underwriters, as to the
matters referred to in Sections [9(f)(v)1], [9(f)(vi)1], 9(f)(vii), 9(f)(viii),
9(f)(ix) and 9(f)(xi) (but only with respect to the statements under the
caption "Description of Securities" and "Underwriting") and clauses
9(f)(xx)(B), 9(f)(xx)(C) and 9(f)(xx)(D).
In giving such opinions with respect to the matters covered by Section
9(f)(xx), the General Counsel of the Company may state that his opinion and
belief are based upon his participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified. In giving such opinions with respect to the matters covered by
clauses 9(f)(xx)(B), 9(f)(xx)(C) and 9(f)(xx)(D) above, Davis Polk & Wardwell
may state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto (other than the documents incorporated therein by
reference) and review and discussion of the contents thereof (including the
documents incorporated therein by reference), but are without independent check
or verification except as specified.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from KPMG LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
[(i) The Securities shall have been duly listed[, subject to notice of
issuance, on the NYSE/AMEX] [for quotation on the Nasdaq National Market.]]
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 27 [Date]
(j) The Securities shall have been rated "__" by [Standard & Poor's
Corporation] and "__" by [Moody's Investors Service, Inc.]
(k) The Underwriters shall have received counterparts, conformed as
executed, of [each of the Indenture and1] the Warrant Agreement which shall
have been entered into by the parties thereto.
(l) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required
to be performed or complied with by the Company on or prior to the Closing
Date.
(m) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor any notice have been given of
any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for
purposes of Rule 436(g)(2) under the Act and (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization.
SECTION 10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 28 [Date]
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the principal amount of Securities set forth opposite its name in
Schedule bears to the aggregate principal amount of Securities which all the
non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the aggregate principal amount of
Securities which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased by all
Underwriters and arrangements satisfactory to you and the Company for purchase
of such Securities are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 29 [Date]
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
SECTION 11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172
and (ii) if to any Underwriter or to you, to you c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(j) hereof. The Company also agrees to
reimburse the several Underwriters, their directors and officers and any
persons controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors
and assigns" shall not
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 30 [Date]
include a purchaser of any of the Securities from any of the several
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE,
INC.
By:
--------------------------------
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves and the
several Underwriters named in Schedule hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
------------------------------------
Title:
- --------------
1 Include only for Warrants to purchase debt securities ("Debt Warrants")
2 Include only for Warrants to purchase preferred stock ("Preferred Stock
Warrants")
<PAGE>
Donaldson, Lufkin & Jenrette
Securities Corporation 31 [Date]
3 Include only for Debt Warrants or Preferred Stock Warrants
<PAGE>
SCHEDULE I
NUMBER OF
UNDERWRITERS SECURITIES
- ---------------------------------------------------- ---------------
Donaldson, Lufkin & Jenrette Securities Corporation to be Purchased
[Names of other Underwriters]
Total
---------------
EXHIBIT 4.1
===============================================================================
DONALDSON, LUFKIN & JENRETTE, INC., Company
and
THE CHASE MANHATTAN BANK, Trustee
SENIOR INDENTURE
Dated as of June 8, 1998
------------------
===============================================================================
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Other Definitions..............................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..............7
SECTION 1.04. Rules of Construction..........................................7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating................................................8
SECTION 2.02. Execution and Authentication...................................8
SECTION 2.03. Amount Unlimited; Issuable in Series..........................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest.....13
SECTION 2.05. Registrar and Paying Agent; Agents Generally..................13
SECTION 2.06. Paying Agent to Hold Money in Trust...........................14
SECTION 2.07. Transfer and Exchange.........................................15
SECTION 2.08. Replacement Securities........................................18
SECTION 2.09. Outstanding Securities........................................18
SECTION 2.10. Temporary Securities..........................................19
SECTION 2.11. Cancellation..................................................20
SECTION 2.12. CUSIP Numbers.................................................20
SECTION 2.13. Defaulted Interest............................................20
SECTION 2.14. Series May Include Tranches...................................20
SECTION 2.15. Computation of Interest.......................................21
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article......................................21
SECTION 3.02. Notice of Redemption; Partial Redemptions.....................21
SECTION 3.03. Payment of Securities Called for Redemption...................23
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption......................................24
SECTION 3.05. Mandatory and Optional Sinking Funds..........................24
<PAGE>
PAGE
----
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.........................................27
SECTION 4.02. Maintenance of Office or Agency...............................28
SECTION 4.03. Negative Pledge...............................................29
SECTION 4.04. Certificate of Trustee........................................30
SECTION 4.05. Reports by the Company........................................30
SECTION 4.06. Calculation of Original Issue Discount........................30
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc...................................30
SECTION 5.02. Successor Substituted.........................................31
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.............................................31
SECTION 6.02. Acceleration..................................................33
SECTION 6.03. Other Remedies................................................35
SECTION 6.04. Waiver of past Defaults.......................................35
SECTION 6.05. Control by Majority...........................................36
SECTION 6.06. Limitation on Suits...........................................36
SECTION 6.07. Rights of Holder to Receive Payment...........................37
SECTION 6.08. Collection Suit by Trustee....................................37
SECTION 6.09. Trustee May File Proofs of Claim..............................37
SECTION 6.10. Application of Proceeds.......................................38
SECTION 6.11. Restoration of Rights and Remedies............................39
SECTION 6.12. Undertaking for Costs.........................................39
SECTION 6.13. Rights and Remedies Cumulative................................39
SECTION 6.14. Delay or Omission Not Waiver..................................40
ARTICLE 7
TRUSTEE
SECTION 7.01. General.......................................................40
SECTION 7.02. Certain Rights of Trustee.....................................40
SECTION 7.03. Individual Rights of Trustee..................................42
SECTION 7.04. Trustee's Disclaimer..........................................42
SECTION 7.05. Notice of Default.............................................43
ii
<PAGE>
PAGE
----
SECTION 7.06. Reports by Trustee to Holders.................................43
SECTION 7.07. Compensation and Indemnity....................................43
SECTION 7.08. Replacement of Trustee........................................44
SECTION 7.09. Successor Trustee by Merger, Etc..............................45
SECTION 7.10. Eligibility...................................................46
SECTION 7.11. Money Held in Trust...........................................46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment.........................46
SECTION 8.02. Defeasance....................................................47
SECTION 8.03. Covenant Defeasance...........................................48
SECTION 8.04. Application of Trust Money....................................49
SECTION 8.05. Repayment to Company..........................................49
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders....................................50
SECTION 9.02. With Consent of Holders.......................................51
SECTION 9.03. Revocation and Effect of Consent..............................52
SECTION 9.04. Notation on or Exchange of Securities.........................53
SECTION 9.05. Trustee to Sign Amendments, Etc...............................53
SECTION 9.06. Conformity with Trust Indenture Act...........................53
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939..................................53
SECTION 10.02. Notices......................................................54
SECTION 10.03. Certificate and Opinion as to Conditions Precedent...........55
SECTION 10.04. Statements Required in Certificate or Opinion................55
SECTION 10.05. Evidence of Ownership........................................56
SECTION 10.06. Rules by Trustee, Paying Agent and Registrar.................56
SECTION 10.07. Payment Date Other than a Business Day.......................57
SECTION 10.08. Governing Law................................................57
SECTION 10.09. No Adverse Interpretation of Other Agreements................57
SECTION 10.10. Successors...................................................57
SECTION 10.11. Duplicate Originals..........................................57
SECTION 10.12. Separability.................................................57
SECTION 10.13. Table of Contents, Headings, Etc.............................57
iii
<PAGE>
PAGE
----
SECTION 10.14. Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability..................57
SECTION 10.15. Judgment Currency............................................58
iv
<PAGE>
INDENTURE, dated as of June 8, 1998, between Donaldson, Lufkin & Jenrette,
Inc., a Delaware corporation, as the Company, and The Chase Manhattan Bank, a
New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of
its debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities, the Company has duly authorized the execution
and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of The City
of New York, will, if practicable, be The Wall Street Journal (Eastern Edition)
and in the case of London, will, if practicable, be the Financial Times (London
Edition)) published in an official language of the country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or London, as
<PAGE>
applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board Resolution" means one or more resolutions of the board of directors
of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary of the Company to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, a day that is not a
day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 450 West 33rd Street 15th Floor, New York, New York 10001 Attention:
Corporate Trust Trustee Administration.
2
<PAGE>
"Default" means any Event of Default as defined in Section 6.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America at the date of any computation required or permitted hereunder.
"Holder" or "Securityholder" means the registered holder of any Security
with respect to Registered Securities and the bearer of any Unregistered
Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.
"Non-U.S. person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the board of
directors, the president, the executive vice president, any senior vice
president, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the treasurer
or any assistant treasurer, or the secretary or any assistant secretary,
complying with Section 10.04 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.04.
3
<PAGE>
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.04. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.04, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such
Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" of a Security means the principal amount of, and, unless the
context indicates otherwise, includes any premium payable on, the Security.
"Registered Global Security" means a Security evidencing all or a part of
a series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.05).
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"Responsible Officer" means when used with respect to the Trustee any
officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each applicable
jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978,
as amended and as codified in Title 11 of the United States Code, as amended
from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with
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respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at the
time of issuance of such series in the case of clause (i) or at the time of
issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on
such Security, and calculated in accordance with the constant interest method
or such other accepted financial practice as is specified in the terms of such
Security.
SECTION 1.02. Other Definitions. Each of the following terms is defined in
the section set forth opposite such term:
Term Section
Authenticating Agent 2.2
cash transaction 7.3
DLJSC 4.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Permitted Liens 4.3
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required
to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or Articles
of this Indenture unless otherwise indicated; and
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(e) use of masculine, feminine or neuter pronouns should not be deemed a
limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
SECTION 2.02. Execution and Authentication. The chairman of the board of
directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other than coupons) for the
Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an authenticating
agent (the "Authenticating Agent") to authenticate Securities (other than
coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture referred
to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the
Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms and terms of
the Securities, stating that the form or forms and terms of the Securities of
such series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this
Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws
affecting creditors' rights generally, general principles of equity, and such
other matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities
of such series issued in such form and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or its
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custodian or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series (subject to the last sentence of this
Section 2.03),
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum at which
the Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, on which such interest shall be payable
and (in the case of Registered Securities) on which a record shall be taken for
the determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places where
the Principal of and any interest on Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for exchange,
notices,
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demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served and notice to Holders may be published;
(f) the right, if any, of the Company to redeem Securities of the series,
in whole or in part, at its option and the period or periods within which, the
price or prices at which and any terms and conditions upon which Securities of
the series may be so redeemed, pursuant to any sinking fund or otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any of the terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the
amount of payments of Principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the
manner in which such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of the
series shall be payable in currency or currencies other than the currency of
the United States, the manner in which any such currency shall be valued
against other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will be
issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa;
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(m) whether and under what circumstances the Company will pay additional
amounts on the Securities of the series held by non-U.S. persons in respect of
any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;
(n) if the Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(o) any trustees, depositaries, authenticating or paying agents, transfer
agents or the registrar or any other agents with respect to the Securities of
the series;
(p) provisions, if any, for the defeasance of the Securities of the series
(including provisions permitting defeasance of less than all Securities of the
series), which provisions may be in addition to, in substitution for, or in
modification of (or any combination of the foregoing) the provisions of Article
8;
(q) if the Securities of the series are issuable in whole or in part as
one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(r) any other events of default or covenants with respect to the
Securities of the series; and
(s) any other terms of the Securities of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities
as to date and denomination, except in the case of any Periodic Offering and
except as may otherwise be provided by or pursuant to the Board Resolution
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto and any forms and terms of Securities to be issued from
time to time may be completed and established from time to time prior to the
issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
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SECTION 2.04. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.03 or, if not so established with respect to Securities of any series, in
denominations of $1,000 and any integral multiple thereof. The Securities of
each series shall be numbered, lettered or otherwise distinguished in such
manner or in accordance with such plan as the Officers of the Company executing
the same may determine, as evidenced by their execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as
such in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The Company
shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered Securi
ties and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company
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fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company may remove any Agent upon written notice to such Agent and the
Trustee; provided that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; provided that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with
the defeasance of the Securities or the discharge of this Indenture under
Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent and
Authenticating Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee ten days prior to each interest
payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00
a.m., New York City time, on each due date of any Principal or interest on any
Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee in writing of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing
so, the Paying Agent shall have no further liability for the money so paid over
to the Trustee. If the Company or any affiliate of the Company acts as Paying
Agent, it will, on or before each due date of any Principal of or interest on
any Securities, segregate and hold in a separate trust fund for the benefit of
the Holders thereof a sum of money sufficient to pay such Principal or interest
so becoming due until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly notify
the Trustee in writing of its action or failure to act as required by this
Section.
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SECTION 2.07. Transfer and Exchange. Unregistered Securities (except for
any temporary global Unregistered Securities) and coupons (except for coupons
attached to any temporary global Unregistered Securities) shall be transferable
by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with
Section 2.05 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise established pursuant
to Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.02, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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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 exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any
series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that any
Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and tenor
in any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
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Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to any
Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part
for Registered Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global Security
pursuant to this Section 2.07 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee in
writing. The Trustee or such agent shall deliver such Securities to or as
directed in writing by the Persons in whose names such Securities are so
registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any Securities
to the contrary, none of the Company, the Trustee or any agent of the Company
or the Trustee shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse Federal income tax
consequences to the Company (such as, for example, the inability of the Company
to deduct from its income, as computed for Federal income tax purposes, the
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interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be
entitled to rely conclusively on an Officers' Certificate or an Opinion of
Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate, register
the transfer of or exchange Securities of any series for a period of 15 days
before a selection of such Securities to be redeemed or (ii) to register the
transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated Security
of any series is surrendered to the Trustee or if a Holder claims that its
Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security
of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly authenticated and
delivered hereunder.
To the extent permitted by law, the foregoing provisions of this Section
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any time
are all Securities that have been authenticated by the Trustee except for those
Securities canceled by it, those Securities delivered to it for cancellation,
those paid pursuant to Section 2.08 and those Securities described in this
Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
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If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or one of
its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities shall have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned which are pledged by the Company, or by any affiliate of the Company,
as security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.
SECTION 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary
Securities, as evidenced by their execution of such temporary Securities. If
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities of any series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series and tenor upon surrender of such temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 4.02,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor
a like principal amount of definitive Securities of such series and tenor and
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series.
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SECTION 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel
all Securities surrendered for transfer, exchange, payment or cancellation and
shall deliver such canceled Securities to the Company. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 4.02, 6.01 through 6.14, 8.018.1 through 8.05 and 9.02, if
any series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series
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unless otherwise provided with respect to such series or tranche pursuant to
Section 2.03. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for or
permit action to be taken with respect to a series of Securities shall also be
deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
SECTION 2.15. Computation of Interest. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they
shall appear upon the Security Register of the Company. Notice of redemption to
the Holders of Unregistered Securities of any series to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to
all other Holders of Unregistered Securities of any series to be redeemed as a
whole or in part shall be published in an Authorized Newspaper in The City of
New York and in an Authorized Newspaper in London, in each case, once in each
of three successive calendar
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weeks, the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed or published
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
CUSIP and CINS numbers of the Securities to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities and, in the
case of Securities with coupons attached thereto, of all coupons appertaining
thereto maturing after the date fixed for redemption, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest thereon or on
the portions thereof to be redeemed will cease to accrue. In case any Security
of a series is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series and tenor in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 10 days prior to
the last date on which notice of redemption may be given to Holders pursuant to
the first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of
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redemption may be given to Holders pursuant to the first paragraph of this
Section 3.02 (or such shorter period as shall be acceptable to the Trustee) an
Officers' Certificate stating the aggregate principal amount of such Securities
to be redeemed. In case of a redemption at the election of the Company prior to
the expiration of any restriction on such redemption, the Company shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such redemption
is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11 and
8.04, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon
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surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a)
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deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except through a mandatory sinking fund payment) by the
Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to Section
2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities
of such series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Company intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the
Trustee with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable and
upon its receipt by the Trustee the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such sixtieth day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Company (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided
in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any
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unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request with respect to the
Securities of any series), such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price thereof together with accrued interest thereon to
the date fixed for redemption. If such amount shall be $50,000 (or such lesser
sum) or less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.02, for redemption on
such sinking fund payment date a sufficient principal amount of Securities of
such series to absorb said cash, as nearly as may be, and shall (if requested
in writing by the Company) inform the Company of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically identified
in such Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 3.02 (and with the effect provided in Section 3.03) for the
redemption of Securities of such series in part at the option of the Company.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the Principal of, and interest on, the Securities of such
series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that,
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where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to have
been collected under Article 6 and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section
6.04 or the Default cured on or before the sixtieth day preceding the sinking
fund payment date in any year, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this Section to
the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the Principal
of and interest on the Securities on the dates and in the manner provided in
the Securities and this Indenture. The interest on Securities with coupons
attached (together with any additional amounts payable pursuant to the terms of
such Securities) shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation
of such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders
at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any
series to the contrary, if the Company and a Holder of any Registered Security
so agree or if expressly provided pursuant to Section 2.03, payments of
interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New
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York City time (or such other time as may be agreed to between the Company and
the Paying Agent), directly to the Holder of such Security (by Federal funds
wire transfer or otherwise) if the Holder has delivered written instructions to
the Trustee 15 days prior to such payment date requesting that such payment
will be so made and designating the bank account to which such payments shall
be so made and in the case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same principal
amount as the unredeemed principal amount of the Securities surrendered. The
Trustee shall be entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 4.01 unless a new instruction is delivered 15
days prior to a payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense
(including attorneys' fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Securities may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company
hereby initially designates the Corporate Trust Office of the Trustee, located
in the Borough of Manhattan, The City of New York, as such office or agency of
the Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the
Company within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and
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regulations then in effect, such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, if full payment in
United States Dollars ("Dollars") at each agency maintained by the Company
outside the United States for payment on such Unregistered Securities or
coupons appertaining thereto is illegal or effectively precluded by exchange
controls or other similar restrictions, payments in Dollars of Unregistered
Securities of any series and coupons appertaining thereto which are payable in
Dollars may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of any series may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 4.03. Negative Pledge. Neither the Company nor any successor
corporation will, or permit any Subsidiary to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or
other encumbrance (except for Permitted Liens, as hereinafter defined) on the
Voting Stock of Donaldson, Lufkin & Jenrette Securities Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company or any Subsidiary of
the Company which shall hereafter succeed by merger or otherwise to all or
substantially all of the business of DLJSC ("DLJSC"), unless the Company shall
cause the Securities to be secured equally and ratably with (or, at the
Company's option, prior to) any indebtedness secured thereby. "Permitted Liens"
means liens for taxes or assessments or governmental charges or levies not then
due and delinquent or the validity of which is being contested in good faith or
which are less than $2,000,000 in amount, liens created by or resulting from
any litigation or legal proceeding which is currently being contested in good
faith by appropriate proceedings or which involves claims of less than
$2,000,000, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds and such other liens as the Board of Directors of the Company determines
do not materially detract from or interfere with the present value or control
of the Voting Stock subject thereto or affected thereby.
SECTION 4.04. Certificate of Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its
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principal executive, financial or accounting officer as to his or her knowledge
of the compliance of the Company with all conditions and covenants under this
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture) which certificate
shall comply with the requirements of the Trust Indenture Act.
SECTION 4.05. Reports by the Company. The Company covenants to file with
the Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of the covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.06. Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Securities and
under this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer and such
supplemental
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indenture complies with this provision and that all conditions precedent
provided for herein relating to such transaction have been complied with and
that such supplemental indenture constitutes the legal, valid and binding
obligation of the Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an Opinion of
Counsel as to the matters set forth in Section 5.1(a).
SECTION 5.02. Successor Substituted. Upon any consolidation or merger, or
any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including
as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any Security of
such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 days after written notice thereof has been
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Securities of all
series affected thereby;
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(d) an involuntary case or other proceeding shall be commenced against the
Company or DLJSC with respect to the Company or DLJSC or their respective debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or DLJSC or for any substantial part of
the property and assets of the Company or DLJSC, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Company or DLJSC under any
bankruptcy, insolvency or other similar law now or hereafter in effect;
(e) the Company or DLJSC (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (ii) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or DLJSC or for all or substantially all of the
property and assets of the Company or DLJSC or (iii) effects any general
assignment for the benefit of creditors;
(f) an event of default, as defined in any one or more indentures or
instruments evidencing or under which the Company has at the date of this
Indenture or shall hereafter have outstanding an aggregate of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed money,
shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within ten days after notice
thereof shall have been given to the Company by the Trustee (if such event be
known to it), or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding;
provided that if such event of default under such indentures or instruments
shall be remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the
Securityholders, and provided further, however, that the Trustee shall not be
charged with knowledge of any such default unless written notice thereof shall
have been given to the Trustee by the Company, by the holder or an agent of the
holder of any such indebtedness, by the trustee then acting under any indenture
or other instrument under which such default shall have occurred, or by the
Holders of not less than 25% in the aggregate principal amount of the
Securities at the time outstanding;
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(g) failure by the Company to make any payment at maturity, including any
applicable grace period, in respect of at least $25,000,000 aggregate principal
amount of indebtedness for borrowed money and such failure shall have continued
for a period of ten days after notice thereof shall have been given to the
Company by the Trustee (if such event be known to a Responsible Officer of the
Trustee, or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding; provided
that if such failure shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default under this Indenture by
reason thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or any of
the Securityholders; or
(h) any other Event of Default established pursuant to Section 2.03 with
respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
Section 6.01(a) or (b) with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series
established pursuant to Section 2.03) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in Section 6.01(c) or (h) with
respect to the Securities of one or more but not all series then outstanding,
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the Principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, the amount thereof accelerable under this Section) of the
Securities of all such affected series then outstanding hereunder (treated as a
single class) by notice in writing to the Company (and to the Trustee if given
by Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series
established pursuant to Section 2.03) of all
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Securities of all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
(c) If an Event of Default described in Section 6.01(d) or (e) occurs and
is continuing, then the principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified in
the terms thereof established pursuant to Section 2.03) of all the Securities
then outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in Section 6.01(f) or (g) or in
Section 6.01(c) or (h) with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount (or, if the Securities of any outstanding series are Original Issue
Discount Securities, the amount thereof accelerable under this Section) of all
Securities of any series then outstanding hereunder except for any series of
Securities the Principal of which shall have already become due and payable
(treated as a single class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal amount
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities of
any series then outstanding, and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified in
the terms thereof established pursuant to Section 2.03) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series
(or of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series
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to the date of such payment or deposit) and such amount as shall be sufficient
to cover all amounts owing the Trustee under Section 7.07, and if any and all
Events of Default under the Indenture, other than the non-payment of the
Principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal amount of all the
then outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to the
Trustee, may waive all defaults with respect to all such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the Principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the Principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of Default
with respect to the Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of past Defaults. Subject to Sections 6.02, 6.07 and
9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security as specified in Section 6.01(a) or
(b) or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the
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consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with
respect to the Securities of such series arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and 7.02(e),
the Holders of at least a majority in aggregate principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any series
may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
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(e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent with such written
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holder to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.3 of Original Issue Discount Securities) of
Principal of, and accrued interest remaining unpaid on, together with interest
on overdue Principal of, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest on, the Securities of such
series, in each case at the rate or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, and such further
amount as shall be sufficient to cover all amounts owing the Trustee under
Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for amounts due
the Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Securities),
its creditors or its property and shall be entitled and empowered to collect
and receive any moneys, securities or other property payable or deliverable
upon conversion or exchange of the Securities or upon any such claims and to
distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.07. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of
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any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of the Securities of any series shall be
applied in the following order at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of Principal or interest,
upon presentation of the several Securities and coupons appertaining to such
Securities in respect of which moneys have been collected and noting thereon
the payment, or issuing Securities of such series and tenor in reduced
principal amounts in exchange for the presented Securities of such series and
tenor if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07 applicable to the Securities of such series in respect of which
moneys have been collected;
SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such Principal and interest or Yield
to Maturity, without preference or priority of Principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over Principal, or
of any installment of interest over any other installment of interest, or
of any Security of such series over any other
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Security of such series, ratably to the aggregate of such Principal and
accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities of any series, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant (other than the Trustee) in the suit
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the outstanding Securities of such series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be
exercised
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from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article 7. The Trustee, prior to the
occurrence of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this indenture against the Trustee. If an Event
of Default to the actual knowledge of a Responsible Officer of the Trustee has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement or any Supplement and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any Officers' Certificate, Opinion of
Counsel (or both), 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 or persons.
The Trustee need not investigate any fact or matter stated in the document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
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Section 10.4. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys, agents, custodian and
nominee not regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent, attorney, custodian and nominee
appointed with due care;
(d) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy thereof certified by
the secretary or an assistant secretary of the Company;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request, order
or direction;
(f) the Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers or for any action it takes or omits to take in accordance with the
direction of the Holders in accordance with Section 6.05 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(g) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon; and
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(h) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, Officers' Certificate, Opinion of Counsel, Board Resolution,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
then outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require indemnity satisfactory to it against
such expenses or liabilities as a condition to proceeding.
(i) if the Trustee is acting as Paying Agent or Transfer Agent and
Registrar herein the nights and protections afforded the Trustee under this
Article 7 shall also be afforded to such Paying Agent or Transfer Agent and
Registrar.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company or its affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311.
For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following
terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
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SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and in
the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, unless
such Default shall have been cured or waived before the mailing or publication
of such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
fully protected in withholding such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
September 15, beginning with September 15, 1998, the Trustee shall mail to each
Holder as and to the extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of such September 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers, directors,
employees and Agents for, and hold it and them harmless against, any and all
loss, damage, claim or liability or expense (including legal fees and expenses)
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including taxes (other than taxes based on the income of the Trustee) incurred
by it or them without negligence or bad faith on its part arising out of or in
connection with the acceptance or administration of this Indenture and the
Securities or the issuance of the Securities or a series thereof or the trusts
hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or
investigating 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 this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law or the earlier registration or removal of
the Trustee. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities or coupons, and the Securities are hereby subordinated to such
senior claim. If the Trustee renders services and incurs expenses following an
Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties
hereto and the Holders by their acceptance of the Securities hereby agree that
such expenses are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any
series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no
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longer eligible under Section 7.10 of this Indenture; (ii) the Trustee is
adjudged a bankrupt or insolvent; (iii) a receiver or other public officer
takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.07, and subject to the payment of any and
all amounts then due and owing to the retiring Trustee (i) the retiring Trustee
shall transfer all property held by it as Trustee in respect of the Securities
of such series to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee in respect of the Securities of such series shall become
effective and (iii) the successor Trustee shall have all the rights, powers and
duties of the Trustee in respect of the Securities of such series under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
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Notwithstanding replacement of the Trustee with respect to the Securities
of any series pursuant to this Section 7.08, the Company's obligations under
Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
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 shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; provided that such successor Trustee shall be otherwise qualified and
eligible under this Article 7.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of Trust Indenture Act Section 310(a). The Trustee
shall have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law and except for money held
in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 8.01, the Company may terminate its obligations under
the Securities of any series and this Indenture with respect to Securities of
such series if:
(a) all Securities of such series previously authenticated and delivered
(other than destroyed, lost or wrongfully taken Securities of such series that
have been replaced or Securities of such series that are paid pursuant to
Section 4.01 or Securities of such series for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.05) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to
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the Trustee for giving the notice of redemption, (ii) the Company irrevocably
deposits in trust with the Trustee, as trust funds solely for the benefit of
the Holders of such Securities for that purpose, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment, to pay the Principal
of and interest on the Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it hereunder, and (iii)
the Company delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with respect to
the Securities of such series have been complied with.
With respect to the foregoing clause (a), only the Company's obligations
under Section 7.07 in respect of the Securities of such series shall survive.
With respect to the foregoing clause (b), only the Company's obligations in
Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in respect of the
Securities of such series shall survive until such Securities of such series
are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon written request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities of such series and this Indenture with respect to the Securities
of such series except for those surviving obligations specified above.
SECTION 8.02. Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier
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redemption (irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above and (ii) an Opinion of Counsel to the effect that
the Holders of the Securities of such series have a valid security interest in
the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section
8.02 of the Securities of such series have been complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08
and 8.05 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply with any
term, provision or condition set forth in Section 4.03 (or any other specific
covenant relating to such series provided for in a Board Resolution or
supplemental indenture pursuant to Section 2.03 which may by its terms be
defeased pursuant to this Section 8.03), and such omission shall be deemed not
to be an Event of Default under Section 6.01(c) or (h), with respect to the
outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the Securities
of such series,
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money or U.S. Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel to the
effect that (i) the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the UCC
and (ii) such Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and covenant defeasance and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the covenant defeasance contemplated by this
Section 8.03 of the Securities of such series have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the payment
of Principal of and interest on the Securities of such series; but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.01, 8.02 or 8.03 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Securities.
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SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01, 8.02
and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at
any time and not required to make payments hereunder and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once in
an Authorized Newspaper in London or mail to each Holder entitled to such money
at such Holder's address (as set forth in the Security Register) notice that
such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee may
amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not materially and adversely
affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment hereunder
with respect to the Securities of any or all series by a successor Trustee;
(e) to establish the form or forms or terms of Securities of any series or
of the coupons appertaining to such Securities as permitted by Section 2.03;
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(f) to provide for uncertificated or Unregistered Securities and to make
all appropriate changes for such purpose; or
(g) to make any change that does not materially and adversely affect the
rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07,
without prior notice to any Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such amendment (all such series voting as one class), and
the Holders of a majority in principal amount of the outstanding Securities of
all series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking fund
obligation or any installment of interest on, such Holder's Security, or reduce
the Principal thereof or the rate of interest thereon (including any amount in
respect of original issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase at
the option of such Holder, or reduce the amount of the Principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 6.02 or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the due
date therefor;
(b) reduce the percentage in principal amount of outstanding Securities of
the relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions of
this Indenture or certain Defaults and their consequences provided for in this
Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
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(d) modify any of the provisions of this Section 9.02, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the coupons appertaining to
such Securities.
It shall not be necessary for the consent of any Holder under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting Holder,
even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or
portion of its Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver shall become
effective with respect to any Securities affected thereby on receipt by the
Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which
may be not less than 10 nor more than 60 days prior to the solicitation of
consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If
a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not
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such Persons continue to be such Holders after such record date. No such
consent shall be valid or effective for more than 90 days after such record
date.
After an amendment, supplement or waiver becomes effective with respect to
the Securities of any series affected thereby, it shall bind every Holder of
such Securities unless it is of the type described in any of clauses (a)
through (d) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (d) of Section 9.02, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.02. Notices. Any notice or communication shall be sufficiently
given if written and (a) if delivered in person, when received or (b) if mailed
by first class mail, 5 days after mailing, or (c) as between the Company and
the Trustee if sent by facsimile transmission, when transmission is confirmed,
in each case addressed as follows:
if to the Company:
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Telecopy: (212) 504-4991
Attention: General Counsel
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Global Trust Services
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any
Unregistered Securities by publication at least once in an Authorized Newspaper
in The City of New York and at least once in an Authorized Newspaper in London,
and by mailing to the Holders thereof who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at
such addresses as were so furnished to the Trustee and to Holders of Registered
Securities by mailing to such Holders at their addresses as they shall appear
on the Security Register. Notice mailed shall be sufficiently given if so
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mailed within the time prescribed. Copies of any such communication or notice
to a Holder shall also be mailed to the Trustee and each Agent at the same
time.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
55
<PAGE>
(c) a statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of each such person,
such condition or covenant has been complied with; provided, however, that,
with respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered Security
or coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an
Unregistered Security, and the identifying number of such Security and the date
of his holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (b) the Security specified in such certificate shall be produced
by some other Person, or (c) the Security specified in such certificate shall
have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and
56
<PAGE>
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the Principal of and, subject
to the provisions of this Indenture, interest on such Registered Security and
for all other purposes; and neither the Company nor the Trustee nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary.
SECTION 10.06. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 10.07. Payment Date Other than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force
and effect as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York (without
regard to conflicts of laws principles thereof) shall govern this Indenture and
the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this Indenture
and the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 10.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12. Separability. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Table of Contents, Headings, Etc. The Table of Contents and
headings of the Articles and Sections of this Indenture have been inserted for
57
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convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms and provisions hereof.
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day in The City of New York, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of
New York preceding the day on which final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
58
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
DONALDSON, LUFKIN & JENRETTE,
INC., as the Company
By: /s/ Charles Hendrickson
--------------------------------
[CORPORATE SEAL]
Attest:
By: /s/ Marjorie White
-----------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Victor Evans
---------------------------------
59
EXHIBIT 4.5.1
FORM OF DEBT WARRANT AGREEMENT
FOR WARRANTS SOLD ATTACHED
TO DEBT SECURITIES
DONALDSON, LUFKIN & JENRETTE, INC.
and
---------------------,
as Warrant Agent
--------------------------
DEBT WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
--------------------
<PAGE>
TABLE OF CONTENTS1
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY] AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants...........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates.................2
SECTION 1.03. Issuance of Warrant Certificates...............................3
SECTION 1.04. Temporary Global Security......................................5
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price..................................................5
SECTION 2.02. Duration of Warrants...........................................5
SECTION 2.03. Exercise of Warrants...........................................6
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.....................................9
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.....9
SECTION 3.03. Enforcement of Rights.........................................10
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer.................10
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer.........................................11
SECTION 4.02. Treatment of Holders of Warrant Certificates..................13
SECTION 4.03. Cancellation of Warrant Certificates..........................13
- --------
1 The Table of Contents is not a part of the Agreement.
<PAGE>
PAGE
----
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................................14
SECTION 5.02. Conditions of Warrant Agent's Obligations.....................14
SECTION 5.03. Resignation and Appointment of Successor......................16
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.....................................................18
SECTION 6.02. Notices and Demands to the Company and Warrant Agent..........18
SECTION 6.03. Addresses.....................................................19
SECTION 6.04. Applicable Law................................................19
SECTION 6.05. Delivery of Prospectus........................................19
SECTION 6.06. Obtaining of Governmental Approval............................19
SECTION 6.07. Persons Having Rights under Warrant Agreement.................19
SECTION 6.08. Headings......................................................20
SECTION 6.09. Counterparts..................................................20
SECTION 6.10. Inspection of Agreement.......................................20
SECTION 6.11. Notices to Holders of Warrants................................20
TESTIMONIUM..................................................................21
SIGNATURES...................................................................21
EXHIBIT A - Form of Warrant Certificate [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant Agent by the
Euroclear Operator or Clearstream]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers of Warrant
Securities in Bearer Form]
ii
<PAGE>
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of ______________ between DONALDSON, LUFKIN &
JENRETTE, INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and ____________________, a [bank] [trust
company] duly incorporated and existing under the laws of __________________,
as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
WHEREAS, the Company has entered into a Senior Indenture dated as of June
8, 1998 (the "Senior Indenture") between the Company and The Chase Manhattan
Bank, as Trustee (the "Trustee") and a Subordinated Indenture dated as of
___________, (the "Subordinated Indenture" and together with the Senior
Indentures, "Indentures" or "Indenture") between the Company and the Trustee
(the "Subordinated Indenture"), providing for the issuance from time to time of
its unsecured debt securities to be issued in one or more series as provided in
the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such debt securities purchasable
through exercise of Warrants] (the "Warrant Securities"), the Warrants to be
evidenced by Warrant certificates issued pursuant to this Agreement (the
"Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- --------
2 Complete or modify the provisions of this form as appropriate to reflect
the terms of the Warrants and Warrant Securities. Monetary amounts may be in
U.S. dollars in a foreign currency or in a composite currency, including but
not limited to the European Currency Unit.
Bracketed language here and throughout this Agreement should be inserted as
follows:
1. If Warrants are immediately detachable from the Offered Securities;
and
2. If Warrants are detachable from the Offered Securities only after the
Detachable Date.
<PAGE>
ARTICLE 1
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY] AND
EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be evidenced by one
or more Warrant Certificates. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
a Warrant Security in the principal amount of and shall be initially issued in
connection with the issuance of the Offered Securities [1: and shall be
separately transferable immediately thereafter] [2: but shall not be separately
transferable until on and after __________, 20__ (the "Detachable Date")]. The
Warrants shall be initially issued with the Offered Securities, and each
Warrant shall evidence the right, subject to the provisions contained herein
and in the Warrant Certificates, to purchase [ ] principal amount of Warrant
Securities.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] hereto, shall
be dated ___________, 20__ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and 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 stock exchange on which the
Warrants may be listed, or to conform to usage. The chairman of the board of
directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Warrant Certificates for the Company by
facsimile or manual signature in the name and on behalf of the Company. The
seal of the Company, if any, shall be reproduced on the Warrant Certificates.
If an officer whose signature is on a Warrant Certificate no longer holds that
office at the time the Warrant Certificate is authenticated, the Warrant
Certificate shall nevertheless be valid.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
2
<PAGE>
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate [in
registered form], shall mean any person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [2: or, prior to the Detachable Date, any person in
whose name at the time the Offered Security to which such Warrant Certificate
is attached is registered upon the register of the Offered Securities. Prior to
the Detachable Date, the Company will, or will cause the registrar of the
Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date.]
[The term "Holder", when used with respect to the Global Warrant
Certificate, shall mean [2:, prior to the Detachable Date, the bearer of the
Temporary Global Security (as defined in Section 1.04) evidencing the Offered
Securities to which the Warrants evidenced by the Global Warrant Certificate
were initially attached and, after the Detachable Date,] the bearer of the
Global Warrant Certificate.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
______ aggregate principal amount of Warrant Securities (except as provided in
Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
3
<PAGE>
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing _______ Warrants representing the right to purchase up to ______
aggregate principal amount of Warrant Securities and shall[, in the case of
Warrant Certificates in registered form,] deliver such Warrant Certificates to
or upon the order of the Company [and, in the case of the Global Warrant
Certificate, upon the order of the Company, deposit the Global Warrant
Certificate with ________, as common depositary (the "Common Depositary") for
Morgan Guaranty Trust Company of New York, Brussels office (or any successor),
as operator of the Euroclear System (the "Euroclear Operator"), and for
Clearstream Banking SA ("Clearstream") for credit to the accounts of persons
appearing from time to time on the records of the Euroclear Operator or of
Clearstream as being entitled to any portion thereof. [2: The Temporary Global
Security [, as defined in Section 1.04,] will at the same time be deposited
with the Common Depositary.] [The Global Warrant Certificate shall be held by
the Common Depositary outside the United Kingdom.]] Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or[,
with respect to Warrant Certificates in registered form,] in connection with
their transfer as hereinafter provided or as provided in the antepenultimate
paragraph of Section 2.03].
Pending the preparation of definitive Warrant Certificates [in registered
form] evidencing Warrants, the Company may execute and the Warrant Agent shall
countersign and deliver temporary Warrant Certificates [in registered form]
evidencing such Warrants (printed, lithographed, typewritten or otherwise
produced, in each case in form satisfactory to the Warrant Agent). Such
temporary Warrant Certificates shall be issuable substantially in the form of
the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary
Warrant Certificates, all as may be determined by the Company with the
concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates [in registered form]. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant to
and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such
4
<PAGE>
temporary Warrant Certificates shall be entitled to the same benefits under
this Warrant Agreement as definitive Warrant Certificates [in registered form].
[2: SECTION 1.04. Temporary Global Security. Prior to the Detachable Date,
each Offered Security to be issued with Warrants evidenced by the Global
Warrant Certificate shall, whenever issued, be evidenced by a single temporary
global Offered Security in bearer form without interest coupons (the "Temporary
Global Security") to be issued by the Company as provided in the Indenture.]
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On ___________, 20__ the exercise price of
each Warrant will be $_______. During the period from ___________, 20__ through
and including ___________, 20__, the exercise price of each Warrant will be
$________ plus [accrued amortization of the original issue discount] [accrued
interest] from _________, 20__. On __________, 20__ the exercise price of each
Warrant will be $_______. During the period from _________, 20__ through and
including __________, 20__, the exercise price of each Warrant will be $______
plus [accrued amortization of the original issue discount] [accrued interest]
from _________, 20__. [In each case, the original issue discount will be
amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such exercise price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each principal amount of
Warrant Securities is ________].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [________, 20__]
and at or before [time, location] on ___________, 20__ (each day during such
period may hereinafter be referred to as an "Exercise Date")] [on [list of
specific dates] (each, an "Exercise Date")], or such later date as the Company
may designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all
rights of the Holder [and any beneficial owners] of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
5
<PAGE>
SECTION 2.03. Exercise of Warrants. [During] [With respect to Warrants
evidenced by Warrant Certificates in registered form, during] the period
specified in Section 2.02, any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately available funds,] the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the
Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)) to the Warrant Agent at
its corporate trust office at [address] [or at _________], provided that such
exercise is subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and
duly executed.
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may
be exercised by the Holder by presentation to the Warrant Agent at its office
at [address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate [2: together with, if prior to the Detachable Date,
the Temporary Global Security] (or written confirmation reasonably satisfactory
to the Warrant Agent that the Global Warrant Certificate [1: is] [2: and, if
prior to the Detachable Date, the Temporary Global Security are] held by the
Euroclear Operator and Clearstream and will be duly endorsed to reflect the
exercise of Warrants [2: and, if prior to the Detachable Date, the surrender to
the Warrant Agent of the Offered Securities to which the Warrants are attached]
by the Euroclear Operator and Clearstream), (ii) a duly executed certification
from the Euroclear Operator or Clearstream, as the case may be, substantially
in the form set forth in Exhibit C hereto and (iii) payment in full [in lawful
money of the United States of America] [in applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds,] of the Warrant Price
for each Warrant exercised (plus accrued interest, if any, on the Warrant
Securities to be issued upon exercise of such Warrant from and including the
Interest Payment Date, if any, in respect
6
<PAGE>
of such Warrant Securities immediately preceding the Exercise Date to and
including the Exercise Date (unless the Exercise Date is after the Regular
Record Date, if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable in respect of Warrant
Securities to be issued in registered form)). Notwithstanding the foregoing,
the Holder may exercise Warrants as aforesaid on the Expiration Date at any
time prior to [time] in [city of Warrant Agent's office]. Any Warrants
exercised as set forth in this paragraph shall be deemed exercised at the
[country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from the
Euroclear Operator or Clearstream through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
[The delivery to the Warrant Agent by the Euroclear Operator or
Clearstream of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit
D hereto has or have been delivered to the Euroclear Operator or Clearstream,
as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate [2: and, if prior to the Detachable
Date, the Temporary Global Security] may be presented for exercise of the
Warrants represented thereby [2: and, if prior to the Detachable Date, for
surrender for cancellation of the Offered Securities to which such Warrants are
attached] and notices and demands to or upon the Company in respect of the
Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate [2: and, if required, the Temporary Global Security] and
the certification of Euroclear Operator or Clearstream] as aforesaid, be deemed
to be the date on which the Warrant is exercised. The Warrant Agent shall
deposit all funds received by it in payment for the exercise of Warrants in an
account of the Company maintained with it (or in such other account as may be
designated by the Company) and shall advise the Company, by telephone or by
facsimile transmission or other form of electronic communication available to
both parties,
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at the end of each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company [and][,] the Trustee [and the Common Depositary at [both]
its London and [location] office[s]] in writing [(which, in the case of
exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate answerback received,)] of (i) the number of
Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates [in registered form] evidencing such Warrants [or of the Euroclear
Operator or Clearstream, as the case may be,] with respect to delivery of the
Warrant Securities to be issued upon such exercise, (iii) delivery of any
Warrant Certificates [in registered form] evidencing the balance, if any, of
the Warrants remaining after such exercise, and (iv) such other information as
the Company or the Trustee shall reasonably require. [In addition, in the case
of exercised Warrants evidenced by the Global Warrant Certificate, the Warrant
Agent shall, as promptly as practicable, endorse, or cause the Common
Depositary, [location] office, or one of the Warrant Agent's agents to endorse,
Schedule A annexed to the Global Warrant Certificate to reflect the exercise of
such Warrants [2: and the Temporary Global Security to reflect the surrender
for cancellation of the Offered Securities to which such Warrants are attached]
and, if applicable, return the Global Warrant Certificate [2: and the Temporary
Global Security] to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by a
Warrant Certificate in registered form], but subject to receipt by the Warrant
Agent of the Warrant Certificate evidencing such Warrant as provided in this
Section, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the Holder of the Warrant Certificate
evidencing each Warrant, the Warrant Securities to which such Holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such Holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant
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Certificate [in registered form] evidencing the number of such Warrants
remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by the
Global Warrant Certificate, the Company shall issue, pursuant to the Indenture,
the Warrant Securities issuable upon such exercise, in authorized denominations
(i) in fully registered form, registered in such name or names as may be
directed by the Euroclear Operator or Clearstream, as the case may be, to or
upon order of the Euroclear Operator or Clearstream, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Clearstream, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however, that
no Warrant Security in bearer form shall be mailed or otherwise delivered to
any location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico.]
The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security 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.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the Holder or any beneficial owner thereof to any of the rights of a
holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants
in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, mutilation, theft or destruction
of any Warrant Certificate and of such security or indemnity as may be required
by the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender
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thereof to the Warrant Agent for cancellation, then, in the absence of notice
to the Company or the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, in
exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants[; provided, however, that any Global Warrant Certificate
shall be so delivered only to the Common Depositary.] Upon the issuance of any
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 relation thereto 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, mutilated, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the 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. 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, mutilated, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the provisions
of this Agreement, any Holder of a Warrant Certificate [in registered form or
the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant
Agent, the Trustee, the holder of any Offered Securities or the Holder of any
other Warrant Certificate, may, in its own behalf and for its own benefit,
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 its Warrants in the manner provided in its Warrant Certificate [or the
Global Warrant Certificate, as the case may be,] and in this Agreement.
[Neither the Company nor the Warrant Agent shall be required to treat any
person as a beneficial owner of any Warrant evidenced by the Global Warrant
Certificate unless such person is so certified as such a beneficial owner by
the Euroclear Operator or Clearstream.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety as permitted
under the Indenture, then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect, subject to the Indenture, as if it had been
named herein and in the Warrant Certificates as the Company; the Company shall
thereupon, except in the
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case of a transfer by way of lease, be relieved of any further obligation
hereunder and under the Warrants and the Warrant Certificates, and the Company
as the predecessor corporation, except in the case of a transfer by way of
lease, may thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming corporation may thereupon cause to be
signed, and may issue either in its own name or in the name of the Company,
Warrant Certificates evidencing any or all of the Warrants issuable hereunder
which theretofore shall not have been signed by the Company, and may execute
and deliver Warrant Securities in its own name pursuant to the Indenture, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel (who
shall be acceptable to the Warrant Agent) as conclusive evidence that any such
merger, consolidation, conveyance or transfer complies with the provisions of
this Section and the Indenture.
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate [in registered form] may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Security. Prior to
the Detachable Date, the transfer of the beneficial ownership of any Warrant
evidenced by the Global Warrant Certificate shall effect and shall be deemed to
effect the transfer of the beneficial ownership of any Offered Securities
evidenced by the Temporary Global Security that are attached to such Warrants.
Prior to any Detachable Date, each transfer of the Offered Security [on the
register maintained with respect to the Offered Securities, in the case of an
Offered Security that is in registered form], shall operate to also transfer
the related Warrant Certificates. Similarly, prior to the Detachable Date, the
transfer of the beneficial ownership of any Offered Security evidenced by the
Temporary Global Security shall be deemed to be the transfer of the beneficial
ownership of any Warrants evidenced
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by the Global Warrant Certificate that are attached to such Offered
Securities. The transfer of the beneficial ownership of Warrants and Warrant
Securities hereunder shall be effected only as provided in Section 4.01. On or
after the Detachable Date, upon] surrender at the corporate trust office of the
Warrant Agent at [address] [or ___________], Warrant Certificates [in
registered form] evidencing Warrants may be exchanged for Warrant Certificates
[in registered form] in other authorized denominations evidencing such Warrants
or the transfer thereof may be registered in whole or in part; provided,
however, that such other Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at _________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant
Certificates [in registered form] upon surrender of such Warrant Certificates
to the Warrant Agent at its corporate trust office at [address] or [_________]
for exchange or registration of transfer, properly endorsed [or accompanied by
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates [in registered form], but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer.
(d) Whenever any Warrant Certificates [in registered form], are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered
form], evidencing a fraction of a Warrant or a number of full Warrants and a
fraction of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Warrant Certificates surrendered
for such exchange or registration or transfer.
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SECTION 4.02. Treatment of Holders of Warrant Certificates. [With respect
to the Global Warrant Certificate, the Holder thereof may be treated by the
Company, the Warrant Agent and all other persons dealing with such Holder as
the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.] [Each] [With respect to Warrant Certificates
in registered form, each] Holder of a Warrant Certificate, by accepting the
same, consents and agrees with the Company, the Warrant Agent and every
subsequent Holder of such Warrant Certificate that until the transfer of such
Warrant Certificate is registered on the books of such Warrant Agent [2: or,
prior to the Detachable Date, until the transfer of the Offered Security to
which such Warrant Certificate is attached, is registered in the register of
the Offered Securities], the Company and the Warrant Agent may treat the
registered Holder of such Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in
lieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates
to be destroyed and shall deliver a certificate of such destruction to the
Company.
(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date] [, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant
Agent of its election, to cancel the unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby. Promptly after receipt of such
notice by the Warrant Agent, the Company shall, or, at the Company's request,
the Warrant Agent shall in the name of and at the expense of the Company, give
notice of such cancellation to the Holders of the Warrant Certificates [in
registered form and to the beneficial owners of the Global Warrant Certificate
(except that such notice shall be required to be published only once)], such
notice to be so given not less than 30 nor more than 60 days prior to the date
fixed for the redemption of [2: the Offered Securities [or] [and]] the Warrant
Securities pursuant to the Indenture or the terms thereof. The unexercised
Warrants, the Warrant Certificates and the rights evidenced thereby shall be
cancelled and become void on the 15th day prior to such date fixed for
redemption.
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ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints __________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; 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 herein and such further
powers and authority 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 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth 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 from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including reasonable
attorneys' fees) incurred by the Warrant Agent without negligence, bad
faith or breach of this Agreement on its part 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 incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder, as well as the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, 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 of the
Holders of Warrant Certificates or beneficial owners of Warrants.
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(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it in its reasonable judgment, 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 or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not
the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as Trustee under the
Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability 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.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution
of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the
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Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, 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 of the Warrant Certificates 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 Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a Holder of a Warrant Certificate 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
6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice of its resignation to the Company, specifying the desired date on which
its resignation shall become effective; provided, however, that such date shall
be not less than 90 days after the date on which such notice is given unless
the Company agrees to accept shorter notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust
powers) by written instrument in duplicate signed on behalf of the Company, one
copy of which shall be delivered to the resigning Warrant Agent and one copy to
the successor Warrant Agent. The Company may, at any time and for any reason,
remove the Warrant Agent and appoint a successor Warrant Agent (qualified as
aforesaid) by written instrument in duplicate signed on behalf of the Company
and specifying such removal and the date when it is intended to become
effective, one copy of which shall be delivered to the Warrant Agent being
removed and one copy to the successor Warrant Agent. Any resignation or removal
of the Warrant Agent and any appointment of a successor Warrant Agent shall
become effective upon acceptance of appointment by the successor Warrant Agent
as provided in this subsection (b). In the event a successor Warrant Agent has
not been appointed and 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
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for the designation of a successor Warrant Agent. Upon its resignation or
removal, the Warrant Agent shall be entitled to the payment by the Company of
the compensation and to the reimbursement of all reasonable out-of-pocket
expenses (including reasonable attorneys' fees) incurred by it hereunder as
agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a successor
Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii)
shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) 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 the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
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ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Warrants
and the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in
the Warrant Certificates, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable, provided that such action shall
not affect adversely the interests of the Holders of the Warrant Certificates
or the beneficial owners of Warrants in any material respect.
(b) The Company and the Warrant Agent may modify or amend this Agreement
(by means of an agreement supplemental hereto or otherwise) with the consent of
Warrantholders holding not less than a majority in number of the then
outstanding Warrants of all series affected by such modification or amendment,
for any purpose; provided, however, that no such modification or amendment that
changes the exercise price of the Warrants of any series, reduces the amount
receivable upon exercise, cancellation or expiration of the Warrants other than
in accordance with the antidilution provisions or other similar adjustment
provisions included in the terms of the Warrants, shortens the period of time
during which the Warrants of such series may be exercised, or otherwise
materially and adversely affects the exercise rights of the affected
Warrantholders or reduces the percentage of the number of outstanding Warrants
of such series, the consent of whose holders is required for modification or
amendment of this Agreement, may be made without the consent of each
Warrantholder affected thereby. In the case of Warrants evidenced by one or
more Global Warrant Certificates, the Company and the Warrant Agent shall be
entitled to rely upon certification in form satisfactory to each of them that
any requisite consent has been obtained from holders of beneficial ownership
interests in the relevant Global Warrant Certificate. Such certification may be
provided by participants of the Depositary acting on behalf of such beneficial
owners of Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder of a Warrant Certificate pursuant to the provisions of the
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Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to ,
Attention: , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Donaldson, Lufkin
& Jenrette, Inc., 277 Park Avenue, New York, New York 10172, Attention:
_________ (or such Other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions hereof and thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. [Except as
otherwise provided in Section 3.03, nothing] [Nothing] in this Agreement shall
give to any person other than the Company, the Warrant Agent and the Holders of
the Warrant Certificates any right, remedy or claim under or by reason of this
Agreement.
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SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an
original, but 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 Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
20
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
[SEAL] By:
-----------------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
[WARRANT AGENT]
[SEAL] By:
-----------------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
21
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to ____________, this Warrant
Securities with Warrants are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title of
Offered Securities].]
[Form of Legend if Warrants are not Prior to________, Warrants evidenced
immediately exercisable by this Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DONALDSON, LUFKIN & JENRETTE, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER [TIME, LOCATION], ON _____________
No.__________ _______________ Warrants
This certifies that _____________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [2:, subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate (as hereinafter defined),] to purchase, at any time [after
[time, location] on _________ and] on or before [time, location], on
___________, ______ shares of [Title of Warrant Securities] (the "Warrant
Securities"), of Donaldson, Lufkin & Jenrette, Inc. (the "Company") on the
following basis: during the period from _____________, through and including
___________, the exercise price of each Warrant will be _________; during the
period from ________________, through and including __________, the exercise
price of each Warrant will be (the "Warrant Price"). No adjustment shall be
made for any dividends or other distributions, if any, on any Warrant
Securities issuable upon exercise of any Warrant. The holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the United States of
America][in applicable currency] [in cash] [by certified check or official bank
check or by
A-1
<PAGE>
bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds], the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent"), [or ____________], which is, on the date hereof, at the
address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "Holder" as used herein shall mean [2:, prior to _________ (the
"Detachable Date"), the registered owner of the Company's [Title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
[Any whole number of] [The] Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form. [Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ___________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at ____________].
[2: Prior to _____________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, transfer of this] [1: Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or _________]
by the registered owner or such owner's assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.
[2: Except as provided in the immediately preceding paragraph, after]
[After] countersignature by the Warrant Agent and prior to the expiration of
this
A-2
<PAGE>
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or ___________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or the exercise of any voting rights.
This Warrant Certificate shall not be valid or binding for any purpose
until countersigned by the Warrant Agent.
Dated as of ______________
DONALDSON, LUFKIN &
JENRETTE, INC.
By
----------------------------------
Title:
Attest:
- ----------------------------
Countersigned:
- ----------------------------
____________, as Warrant Agent
By
--------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in United
States dollars][in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] [in immediately available funds], the Warrant Price in full for
Warrants exercised to [insert of name of Warrant Agent] [corporate trust
department] [insert address of Warrant Agent], Attn. _____________ [or
________________], which [payment] [wire transfer] must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the
Holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________ Warrants,
evidenced by this Warrant Certificate, to purchase ______ shares of the [Title
of Warrant Securities] (the "Warrant Securities") of the Company and represents
that he has tendered payment for such Warrant Securities [in United States
dollars] [in applicable currency] [in cash] [by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire transfer] [in
immediately available funds] to the order of Donaldson, Lufkin & Jenrette,
Inc., c/o [insert name and address of Warrant Agent], in the amount of
__________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
[If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.]
A-4
<PAGE>
Date: Name
----------------------------- --------------------------
Address
- ---------------------------------- -----------------------
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed
Signature
- ---------------------------------- --------------------
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
By mail at
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
A-5
EXHIBIT 4.5.2
[Form of Debt Warrant Agreement for Warrants Sold Alone]
DONALDSON, LUFKIN & JENRETTE, INC.
and
---------------------,
as Warrant Agent
-------------------------,
DEBT WARRANT AGREEMENT
Dated as of ___________
------------------------
Warrants to Purchase ________
---------------------
<PAGE>
<TABLE>
TABLE OF CONTENTS(1)
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
<S> <C>
SECTION 1.01. Issuance of Warrants.............................................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates...................................2
SECTION 1.03. Issuance of Warrant Certificates.................................................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price....................................................................5
SECTION 2.02. Duration of Warrants.............................................................5
SECTION 2.03. Exercise of Warrants.............................................................5
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates...............................................9
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.......................9
SECTION 3.03. Enforcement of Rights............................................................9
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer...................................10
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer...........................................................11
SECTION 4.02. Treatment of Holders of Warrant Certificates....................................12
SECTION 4.03. Cancellation of Warrant Certificates............................................12
- --------
1 The Table of Contents is not a part of the Agreement.
i
<PAGE>
PAGE
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent...................................................................13
SECTION 5.02. Conditions of Warrant Agent's Obligations.......................................13
SECTION 5.03. Resignation and Appointment of Successor........................................15
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.......................................................................17
SECTION 6.02. Notices and Demands to the Company and Warrant Agent............................17
SECTION 6.03. Addresses.......................................................................17
SECTION 6.04. Applicable Law..................................................................18
SECTION 6.05. Delivery of Prospectus..........................................................18
SECTION 6.06. Obtaining of Governmental Approval..............................................18
SECTION 6.07. Persons Having Rights under Warrant Agreement...................................18
SECTION 6.08. Headings........................................................................18
SECTION 6.09. Counterparts....................................................................19
SECTION 6.10. Inspection of Agreement.........................................................19
SECTION 6.11. Notices to Holders of Warrants..................................................19
TESTIMONIUM....................................................................................20
SIGNATURES.....................................................................................20
EXHIBIT A - Form of Warrant Certificate [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant Agent by the Euroclear Operator
or Clearstream]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers of Warrant Securities in Bearer Form]
ii
</TABLE>
<PAGE>
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of _____ between DONALDSON, LUFKIN & JENRETTE,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and ________, a [bank] [trust company] duly
incorporated and existing under the laws of _______, as Warrant Agent (the
"Warrant Agent"),
W I T N E S S E T H :
WHEREAS, the Company has entered into a Senior Indenture dated as of
June 8, 1998 (the "Senior Indenture") between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), and a Subordinated Indenture dated
as of _____________ (the "Subordinated Indenture" and, together with the Senior
Indenture "Indentures" or "Indenture") between the Company and the Trustee
providing for the issuance from time to time of its unsecured debt securities
to be issued in one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- --------
2 Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities.
Monetary amounts may be in U.S. dollars in a foreign currency or in a composite
currency, including but not limited to the European Currency Unit.
<PAGE>
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be evidenced
by one or more Warrant Certificates. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase a Warrant Security in the principal amount of
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] hereto, shall
be dated ______ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and 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 stock exchange on which the
Warrants may be listed, or to conform to usage. The chairman of the board of
directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Warrant Certificates for the Company by
facsimile or manual signature in the name and on behalf of the Company. The
seal of the Company, if any, shall be reproduced on the Warrant Certificates.
If an officer whose signature is on a Warrant Certificate no longer holds that
office at the time the Warrant Certificate is authenticated, the Warrant
Certificate shall nevertheless be valid.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
2
<PAGE>
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. [The term "Holder", when used with respect to
the Global Warrant Certificate, shall mean the bearer thereof.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
_____ aggregate principal amount of Warrant Securities (except as provided in
Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing ____Warrants representing the right to purchase up to _____
aggregate principal amount of Warrant Securities and shall[, in the case of
Warrant Certificates in registered form,] deliver such Warrant Certificates to
or upon the order of the Company [and, in the case of the Global Warrant
Certificate, upon the order of the Company, deposit the Global Warrant
Certificate with ____, as common depositary (the "Common Depositary") for
Morgan Guaranty Trust Company of New York, Brussels office (or any successor),
as operator of the Euroclear System (the "Euroclear Operator"), and for
Clearstream Banking SA ("Clearstream") for credit to the accounts of persons
appearing from time to time on the records of the Euroclear Operator or of
Clearstream as being entitled to any portion thereof. [The Global Warrant
Certificate shall be held by the Common Depositary outside the United
Kingdom.]] Subsequent to such original issuance of the Warrant Certificates,
the Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates or [, with respect to Warrant Certificates
in registered form,] in connection with their transfer as hereinafter provided
or as provided in the antepenultimate paragraph of Section 2.03].
3
<PAGE>
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten
or otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the form
of the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary
Warrant Certificates, all as may be determined by the Company with the
concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates [in registered form]. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant to
and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates [in registered form].
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On _______, 20__ the exercise price of
each Warrant will be $___. During the period from _______, 20__, through and
including ____, 20__, the exercise price of each Warrant will be $___ plus
[accrued amortization of the original issue discount] [accrued interest] from
________, 20__. On _____, 20__, the exercise price of each Warrant will be
$___. During the period from _______, 20__ through and including , 19
, the exercise price of each Warrant will be $___ plus [accrued amortization
of the original issue discount] [accrued interest] from ________, 20__ . [In
each case, the original issue discount will be amortized at a ___% annual rate,
computed on an annual basis using the "interest" method and using a 360-day
year consisting of twelve 30-day months]. Such exercise price of Warrant
Securities is referred to in this Agreement as the "Warrant Price". [The
original issue discount for each principal amount of Warrant Securities is
______].
4
<PAGE>
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [______, 20__]
and at or before [time, location] on _______, 20__ (each day during such period
may hereinafter be referred to as an "Exercise Date")] [on [list of specific
dates] (each, an "Exercise Date")], or such later date as the Company may
designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all
rights of the Holder [and any beneficial owners] of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants
evidenced by Warrant Certificates in registered form, during] [During] the
period specified in Section 2.02, any whole number of Warrants may be exercised
by providing certain information as set forth on the reverse side of the
Warrant Certificates evidencing such Warrants and by paying in full [in lawful
money of the United States of America] [in applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds,] the Warrant Price for
each Warrant exercised (plus accrued interest, if any, on the Warrant
Securities to be issued upon exercise of such Warrant from and including the
Interest Payment Date (as defined in the Indenture), if any, in respect of such
Warrant Securities immediately preceding the Exercise Date to and including the
Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable)) to the
Warrant Agent at its corporate trust office at [address] [or at __________],
provided that such exercise is subject to receipt within five business days of
such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate
evidencing each Warrant exercised with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may
be exercised by the Holder by presentation to the Warrant Agent at its office
at [address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate (or written confirmation reasonably satisfactory to
the Warrant Agent that the Global Warrant Certificate is held by the Euroclear
Operator and Clearstream and will be duly endorsed to reflect the exercise of
5
<PAGE>
Warrants by the Euroclear Operator and Clearstream), (ii) a duly executed
certification from the Euroclear Operator or Clearstream, as the case may be,
substantially in the form set forth in Exhibit C hereto and (iii) payment in
full [in lawful money of the United States of America] [in applicable currency]
[in cash] [by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] [in immediately available funds,] of the
Warrant Price for each Warrant exercised (plus accrued interest, if any, on the
Warrant Securities to be issued upon exercise of such Warrant from and
including the Interest Payment Date, if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the
Exercise Date (unless the Exercise Date is after the Regular Record Date, if
any, for such Interest Payment Date, but on or before the immediately
succeeding Interest Payment Date for such Warrant Securities, in which event no
such accrued interest shall be payable in respect of Warrant Securities to be
issued in registered form)). Notwithstanding the foregoing, the Holder may
exercise Warrants as aforesaid on the Expiration Date at any time prior to
[time] in [city of Warrant Agent's office]. Any Warrants exercised as set forth
in this paragraph shall be deemed exercised at the [country] office of the
Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euroclear Operator of Clearstream through the Expiration Date (or such
earlier date by which all of the Warrants may have been exercised or cancelled)
and thereafter shall dispose of them or deliver them to the Company pursuant to
the instructions of the Company.]
[The delivery to the Warrant Agent by the Euroclear Operator or
Clearstream of any certification referred to above may be relied upon by the
Company, the Warrant Agent and the Trustee as conclusive evidence that a
corresponding certificate or certificates substantially in the form of Exhibit
D hereto has or have been delivered to the Euroclear Operator or Clearstream,
as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate may be presented for exercise of
the Warrants represented thereby and notices and demands to or upon the Company
in respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate and the certification of Euroclear Operator or Clearstream]
as
6
<PAGE>
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment for the
exercise of Warrants in an account of the Company maintained with it (or in
such other account as may be designated by the Company) and shall advise the
Company, by telephone or by facsimile transmission or other form of electronic
communication available to both parties, at the end of each day on which a
payment for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such advice to the
Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common Depositary
at [both] its London and [location] office[s]] in writing [(which, in the case
of exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate answerback received,)] of (i) the number of
Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates [in registered form] evidencing such Warrants [or of the Euroclear
Operator or Clearstream, as the case may be,] with respect to delivery of the
Warrant Securities to be issued upon such exercise, (iii) delivery of any
Warrant Certificates [in registered form] evidencing the balance, if any, of
the Warrants remaining after such exercise, and (iv) such other information as
the Company or the Trustee shall reasonably require. [In addition, in the case
of exercised Warrants evidenced by the Global Warrant Certificate, the Warrant
Agent shall, as promptly as practicable, endorse, or cause the Common
Depositary, [location] office, or one of the Warrant Agent's agents to endorse,
Schedule A annexed to the Global Warrant Certificate to reflect the exercise of
such Warrants and, if applicable, return the Global Warrant Certificate to the
Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], but subject to receipt by the
Warrant Agent of the Warrant Certificate evidencing such Warrant as provided in
this Section, the Company shall issue, pursuant to the Indentures, in
authorized denominations to or upon the order of the Holder of the Warrant
Certificate evidencing each Warrant, the Warrant Securities to which such
Holder is entitled, in fully registered form, registered in such name or names
as may be directed by
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such Holder. If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate [in registered form] evidencing the number of such Warrants
remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euroclear Operator or Clearstream, as the case may be,
to or upon order of the Euroclear Operator or Clearstream, as the case may be,
or (ii) in bearer form to the Common Depositary to be held for the account of
the Euroclear Operator or Clearstream, as the case may be, together with a
written confirmation substantially in form of Exhibit E hereto; provided,
however, that no Warrant Security in bearer form shall be mailed or otherwise
delivered to any location in the United States of America, its territories or
possessions or areas subject to its jurisdiction or the Commonwealth of Puerto
Rico.]
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security 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.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder of any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including,
without limitation, the right to receive the payment of principal of (premium,
if any) or interest, if any, on Warrant Securities or to enforce any of the
covenants in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss,
mutilation, theft or destruction of
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any Warrant Certificate and of such security or indemnity as may be required by
the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants[; provided, however, that any Global Warrant Certificate
shall be so delivered only to the Common Depositary.] Upon the issuance of any
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 relation thereto 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, mutilated, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the 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. 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, mutilated, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate [in
registered form or the beneficial owner of any Warrant evidenced by the Global
Warrant Certificate], without the consent of [the Common Depositary,] the
Warrant Agent, the relevant Trustee, the holder of any Offered Securities of
the Holder of any other Warrant Certificate, may, in its own behalf and for its
own benefit, 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 its Warrants in the manner provided in its Warrant
Certificate [or the Global Warrant Certificate, as the case may be,] and in
this Agreement. [Neither the Company nor the Warrant Agent shall be required to
treat any person as a beneficial owner of any Warrant evidenced by the Global
Warrant Certificate unless such person is so certified as such a beneficial
owner by the Euroclear Operator or Clearstream.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If
at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indentures, then in any such event the successor or
assuming corporation
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referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to the Indentures, as if it had been named herein and
in the Warrant Certificates as the Company; the Company shall thereupon, except
in the case of a transfer by way of lease, be relieved of any further
obligation hereunder and under the Warrants and the Warrant Certificates, and
the Company as the predecessor corporation, except in the case of a transfer by
way of lease, may thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming corporation may thereupon cause to be
signed, and may issue either in its own name or in the name of the Company,
Warrant Certificates evidencing any or all of the Warrants issuable hereunder
which theretofore shall not have been signed by the Company, and may execute
and deliver Warrant Securities in its own name pursuant to the Indentures, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indentures.
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the
corporate trust office of the Warrant Agent at [address] [or ____], Warrant
Certificates [in registered form] evidencing Warrants may be exchanged for
Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates shall evidence
the same aggregate number of Warrants as the Warrant Certificates so
surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at _______], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant
Certificates [in registered form]
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upon surrender of such Warrant Certificates to the Warrant Agent at its
corporate trust office at [address] or [_____] for exchange or registration of
transfer, properly endorsed [or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer.
(d) Whenever any Warrant Certificates [in registered form], are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered
form], evidencing a fraction of a Warrant or a number of full Warrants and a
fraction of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Warrant Certificates surrendered
for such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing with such Holder
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.] [With respect to Warrant Certificates in
registered form, each] [Each] Holder of a Warrant Certificate, by accepting the
same, consents and agrees with the Company, the Warrant Agent and every
subsequent Holder of such Warrant Certificate that until the transfer of such
Warrant Certificate is registered on the books of such Warrant Agent, the
Company and the Warrant Agent may treat the registered Holder of such Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
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SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in
lieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates
to be destroyed and shall deliver a certificate of such destruction to the
Company.
(b) If the Company notifies the relevant Trustee of its election to
redeem [, as a whole but not in part,] the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice to
the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of the Warrant Securities pursuant
to Indenture or the terms thereof. The unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby shall be cancelled and become
void on the 15th day prior to such date fixed for redemption.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints ______ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; 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 herein and such further powers and
authority 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.
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SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth 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 from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part
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 incurred
without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the reasonable costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, 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 of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it in its reasonable judgment, 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 or thing suffered
by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable
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law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Securities
or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be
deemed to prevent the Warrant Agent from acting as Trustee under the
Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability 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.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and
delivery hereof by the Warrant Agent) or with respect to the validity
or execution of any Warrant Certificates (except its countersignature
thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes
no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be
read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to
take any action hereunder which may tend to involve it in any expense
or liability, 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 of the Warrant Certificates 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
Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written
demand from a Holder of a Warrant Certificate 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
6.02, to make any demand upon the Company.
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SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf of
the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and 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.
Upon its resignation or removal, the Warrant Agent shall be entitled to the
payment by the Company of the compensation and to the reimbursement of all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail
15
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generally to pay its debts as they become due. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by it of such
appointment, the predecessor Warrant Agent shall, if not previously
disqualified by operation of law, cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) 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 the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable, provided that such action
shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
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(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the
then outstanding Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Warrants of any series,
reduces the amount receivable upon exercise, cancellation or expiration of the
Warrants other than in accordance with the antidilution provisions or other
similar adjustment provisions included in the terms of the Warrants, shortens
the period of time during which the Warrants of such series may be exercised,
or otherwise materially and adversely affects the exercise rights of the
affected Warrantholders or reduces the percentage of the number of outstanding
Warrants of such series, the consent of whose holders is required for
modification or amendment of this Agreement, may be made without the consent of
each Warrantholder affected thereby. In the case of Warrants evidenced by one
or more Global Warrant Certificates, the Company and the Warrant Agent shall be
entitled to rely upon certification in form satisfactory to each of them that
any requisite consent has been obtained from holders of beneficial ownership
interests in the relevant Global Warrant Certificate. Such certification may be
provided by participants of the Depositary acting on behalf of such beneficial
owners of Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by the Holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to _______,
Attention: _________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Donaldson, Lufkin
& Jenrette, Inc., 277 Park Avenue, New York, New York 10172, Attention:
_______________ (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
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SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. [Except
as otherwise provided in Section 3.03, nothing] [Nothing] in this Agreement
shall give to any person other than the Company, the Warrant Agent and the
Holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but 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 Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
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SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
[WARRANT AGENT]
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
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Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Warrants are not Prior to __________________, Warrants
immediately exercisable evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DONALDSON, LUFKIN & JENRETTE, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER [TIME, LOCATION], ON ____________
No._____________ _______________ Warrants
This certifies that ____________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [2:, subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined) to purchase, at any time [after
[time, location] on __________ and] on or before [time, location], on
_____________, _________ shares of [Title of Warrant Securities] (the "Warrant
Securities"), of Donaldson, Lufkin & Jenrette, Inc. (the "Company") on the
following basis: during the period from _____________, through and including
_____________, the exercise price of each Warrant will be ____________; during
the period from ____________, through and including ____________, the exercise
price of each Warrant will be _________ (the "Warrant Price"). No adjustment
shall be made for any dividends or other distributions, if any, on any Warrant
Securities issuable upon exercise of any Warrant. The holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the United States of
America][in applicable currency] [in cash] [by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] [in
immediately available funds], the Warrant Price for each Warrant exercised to
the Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its
A-1
<PAGE>
successor as warrant agent (the "Warrant Agent"), [or ________], which is, on
the date hereof, at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "Holder" as used herein shall mean the person in whose name at
the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4.01 of
the Warrant Agreement.
[Any whole number of] [The] Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form. [Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ___________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at ____________].
Transfer of this Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _________] by the registered owner or such owner's assigns, in person or by
an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
After countersignature by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or _________] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or the exercise of any voting rights.
This Warrant Certificate shall not be valid or binding for any purpose
until countersigned by the Warrant Agent.
A-2
<PAGE>
Dated as of ________________
DONALDSON, LUFKIN &
JENRETTE, INC.
By
----------------------------
Title:
Attest:
- ------------------------------
Countersigned:
- ------------------------------
____________, as Warrant Agent
By
----------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in United
States dollars][in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] [in immediately available funds], the Warrant Price in full for
Warrants exercised to [insert of name of Warrant Agent] [corporate trust
department] [insert address of Warrant Agent], Attn. ______________________ [or
________________], which [payment] [wire transfer] must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the
Holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________ Warrants,
evidenced by this Warrant Certificate, to purchase ________ shares of the
[Title of Warrant Securities] (the "Warrant Securities") of the Company and
represents that he has tendered payment for such Warrant Securities [in United
States dollars] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] [in immediately available funds] to the order of Donaldson, Lufkin &
Jenrette, Inc., c/o [insert name and address of Warrant Agent], in the amount
of ___________ in accordance with the terms hereof. The undersigned requests
that said principal amount of Warrant Securities be in fully registered form in
the authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
[If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.]
A-4
<PAGE>
Date:_____________________ Name___________________________________
__________________________ Address________________________________
(Insert Social Security or Other
Identifying Number of Holder) ________________________________
Signature Guaranteed
__________________________ Signature______________________________
(Signature must conform in all respects
to name of holder as specified on
the face of this Warrant
Certificate and must bear a
signature guarantee by a bank,
trust company or member broker
of the New York, Midwest or
Pacific Stock Exchange)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at ____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By mail at ____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-5
EXHIBIT 4.5.3
FORM OF PREFERRED STOCK WARRANT AGREEMENT
DONALDSON, LUFKIN & JENRETTE, INC.
and
---------------------,
as Warrant Agent
--------------------------
PREFERRED STOCK WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
--------------------
<PAGE>
TABLE OF CONTENTS1
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants..........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates................2
SECTION 1.03. Issuance of Warrant Certificates..............................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price.................................................4
SECTION 2.02. Duration of Warrants..........................................4
SECTION 2.03. Exercise of Warrants..........................................5
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates....................................6
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates....7
SECTION 3.03. Enforcement of Rights.........................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer.................7
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer.........................................8
SECTION 4.02. Treatment of Holders of Warrant Certificates..................9
SECTION 4.03. Cancellation of Warrant Certificates..........................9
- --------
1 The Table of Contents is not a part of the Agreement.
<PAGE>
PAGE
----
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations.....................10
SECTION 5.03. Resignation and Appointment of Successor......................12
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.....................................................14
SECTION 6.02. Notices and Demands to the Company and Warrant Agent..........14
SECTION 6.03. Addresses.....................................................15
SECTION 6.04. Applicable Law................................................15
SECTION 6.05. Delivery of Prospectus........................................15
SECTION 6.06. Obtaining of Governmental Approval............................15
SECTION 6.07. Persons Having Rights under Warrant Agreement.................15
SECTION 6.08. Headings......................................................16
SECTION 6.09. Counterparts..................................................16
SECTION 6.10. Inspection of Agreement.......................................16
SECTION 6.11. Notices to Holders of Warrants................................16
TESTIMONIUM..................................................................17
SIGNATURES...................................................................17
EXHIBIT A - Form of Warrant Certificate
ii
<PAGE>
PREFERRED STOCK WARRANT AGREEMENT2
THIS AGREEMENT dated as of between DONALDSON, LUFKIN & JENRETTE, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and ___________________________, a [bank] [trust company] duly
incorporated and existing under the laws of _________________, as Warrant Agent
(the "Warrant Agent"),
W I T N E S S E T H :
WHEREAS, the Company proposes to sell [Title of other securities being
offered (the "Offered Securities") with]3 one or more warrants (the "Warrants")
representing the right to purchase [title of such other securities purchasable
through exercise of Warrants] (the "Warrant Securities"), the Warrants to be
evidenced by Warrant certificates issued pursuant to this Agreement (the
"Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- --------
2 Complete or modify the provisions of this form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars in a foreign currency or in a composite
currency, including but not limited to the European Currency Unit.
3 Include if Warrants are being sold with Offered Securities.
<PAGE>
ARTICLE 1
ISSUANCE OF WARRANTS AND
EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be evidenced by one
or more Warrant Certificates. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
a Warrant Security in the principal amount of $_____ [and shall be initially
issued in connection with the issuance of the Offered Securities [1: and shall
be separately transferable immediately thereafter] [2: but shall not be
separately transferable until on and after ____________, 20 (the "Detachable
Date")]. The Warrants shall be initially issued with the Offered Securities,
and each Warrant shall evidence the right, subject to the provisions contained
herein and in the Warrant Certificates, to purchase [ ] shares of Warrant
Securities.4]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [the form to be the same as that of the Warrant Security in
connection with which the Warrant Certificate is issued], substantially in the
form set forth in Exhibit A hereto, shall be dated ___________, 20__ and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and 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 stock exchange on which the Warrants may be listed, or to
conform to usage. The chairman of the board of directors, the president, the
executive vice president or any senior vice president and the treasurer or any
assistant treasurer or the secretary or any assistant secretary shall execute
the Warrant Certficiates for the Company by facsimile or manual signature in
the name and on behalf of the Company. The seal of the Company, if any, shall
be reproduced on the Warrant Certificates. If an officer whose signature is on
a Warrant Certificate no longer
- --------
4 Include if Warrants are being sold with Offered Securities.
Bracketed language here and throughout this Agreement should be
inserted if Warrants are being sold with Offered Securities, as
follows:
1. If Warrants are immediately detachable from the Offered
Securities; and
2. If Warrants are detachable from the Offered Securities only
after the Detachable Date.
2
<PAGE>
holds that office at the time the Warrant Certificate is authenticated, the
Warrant Certificate shall nevertheless be valid.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate,
shall mean any person in whose name at the time such Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [2: or, prior to the Detachable Date, any person in whose name at the
time the Offered Security to which such Warrant Certificate is attached is
registered upon the register of the Offered Securities. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase a number not exceeding ________ aggregate
shares of Warrant Securities (except as provided in Sections 2.03, 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing ______
Warrants representing the right to purchase up to ______ shares of Warrant
Securities and shall deliver such Warrant Certificates to or upon the order of
the Company. Subsequent to such original issuance of the Warrant Certificates,
the Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is
3
<PAGE>
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer as hereinafter
provided.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such Warrants (printed,
lithographed, typewritten or otherwise produced, in each case in form
satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall
be issuable substantially in the form of the definitive Warrant Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge pursuant to and subject to the provisions of Section 4.01, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates definitive Warrant Certificates of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from _________, 20__
through and including __________, 20__, the exercise price of each Warrant will
be $_______. During the period from ___________, 20__ through and including
___________, 20__, the exercise price of each Warrant will be $________. Such
exercise price of Warrant Securities is referred to in this Agreement as the
"Warrant Price". No adjustment shall be made for any dividends or other
distributions, if any, on any Warrant Securities issuable upon the exercise of
any Warrant.
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised [in
whole but not in part] [in whole or in part] [at any time, as specified herein,
on or after [the date thereof] [_________, 20__] and at or before [time,
location] on ____________, 20__ (each day during such period may hereinafter be
referred to as an
4
<PAGE>
"Exercise Date")] [on [list of specific dates] (each, an "Exercise Date")], or
such later date as the Company may designate by notice to the Warrant Agent and
the Holders of Warrant Certificates (the "Expiration Date"). Each Warrant not
exercised at or before [time, location] on the Expiration Date shall become
void, and all rights of the Holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. During the period specified in Section
2.02, any whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant Certificates
evidencing such Warrants and by paying in full [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] the Warrant Price for each Warrant
exercised to the Warrant Agent at its corporate trust office at [address] [or
at __________], provided that such exercise is subject to receipt within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate evidencing each Warrant exercised with the form of election
to purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment for the
exercise of Warrants in an account of the Company maintained with it (or in
such other account as may be designated by the Company) and shall advise the
Company, by telephone or by facsimile transmission or other form of electronic
communication available to both parties, at the end of each day on which a
payment for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such advice to the
Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrants exercised, (ii) the
instructions
5
<PAGE>
of each Holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Securities to be issued upon such exercise,
(iii) delivery of any Warrant Certificates evidencing the balance, if any, of
the Warrants remaining after such exercise, and (iv) such other information as
the Company shall reasonably require.
As soon as practicable after the exercise of any Warrant, but subject to
receipt by the Warrant Agent of the Warrant Certificate evidencing such Warrant
as provided in this Section, the Company shall issue the Warrant Securities to
which such Holder is entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security 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.
Prior to the issuance of any Warrants there shall be reserved, and the
Company shall at all times keep reserved, out of its authorized but unissued
Warrant Securities, a number of shares sufficient to provide for the exercise
of the Warrant Certificates.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the Holder or any beneficial owner thereof to any of the rights of a
holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of dividends or other
distributions, if any, on Warrant Securities or to exercise any voting rights.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
6
<PAGE>
the Company of the ownership of and the loss, mutilation, theft or destruction
of any Warrant Certificate and of such security or indemnity as may be required
by the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any 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 relation
thereto 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, mutilated, stolen
or destroyed Warrant Certificate shall represent an additional contractual
obligation of the Company, whether or not the 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. 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,
mutilated, stolen or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the provisions
of this Agreement, any Holder of a Warrant Certificate, without the consent of
the Warrant Agent, the holder of any Warrant Securities or the Holder of any
other Warrant Certificate, may, in its own behalf and for its own benefit,
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 its Warrants in the manner provided in its Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at any
time there shall be a merger or consolidation of the Company or a conveyance or
transfer of its property and assets substantially as an entirety, then in any
such event the successor, if other than the Company, shall by an instrument of
assumption delivered to the Warrant Agent succeed to and be substituted for the
Company, with the same effect as if it had been named herein and in the Warrant
Certificates as the Company. The Company shall thereupon, except in the case of
a transfer by way of lease, be relieved of any further obligation hereunder and
under the Warrants and the Warrant Certificates, and the Company, as the
predecessor corporation, except in the case of a transfer by way of lease, may
thereupon or at any time thereafter be dissolved, wound up or liquidated. Such
7
<PAGE>
successor or assuming corporation may thereupon cause to be signed, and may
issue either in its own name or in the name of the Company, Warrant
Certificates evidencing any or all of the Warrants issuable hereunder which
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations
to deliver Warrant Securities upon exercise of the Warrants. All the Warrants
so issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such merger,
consolidation, conveyance or transfer, such changes in phraseology and form
(but not in substance) may be made in the Warrant Certificates representing the
Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel (who
shall be acceptable to the Warrant Agent) as conclusive evidence that any such
merger, consolidation, conveyance or transfer complies with the provisions of
this Section 3.04.
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which such Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security, shall operate also to transfer the
related Warrant Certificates. The transfer of the beneficial ownership of
Warrants and Warrant Securities hereunder shall be effected only as provided in
Section 4.01. On or after the Detachable Date, upon] surrender at the corporate
trust office of the Warrant Agent at [address] [or ___________], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other authorized denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided, however, that such other
Warrant Certificates shall evidence the same aggregate number of Warrants as
the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at __________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and
8
<PAGE>
transfers of outstanding Warrant Certificates upon surrender of such Warrant
Certificates to the Warrant Agent at its corporate trust office at [address] or
[_________] for exchange or registration of transfer, properly endorsed [or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent.]
(c) No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer.
(d) Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates, duly authorized and executed by
the Company, as so requested. The Warrant Agent shall not effect any exchange
or registration of transfer which will result in the issuance of a Warrant
Certificate, evidencing a fraction of a Warrant or a number of full Warrants
and a fraction of a Warrant.
(e) All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Each Holder of
a Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and every subsequent Holder of such Warrant
Certificate that until the transfer of such Warrant Certificate is registered
on the books of such Warrant Agent [2: or, prior to the Detachable Date, until
the transfer of the Offered Security to which such Warrant Certificate is
attached, is registered in the register of the Offered Securities], the Company
and the Warrant Agent may treat the registered Holder of such Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be
9
<PAGE>
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company elects to redeem [2: prior to the Detachable Date] [,
as a whole but not in part,] [2: the Offered Securities [or] [and]] the Warrant
Securities pursuant to the terms thereof, the Company may elect, and shall give
notice to the Warrant Agent of its election, to cancel the unexercised
Warrants, the Warrant Certificates and the rights evidenced thereby. Promptly
after receipt of such notice by the Warrant Agent, the Company shall, or, at
the Company's request, the Warrant Agent shall in the name of and at the
expense of the Company, give notice of such cancellation to the Holders of the
Warrant Certificates, such notice to be so given not less than 30 nor more than
60 days prior to the date fixed for the redemption of [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof. The unexercised Warrants, the Warrant Certificates and the
rights evidenced thereby shall be cancelled and become void on the 15th day
prior to such date fixed for redemption.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints __________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; 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 herein and such further
powers and authority 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 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth 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 from time to time of the Warrant
Certificates shall be subject:
10
<PAGE>
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including reasonable
attorneys' fees) incurred by the Warrant Agent without negligence, bad
faith or breach of this Agreement on its part 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 incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder, as well as the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, 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 of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it in its reasonable judgment, 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 or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not
the Warrant Agent hereunder.
11
<PAGE>
(f) No Liability for Interest. The Warrant Agent shall have no
liability 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.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution
of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, 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 of the
Warrant Certificates 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 Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a Holder of a Warrant Certificate 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 6.02, to make any
demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written
notice of its resignation to the Company, specifying the desired date on which
its
12
<PAGE>
resignation shall become effective; provided, however, that such date shall be
not less than 90 days after the date on which such notice is given unless the
Company agrees to accept shorter notice. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust
powers) by written instrument in duplicate signed on behalf of the Company, one
copy of which shall be delivered to the resigning Warrant Agent and one copy to
the successor Warrant Agent. The Company may, at any time and for any reason,
remove the Warrant Agent and appoint a successor Warrant Agent (qualified as
aforesaid) by written instrument in duplicate signed on behalf of the Company
and specifying such removal and the date when it is intended to become
effective, one copy of which shall be delivered to the Warrant Agent being
removed and one copy to the successor Warrant Agent. Any resignation or removal
of the Warrant Agent and any appointment of a successor Warrant Agent shall
become effective upon acceptance of appointment by the successor Warrant Agent
as provided in this subsection (b). In the event a successor Warrant Agent has
not been appointed and 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. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation and to the reimbursement of all reasonable
out-of-pocket expenses (including reasonable attorneys' fees) incurred by it
hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a successor
Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii)
shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
13
<PAGE>
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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) 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 the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Warrants
and the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in
the Warrant Certificates, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable, provided that such action shall
not affect adversely the interests of the Holders of the Warrant Certificates
or the beneficial owners of Warrants in any material respect.
(b) The Company and the Warrant Agent may modify or amend this Agreement
(by means of an agreement supplemental hereto or otherwise) with the consent of
Warrantholders holding not less than a majority in number of the then
outstanding Warrants of all series affected by such modification or amendment,
for any purpose; provided, however, that no such modification or amendment that
changes the exercise price of the Warrants of any series, reduces the amount
receivable upon exercise, cancellation or expiration of the Warrants other than
in accordance with the antidilution provisions or other similar adjustment
provisions
14
<PAGE>
included in the terms of the Warrants, shortens the period of time during which
the Warrants of such series may be exercised, or otherwise materially and
adversely affects the exercise rights of the affected Warrantholders or reduces
the percentage of the number of outstanding Warrants of such series, the
consent of whose holders is required for modification or amendment of this
Agreement, may be made without the consent of each Warrantholder affected
thereby.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to __________,
Attention: ___________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Donaldson, Lufkin
& Jenrette, Inc., 277 Park Avenue, New York, New York 10172, Attention:
_____________ (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions hereof and thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of
15
<PAGE>
the Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrant Securities issued upon exercise of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an
original, but 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 Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given by first
class mail prepaid at such Holder's address as it appears on the books of the
Warrant Agent.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
DONALDSON, LUFKIN & JENRETTE, INC.
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
[WARRANT AGENT]
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
17
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _____________, this Warrant
Securities with Warrants are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title of
Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
immediately exercisable evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DONALDSON, LUFKIN & JENRETTE, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER [TIME, LOCATION], ON _____________
No._________ _______________ Warrants
This certifies that ___________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [2:, subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate (as hereinafter defined),] to purchase, at any time [after
[time, location] on ___________ and] on or before [time, location], on
_____________, __________ shares of [Title of Warrant Securities] (the "Warrant
Securities"), of Donaldson, Lufkin & Jenrette, Inc. (the "Company") on the
following basis: during the period from ___________, through and including
_____________, the exercise price of each Warrant will be _____________; during
the period from _________, through and including _____________, the exercise
price of each Warrant will be ____________ (the "Warrant Price"). No adjustment
shall be made for any dividends or other distributions, if any, on any Warrant
Securities issuable upon exercise of any Warrant. The holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the United States of
America][in applicable currency] [in cash] [by certified check or official bank
check or by
A-1
<PAGE>
bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds], the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent"), [or __________], which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "Holder" as used herein shall mean [2:, prior to _________ (the
"Detachable Date"), the registered owner of the Company's [Title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
[Any whole number of] [The] Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form. [Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ___________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at ________________].
[2: Prior to ___________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, transfer of this] [1: Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or __________]
by the registered owner or such owner's assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.
[2: Except as provided in the immediately preceding paragraph, after]
[After] countersignature by the Warrant Agent and prior to the expiration of
this
A-2
<PAGE>
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or __________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or the exercise of any voting rights.
This Warrant Certificate shall not be valid or binding for any purpose
until countersigned by the Warrant Agent.
Dated as of __________
DONALDSON, LUFKIN &
JENRETTE, INC.
By
-----------------------------
Title:
Attest:
- ---------------------------------
Countersigned:
- ---------------------------------
____________, as Warrant Agent
By
-------------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in United
States dollars][in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] [in immediately available funds], the Warrant Price in full for
Warrants exercised to [insert of name of Warrant Agent] [corporate trust
department] [insert address of Warrant Agent], Attn. _______________ [or
______________], which [payment] [wire transfer] must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the
Holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________ Warrants,
evidenced by this Warrant Certificate, to purchase ______ shares of the [Title
of Warrant Securities] (the "Warrant Securities") of the Company and represents
that he has tendered payment for such Warrant Securities [in United States
dollars] [in applicable currency] [in cash] [by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire transfer] [in
immediately available funds] to the order of Donaldson, Lufkin & Jenrette,
Inc., c/o [insert name and address of Warrant Agent], in the amount of
___________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
[If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.]
A-4
<PAGE>
Date:_________________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) ______________________________
Signature Guaranteed
______________________________ Signature_____________________
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York, Midwest
or Pacific Stock Exchange)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
By mail at_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
A-5
EXHIBIT 4.5.4
===============================================================================
DONALDSON, LUFKIN & JENRETTE, INC.
and
_______________________________, as Warrant Agent
------------------------------------
UNIVERSAL WARRANT AGREEMENT
dated as of ____________
===============================================================================
<PAGE>
<TABLE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
UNIVERSAL WARRANTS
<S> <C>
SECTION 1.01. Ranking..........................................................................1
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.............................1
SECTION 1.03. Number Unlimited; Issuable in Series.............................................3
SECTION 1.04. Countersignature and Delivery of Warrant Certificates............................5
SECTION 1.05. Place of Exercise; Registration of Transfers and Exchanges.......................9
SECTION 1.06. Mutilated or Missing Warrant Certificates.......................................13
SECTION 1.07. Registered Holders..............................................................14
SECTION 1.08. Cancellation....................................................................15
SECTION 1.09. Additional Warrant Agents.......................................................15
SECTION 1.10. Appointment of Calculation Agents...............................................15
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. Duration and Exercise of Universal Warrants.....................................16
SECTION 2.02. Return of Money Held Unclaimed for Two Years....................................16
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder May Enforce Rights................................................17
SECTION 3.02. No Rights as Holder of Warrant Property Conferred by Universal
Warrants or Warrant Certificates............................................17
SECTION 3.03. Merger, Consolidation, Conveyance or Transfer...................................17
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Universal Warrants Acquired by the Company......................................18
SECTION 4.02. Payment of Taxes................................................................18
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent...................................................................19
SECTION 5.02. Condition of Warrant Agent's Obligations........................................19
i
<PAGE>
PAGE
SECTION 5.03. Resignation and Appointment of Successor........................................21
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.......................................................................23
SECTION 6.02. Notices and Demands to the Company and the
Warrant Agent...............................................................25
SECTION 6.03. Addresses for Notices...........................................................25
SECTION 6.04. Notices to Warrantholders.......................................................25
SECTION 6.05. Obtaining of Approvals..........................................................25
SECTION 6.06. Persons Having Rights under this Agreement......................................26
SECTION 6.07. Inspection of Agreement.........................................................26
SECTION 6.08. Officer's Certificates and Opinions of Counsel; Statements to be
Contained Therein...........................................................26
SECTION 6.09. Payments Due on Saturdays, Sundays and Holidays.................................27
SECTION 6.10. Judgment Currency...............................................................27
SECTION 6.11. Headings........................................................................28
SECTION 6.12. Counterparts....................................................................28
SECTION 6.13. Applicable Law..................................................................28
TESTIMONIUM....................................................................................30
SIGNATURES.....................................................................................30
Exhibit I -Form of Registered Call Warrant Certificate
Exhibit II -Form of Registered Put Warrant Certificate
ii
</TABLE>
<PAGE>
WARRANT AGREEMENT
THIS AGREEMENT, dated as of ___________, ____, between DONALDSON
LUFKIN & JENRETTE, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), and __________________, a New York
banking corporation (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time to time
of warrants (the "Universal Warrants") to purchase or sell (i) securities of an
entity unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies or
composite currencies or (iii) commodities (the property described in clauses
(i), (ii) and (iii), in relation to a Universal Warrant, being hereinafter
referred to as the "Warrant Property" applicable to such Universal Warrant) to
be issued in one or more series and in such number and with such terms as may
from time to time be authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and delivery of
this Agreement to provide, among other things, for the delivery and
administration of the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid agreement
according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. Ranking. The Universal Warrants are unsecured
contractual obligations of the Company and will rank pari passu with the
Company's other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) Certificates ("Warrant Certificates") evidencing the Universal Warrants of
each series shall be substantially in the form of Exhibits I and II hereto or
in such form (not inconsistent with this Agreement) as shall be established by
or pursuant to one or more Board Resolutions (as defined below) (as set forth
in a Board Resolution or, to the extent established pursuant to, rather than
set forth in, a
<PAGE>
Board Resolution, in an Officer's Certificate (as defined below) detailing such
establishment) or in one or more agreements supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement. The Warrant Certificates may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification or designation and such legends or endorsements as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and that are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any self-regulatory organization (an "SRO") on which the
Universal Warrants of such series may be listed, or of any securities
depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company by the chief financial officer, the treasurer or any
assistant treasurer or such other person specifically designated by the Board
of Directors to execute Warrant Certificates, which signature may or may not be
attested by the secretary or an assistant secretary of the Company. The
signature of any of such officers may be either manual or facsimile.
Typographical and other minor errors or defects in any such signature shall not
affect the validity or enforceability of any Warrant Certificate that has been
duly countersigned and delivered by the Warrant Agent.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Company to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the
Company or any committee of such Board duly authorized to act on its behalf for
the purposes of this Agreement.
"Officer's Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the Board of Directors, the president, the
executive vice president or any senior vice president and (ii) by the treasurer
or any assistant treasurer, or the secretary or any assistant secretary or such
other person authorized by the Board of Directors to execute any such
certificate and deliver it to the Warrant Agent.
(b) In case any officer of the Company who shall have signed a
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before such Warrant Certificate shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be such
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officer of the Company; and a Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
(c) Pending the preparation of final Warrant Certificates evidencing
Universal Warrants of any series, the Company may execute and the Warrant Agent
shall countersign and deliver temporary Warrant Certificates evidencing such
Universal Warrants (printed, lithographed, typewritten or otherwise produced,
in each case in form satisfactory to the Warrant Agent). Such temporary Warrant
Certificates shall be issuable substantially in the form of the final Warrant
Certificates but with such omissions, insertions and variations as may be
appropriate for temporary Warrant Certificates, all as may be determined by the
Company with the concurrence of the Warrant Agent. Such temporary Warrant
Certificates may contain such reference to any provisions of this Warrant
Agreement as may be appropriate. Every such temporary Warrant Certificate shall
be executed by the Company and shall be countersigned by the Warrant Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the final Warrant Certificates. Without unreasonable delay, the Company
shall execute and shall furnish final Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge, and the Warrant Agent shall countersign and deliver in exchange for
such temporary Warrant Certificates final Warrant Certificates evidencing a
like aggregate number of Universal Warrants of the same series and of like
tenor as those evidenced by such temporary Warrant Certificates. Until so
exchanged, such temporary Warrant Certificates and the Universal Warrants
evidenced thereby shall be entitled to the same benefits under this Warrant
Agreement as final Warrant Certificates and the Universal Warrants evidenced
thereby.
SECTION 1.03. Number Unlimited; Issuable in Series. (a) The aggregate
number of Universal Warrants that may be delivered under this Agreement is
unlimited.
(b) The Universal Warrants may be issued in one or more series. There
shall be established in or pursuant to one or more Board Resolutions (and to
the extent established pursuant to, rather than set forth in, a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more agreements supplemental hereto, prior to the initial
issuance of Universal Warrants of any series:
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(i) the designation of the Universal Warrants of the series, which
shall distinguish the Universal Warrants of the series from the
Universal Warrants of all other series;
(ii) any limit upon the aggregate number of the Universal Warrants
of the series that may be countersigned and delivered under this
Agreement (except for Universal Warrants countersigned and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Universal Warrants of the series);
(iii) the specific Warrant Property purchasable or salable upon
exercise of the Universal Warrants of the series, and the amount
thereof (or the method for determining the same);
(iv) the price at which the Universal Warrants of the series will
be issued and, if other than U.S. dollars, the coin or currency or
composite currency in which such issue price will be payable;
(v) whether the Universal Warrants of the series are warrants to
purchase ("call warrants") or warrants to sell ("put warrants") the
Warrant Property;
(vi) the price at which and, if other than U.S. Dollars, the coin
or currency or composite currency with which the Warrant Property may
be purchased or sold upon exercise of the Universal Warrants of the
series (or the method for determining the same);
(vii) whether the exercise price for the Universal Warrants of the
series may be paid in cash or by the exchange of any other security of
the Company, or both, or otherwise, and the method of exercise of the
Universal Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the series
is to be settled in cash or by delivery of the Warrant Property or
both, or otherwise;
(ix) the date on which the right to exercise the Universal Warrants
of the series shall commence and the date (the "Expiration Date") on
which such right shall expire or, if the Universal Warrants of the
series are not continuously exercisable throughout such period, the
specific date or dates on which they will be exercisable;
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(x) whether the Warrant Certificates representing the Universal
Warrants of the series will be in registered form ("Registered
Warrants") or bearer form ("Bearer Warrants") or both;
(xi) whether the Warrant Certificates evidencing any Registered
Warrants or Bearer Warrants of the series will be issued in global
form ("Global Warrant Certificates") or definitive form ("Definitive
Warrant Certificates") or both, and whether and on what terms (if
different from those set forth herein) Warrant Certificates in one
form may be converted into or exchanged for Warrant Certificates in
the other form;
(xii) any warrant agents, depositaries, authenticating or paying
agents, transfer agents or registrars or any determination or
calculation agents or other agents with respect to Universal Warrants
of the series; and
(xiii) any other terms of the Universal Warrants of the series (which
terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Universal Warrants of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Universal Warrants of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
SECTION 1.04. Countersignature and Delivery of Warrant Certificates.
(a) The Company may deliver Warrant Certificates evidencing Universal Warrants
of any series executed by the Company to the Warrant Agent for countersignature
together with the applicable documents referred to below in this Section, and
the Warrant Agent shall thereupon countersign and deliver such Warrant
Certificates to or upon the order of the Company (contained in the Issuer Order
(as defined below) referred to below in this Section) or pursuant to such
procedures acceptable to the Warrant Agent as may be specified from time to
time by an Issuer Order. Any terms of the Universal Warrants evidenced by such
Warrant Certificates may be determined by or pursuant to such Issuer Order or
such other procedures. If provided for in such procedures, such Issuer Order
may authorize countersignature and delivery pursuant to oral instructions from
the Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In countersigning such Warrant Certificates and accepting
the responsibilities under this Agreement in relation to the Universal Warrants
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evidenced by such Warrant Certificates, the Warrant Agent shall be entitled to
receive (in the case of subparagraphs 1.04(a)(ii), 1.04(a)(iii) and 1.04(a)(iv)
below only at or before the time of the first request of the Company to the
Warrant Agent to countersign Warrant Certificates in a particular form
evidencing Universal Warrants) and shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and setting
forth delivery instructions if the Warrant Certificates are not to be
delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or executed
supplemental agreement pursuant to which the forms and terms of the
Universal Warrants evidenced by such Warrant Certificates were
established;
(iii) an Officer's Certificate setting forth the forms and terms of
the Universal Warrants evidenced by such Warrant Certificates stating
that the form or forms and terms of the Universal Warrants evidenced
by such Warrant Certificates have been established pursuant to
Sections 1.02 and 1.03 and comply with this Agreement, and covering
such other matters as the Warrant Agent may reasonably request; and
(iv) At the option of the Company, either an Opinion of Counsel (as
defined below) or a letter addressed to the Warrant Agent permitting
it to rely on an Opinion of Counsel, substantially to the effect that:
(A) the forms of the Warrant Certificates have been duly
authorized and established in conformity with the provisions
of this Agreement;
(B) in the case of an underwritten offering, the terms
of the Universal Warrants have been duly authorized and
established in conformity with the provisions of this
Agreement and, in the case of an offering that is not
underwritten, certain terms of the Universal Warrants have
been established pursuant to a Board Resolution, an Officer's
Certificate or a supplemental agreement in accordance with
this Agreement, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all terms will have been
duly authorized by the Company and will have been established
in conformity with the provisions of this Agreement; and
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(C) when the Warrant Certificates have been executed by
the Company and countersigned by the Warrant Agent in
accordance with the provisions of this Agreement and
delivered to and duly paid for by the purchasers thereof,
subject to such other conditions as may be set forth in such
opinion of counsel, they will have been duly issued under
this Agreement and the Universal Warrants evidenced thereby
will be valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the State of New York and the federal law of
the United States, upon opinions of other counsel (copies of which
shall be delivered to the Warrant Agent), who shall be counsel
reasonably satisfactory to the Warrant Agent, in which case the
opinion shall state that such counsel believes he and the Warrant
Agent are entitled so to rely. Such counsel may also state that,
insofar as such opinion involves factual matters, such counsel has
relied, to the extent such counsel deems proper, upon certificates of
officers of the Company and its subsidiaries and certificates of
public officials.
"Issuer Order" means a written statement, request or order signed in
the name of the Company (i) by the chairman of the Board of Directors, the
president, the executive vice president or any senior vice president and (ii)
by the treasurer or any assistant treasurer, or the secretary or any assistant
secretary or such other person specifically designated by the Board of
Directors to execute any such written instrument, request or order.
"Opinion of Counsel" means an opinion in writing signed by Davis Polk
& Wardwell or by such other legal counsel, who may be an employee of or counsel
to the Company, and who shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to countersign
and deliver any Warrant Certificates under this Section if the Warrant Agent,
being advised by counsel, determines that such action may not lawfully be taken
by the Company or if the Warrant Agent in good faith determines that (i) such
action would expose the Warrant Agent to personal liability to existing
registered or
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beneficial holders of Universal Warrants (each, a "Warrantholder") or would
affect the Warrant Agent's own rights, duties or immunities under the Warrant
Certificates, the Universal Warrants, this Agreement or otherwise or (ii) the
terms of such Universal Warrants are administratively unacceptable to it.
(c) If the Company shall establish pursuant to Section 1.03 that the
Universal Warrants of a series are to be evidenced in whole or in part by one
or more Global Warrant Certificates, then the Company shall execute and the
Warrant Agent shall, in accordance with this Section and the Issuer Order with
respect to such series, countersign and deliver one or more Global Warrant
Certificates that (i) shall evidence all or part of the Universal Warrants of
such series issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary (as defined below) for such Universal Warrants or
the nominee of such Depositary, (iii) shall be delivered by the Warrant Agent
to such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Universal Warrants in definitive registered
form, this Warrant Certificate and the Universal Warrants evidenced hereby may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants of any
series that are or may be evidenced by one or more Global Warrant Certificates,
the person or persons designated as Depositary by the Company pursuant to
Section 1.03 hereof until a successor Depositary shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Depositary" shall mean or include each person who is then a Depositary
hereunder, and if at any time there is more than one such person, "Depositary"
as used with respect to the Universal Warrants of any such series shall mean
the Depositary with respect to that series.
(d) If so required by applicable law, each Depositary for a series of
Universal Warrants must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
(e) Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any purpose, and
no Universal Warrant evidenced thereby shall be exercisable, unless and until
such Warrant Certificate has been countersigned by the manual signature of an
authorized officer of the Warrant Agent. Such countersignature by an authorized
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<PAGE>
officer of the Warrant Agent upon any Warrant Certificate executed by the
Company in accordance with this Agreement shall be conclusive evidence that the
Warrant Certificate so countersigned and the Universal Warrants evidenced
thereby have been duly issued hereunder.
SECTION 1.05. Place of Exercise; Registration of Transfers and
Exchanges. (a) Except as otherwise established pursuant to Section 1.03 with
respect to Universal Warrants of a series, Universal Warrants may be presented
for exercise at the Warrant Agent's Window (as defined below) in accordance
with procedures to be established pursuant to Section 1.03.
(b) Except as otherwise provided herein or as established pursuant to
Section 1.03 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as
defined below), subject to such reasonable regulations as the Company or the
Warrant Agent may prescribe with respect to the Universal Warrants of such
series, upon surrender thereof at the Warrant Agent's Window (as defined
below), Attention: Transfer Department, duly endorsed by, or accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent and the Company duly executed by, the Registered Holder(s) (as
defined below) thereof or by the duly appointed legal representative thereof or
by a duly authorized attorney, such signature to be guaranteed by a bank or
trust company with a correspondent office in The City of New York or by a
broker or dealer that is a member of the National Association of Securities
Dealers, Inc. (the "NASD") or by a member of a national securities exchange or
in such other manner acceptable to the Warrant Agent and the Company. Upon any
such registration of transfer, one or more new Warrant Certificates of the same
series and like terms evidencing a like number of unexercised Universal
Warrants shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent.
(c) Except as otherwise established for a series of Universal
Warrants pursuant to Section 1.03, at the option of a Registered Holder,
Definitive Warrant Certificates may be exchanged for other Definitive Warrant
Certificates evidencing the same aggregate number of unexercised Universal
Warrants of the same series and of like tenor upon surrender to the Warrant
Agent of the Definitive Warrant Certificates to be exchanged at the Warrant
Agent's Window, Attention: ______________. The "Warrant Agent's Window" shall
be the window of the Warrant Agent maintained for purposes of transfer and
tender in the Borough of Manhattan, The City of New York (or at the address of
any additional agency established by the Company pursuant to Section 1.08
hereof, or at the address of any successor Warrant Agent (as provided in
Section 5.03)),
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which is, on the date of this Agreement, [___________________________
_____________]. If the Universal Warrants of any series are issued in both
registered and unregistered form, except as otherwise established for such
series pursuant to Section 1.03, at the option of the holder thereof, Warrant
Certificates evidencing Bearer Warrants of any series may be exchanged for
Definitive Warrant Certificates evidencing an equal number of unexercised
Registered Warrants of the same series and of like tenor upon surrender of such
Warrant Certificates evidencing Bearer Warrants to be exchanged at the Warrant
Agent's Window, Attention: Transfer Department. Unless otherwise established
for such series pursuant to Section 1.03, Registered Warrants of any series may
not be exchanged for Bearer Warrants of such series. Upon surrender of any
unexercised Warrant Certificate for exchange, the Warrant Agent shall cancel
such Warrant Certificate, and the Company shall execute, and the Warrant Agent
shall countersign and deliver, one or more new Warrant Certificates evidencing
a like number of unexercised Universal Warrants of the same series and of like
tenor.
(d) Universal Warrants evidenced by the Warrant Certificates issued
upon transfer or exchange pursuant to paragraph (b) or (c) of this Section
shall be valid obligations of the Company, constituting the same obligations of
the Company as the Universal Warrants evidenced by the Warrant Certificates
surrendered for transfer or exchange, and entitled to the same benefits under
this Agreement as were such Universal Warrants evidenced by the Warrant
Certificates prior to such surrender.
(e) Except as provided in Section 1.06, no service charge shall be
made for any registration of transfer or exchange of Warrant Certificates, 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 registration of
transfer or exchange of Warrant Certificates, other than exchanges pursuant to
this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants
evidenced by a Warrant Certificate the number of Universal Warrants exercised
shall be less than the total number of Universal Warrants evidenced by such
Warrant Certificate, there shall be issued to the Registered Holder thereof
(or, in the case of Bearer Warrants, the holder thereof) or his assignee a new
Warrant Certificate evidencing the number of Universal Warrants of the same
series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be
transferable by delivery.
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(h) Notwithstanding any other provision of this Agreement, unless and
until it is exchanged in whole or in part for Definitive Warrant Certificates,
a Global Warrant Certificate evidencing all or a portion of the Universal
Warrants of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
(i) If at any time the Depositary for any series of Universal
Warrants notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be eligible under this Agreement, the Company shall appoint a
successor Depositary with respect to such series. If a successor Depositary for
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 1.03 that such series be evidenced by one or more
Global Warrant Certificates shall no longer be effective and the Company will
execute, and the Warrant Agent, upon receipt of an Officer's Certificate for
the countersignature and delivery of Definitive Warrant Certificates evidencing
Universal Warrants of such series, will countersign and deliver Definitive
Warrant Certificates evidencing Universal Warrants of such series and of like
tenor in an aggregate number equal to the number of the unexercised Universal
Warrants represented by such Global Warrant Certificate or Certificates in
exchange for such Global Warrant Certificate or Certificates.
(j) If established pursuant to Section 1.03 with respect to a series
of Universal Warrants evidenced in whole or in part by one or more Global
Warrant Certificates, the Depositary for such series may surrender such Global
Warrant Certificate or Certificates in exchange in whole or in part for
Definitive Warrant Certificates evidencing Universal Warrants of the same
series and of like tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Warrant Agent
shall countersign and deliver, without service charge,
(i) to the person specified by such Depositary a new Definitive
Warrant Certificate of the same series and of like tenor in an
aggregate number equal to and in exchange for such person's beneficial
interest in the Universal Warrants evidenced by such Global Warrant
Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or
Certificates evidencing Universal Warrants of the same series and of
like
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tenor in number equal to the difference, if any, between the number of
unexercised Universal Warrants evidenced by the surrendered Global
Warrant Certificates and the number of unexercised Universal Warrants
evidenced by such Definitive Warrant Certificate countersigned and
delivered pursuant to clause 1.05(j)(i) above.
Upon the exchange of a Global Warrant Certificate for Definitive Warrant
Certificates, such Global Warrant Certificate shall be canceled by the Warrant
Agent or an agent of the Company or the Warrant Agent. Registered Definitive
Warrant Certificates issued in exchange for a Registered Global Warrant
Certificate pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the persons in whose names such Warrant Certificates are so
registered. Definitive Bearer Warrant Certificates issued in exchange for a
Global Bearer Warrant Certificate pursuant to this Section shall be issued in
such authorized denominations as the Depositary for such series, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The
Warrant Agent or such agent shall deliver such Warrant Certificates to or as
directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series of
Universal Warrants to the contrary, none of the Company, the Warrant Agent or
any agent of the Company or the Warrant Agent (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel)
shall be required to exchange any Bearer Warrant for a Registered Warrant if
such exchange would result in adverse Federal income tax consequences to the
Company under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Universal Warrants of such series are listed) where the
Bearer Warrants, if any, of each series may be presented for exercise and
payment. No payment on any Bearer Warrants will be made upon presentation of
such Bearer Warrant at an agency of the Company within the United States nor
will any payment be made by transfer to an account in, or by mail to an address
in, the United States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing, payments in United
States dollars with
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respect to Bearer Warrants of any series which are payable in United States
dollars may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York if such payment in United States dollars at
each agency maintained by the Company outside the United States for payment on
such Bearer Warrants is illegal or effectively precluded by exchange controls
or other similar restrictions.
(m) The Company may from time to time designate one or more
additional offices or agencies where the Universal Warrants of a series may be
presented for exercise and payment, where the Universal Warrants of that series
may be presented for exchange as provided in this Agreement and where the
Registered Universal Warrants of that series may be presented for registration
of transfer as in this Agreement provided, and the Company may from time to
time rescind any such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain the agencies
provided for in this Section. The Company will give to the Warrant Agent prompt
written notice of any such designation or rescission thereof.
SECTION 1.06. Mutilated or Missing Warrant Certificates. (a) If any
Warrant Certificate evidencing Universal Warrants of any series is mutilated,
lost, stolen or destroyed, the Company may in its discretion execute, and the
Warrant Agent may countersign and deliver, in exchange and substitution for the
mutilated Warrant Certificate, or in replacement for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate representing an equivalent
number of unexercised Universal Warrants of the same series and of like tenor,
bearing an identification number, if applicable, not contemporaneously
outstanding, but only (in case of loss, theft or destruction) upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant Certificate and security or indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may
prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated,
lost, stolen or destroyed Warrant Certificate have been or are about to be
exercised, or deemed to be exercised, the Company in its absolute discretion
may, instead of issuing a new Warrant Certificate, and subject to the
conditions set forth in clause 1.06(a) above, direct the Warrant Agent to treat
the same as if it had received the Warrant Certificate together with an
irrevocable exercise notice in proper form in respect thereof, as established
with respect to the Universal Warrants of such series.
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(c) The Universal Warrants evidenced by each new Warrant Certificate
issued pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall be original, additional contractual obligations of
the Company, and shall be entitled to the same benefits under this Agreement as
the Universal Warrants evidenced by the Warrant Certificate that was lost,
stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance
with this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 1.07. Registered Holders. (a) Prior to due presentment for
registration of transfer, the Company, the Warrant Agent, and any agent of the
Company or the Warrant Agent may deem and treat the person in whose name a
Warrant Certificate shall be registered in the Warrant Register (a "Registered
Holder") as the absolute owner of the Registered Warrants evidenced thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate) for any purpose whatsoever, and as the person entitled to exercise
the rights represented by the Registered Warrants evidenced thereby, and
neither the Company nor the Warrant Agent, nor any agent of the Company or the
Warrant Agent, shall be affected by any notice to the contrary. All payments on
account of any Registered Warrant to the Registered Holder, or upon his order,
shall be valid, and to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability of the Company for moneys paid upon such
Registered Warrant. This Section shall be without prejudice to the rights of
Warrantholders as described elsewhere herein.
(b) The Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may treat the holder of any Bearer Warrant as the absolute
owner of such Bearer Warrant for the purpose of exercising the rights
represented thereby and for all other purposes and neither the Company, the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary. All payments on account of such Bearer
Warrant made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon such Bearer Warrant. This Section shall be
without prejudice to the rights of Warrantholders as described elsewhere
herein.
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SECTION 1.08. Cancellation. All Universal Warrant Certificates
surrendered to the Warrant Agent for redemption or registration of transfer or
exchange shall be promptly cancelled by the Warrant Agent. The Company may at
any time deliver to the Warrant Agent for cancellation any Universal Warrant
Certificates previously countersigned and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Universal Warrant
Certificates so delivered shall, upon receipt by the Warrant Agent of an Issuer
Order, be promptly cancelled by the Warrant Agent. No Universal Warrant
Certificates shall be countersigned in lieu of or in exchange for any Universal
Warrant Certificates cancelled as provided in this Section, except as permitted
by this Agreement. All cancelled Universal Warrant Certificates held by the
Warrant Agent shall be disposed of in accordance with its customary procedures
and a certificate of their disposition shall be delivered by the Warrant Agent
to the Company, unless by Issuer Order the Company shall direct that cancelled
Universal Warrant Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire any
Universal Warrant Certificate, such acquisition shall not operate as a
cancellation of such Universal Warrant Certificate unless and until such
Universal Warrant Certificate is delivered to the Warrant Agent for the purpose
of cancellation.
SECTION 1.09. Additional Warrant Agents. Whenever the Company shall
appoint a warrant agent other than the Warrant Agent with respect to the
Universal Warrants of any series, it will cause such warrant agent to execute
and deliver to the Warrant Agent an instrument in which such agent shall agree
with the Warrant Agent, subject to the provisions of this Section,
(a) that it will hold all Warrant Property received by it as such
agent for any payment with respect to the Universal Warrants of such series in
trust for the benefit of the Warrantholders of such series if any, or of the
Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by the
Company to make any payment with respect to the Universal Warrants of such
series when the same shall be due and payable.
The Company will, on or prior to each date of any payment of Universal
Warrants of any such series, deposit with the Warrant Agent or any such
additional warrant agent a sum sufficient to make such payment, and the Company
will promptly notify the Warrant Agent of any failure to take such action with
respect to any such additional warrant agent.
SECTION 1.10. Appointment of Calculation Agents. Pursuant to Section
1.03 hereof, the Company may, in connection with any series of Universal
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Warrants appoint Donaldson, Lufkin & Jenrette Securities Corporation or any
other person or entity as Calculation Agent to make any calculations as may be
required pursuant to the terms of any such series of Universal Warrants. Any
such Calculation Agent shall act as an independent expert and, unless otherwise
provided by this Agreement, its calculations and determinations under this
Agreement shall, absent manifest error, be final and binding on the Company,
the Warrant Agent and the Warrantholders. Any such calculations will be made
available to a Warrantholder for inspection at the Warrant Agent's Office.
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. Duration and Exercise of Universal Warrants. All terms
with respect to duration and exercise of Universal Warrants will be established
pursuant to Section 1.03 for each series of Universal Warrants.
SECTION 2.02. Return of Money Held Unclaimed for Two Years. Except as
otherwise provided herein, any money or other assets deposited with or paid to
the Warrant Agent for the payment of any Universal Warrants and not paid but
remaining unclaimed for two years after the date upon which such money or other
assets shall have become due and payable shall be repaid by the Warrant Agent
to the Company, at the Company's request pursuant to an Officer's Certificate,
and the holders of such Universal Warrants shall thereafter look only to the
Company for any payment which such holders may be entitled to collect and all
liability of the Warrant Agent with respect to such money shall thereupon
cease; provided that the Warrant Agent, before making any such repayment, may
(but shall not be obligated to) at the expense of the Company notify (i) in the
case of Registered Warrants evidenced by Definitive Warrant Certificates, the
Registered Holders, (ii) in the case of Warrants evidenced by one or more
Global Warrant Certificates, the participants of the Depositary, and (iii) in
the case of Bearer Warrants evidenced by Definitive Warrant Certificates, the
holders thereof, in each case as provided in Section 6.04, that said money has
not been so applied and remains unclaimed and that after a date named in the
notification any unclaimed balance of said money then remaining will be
returned to the Company.
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ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder May Enforce Rights. Notwithstanding any of
the provisions of this Agreement, any Warrantholder may, without the consent of
the Warrant Agent, the Depositary, any participant of the Depositary, any other
Warrantholder, the holder of any Warrant Property or, if applicable, the common
depositary for Morgan Guaranty Trust Company of New York, Brussels Office, or
its successor, as operator of the Euroclear System and Clearstream Banking SA,
or its successor, in and for its own behalf, 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 its Universal
Warrants as provided in this Agreement and established with respect to such
Universal Warrants pursuant to Section 1.03.
SECTION 3.02. No Rights as Holder of Warrant Property Conferred by
Universal Warrants or Warrant Certificates. No Warrant Certificate or Universal
Warrant evidenced thereby shall entitle the holder or any beneficial owner
thereof to any of the rights of a holder or beneficial owner of Warrant
Property, including, without limitation, the right to receive the payment of
principal of (premium, if any) or interest, if any, on Warrant Property or to
vote or to enforce any rights under any documents governing Warrant Property.
SECTION 3.03. Merger, Consolidation, Conveyance or Transfer. (a) If at
any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety,
then in any such event the successor, if other than the Company, shall by an
instrument of assumption delivered to the Warrant Agent succeed to and be
substituted for the Company, with the same effect as if it had been named
herein and in the Warrant Certificates as the Company. The Company shall
thereupon, except in the case of a transfer by way of lease, be relieved of any
further obligation hereunder and under the Universal Warrants and the Warrant
Certificates, and the Company, as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor and assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the
Universal Warrants issuable hereunder that theretofore shall not have been
signed by the Company. All the Universal Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement as the
Universal Warrants theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Universal Warrants had been
issued at the date of the execution hereof. In any case of any such merger,
consolidation, conveyance or transfer, such changes in phraseology
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and form (but not in substance) may be made in the Warrant Certificates
representing the Universal Warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, conveyance, transfer or
assumption complies with the provisions of this Section.
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Universal Warrants Acquired by the Company. (a) In the
event the Company shall purchase or otherwise acquire Universal Warrants, such
Universal Warrants may, at the option of the Company, be (i) in the case of
Bearer Warrants or Registered Warrants evidenced by Definitive Warrant
Certificates, delivered to the Warrant Agent, and if so delivered, the Warrant
Agent shall promptly cancel such Universal Warrants on the records of the
Warrant Agent or (ii) in the case of Warrants evidenced by one or more Global
Warrant Certificates, surrendered free through a participant of the Depositary
to the Depositary for credit to the account of the Warrant Agent maintained at
the Depositary, and if so credited, the Warrant Agent shall promptly note the
cancellation of such Universal Warrants by notation on the records of the
Warrant Agent and the Warrant Agent shall cause its records to be marked to
reflect the reduction in the number of Universal Warrants evidenced by the
Global Warrant Certificate or Certificates by the number of Universal Warrants
so canceled promptly after such account is credited. Universal Warrants
acquired by the Company may also, at the option of the Company, be resold by
the Company directly or to or through any of its affiliates in lieu of being
surrendered to the Warrant Agent or credited to its account. No Warrant
Certificate shall be countersigned in lieu of or in exchange for any Universal
Warrant that is canceled as provided herein, except as otherwise expressly
permitted by this Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent under
this Agreement shall be disposed of by the Warrant Agent in accordance with its
customary procedures unless otherwise directed by the Company, and the Warrant
Agent shall deliver a certificate of disposition to the Company evidencing the
same.
SECTION 4.02. Payment of Taxes. The Company will pay all stamp,
withholding and other duties, if any, attributable to the initial issuance of
each series or tranche of Universal Warrants; provided, however, that, anything
in this Agreement to the contrary notwithstanding, the Company shall not be
required to
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pay any tax or other governmental charge that may be payable in respect of any
transfer involving any beneficial or record interest in, or ownership interest
of, any Universal Warrants or Warrant Certificates.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints _________
________________ as Warrant Agent of the Company in respect of the Universal
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 this
Agreement and such further powers and authority to act on behalf of the Company
as the Company may hereafter grant to or confer upon it with its consent. All
of the terms and provisions with respect to such powers and authority contained
in any Warrant Certificate are subject to and governed by the terms and
provisions hereof.
SECTION 5.02. Condition of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth 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 from time to time of the Universal
Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including attorneys' fees and expenses) incurred by the
Warrant Agent without negligence or bad faith on its part in connection with
the services rendered by it hereunder. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense (including reasonable attorneys' fees and expenses) incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of liability in
the premises. The obligations of the Company under this Section shall survive
the expiration of all Universal Warrants issued under this Agreement.
(b) In acting under this Agreement, 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 Warrantholders.
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(c) The Warrant Agent may consult with counsel satisfactory to it
(including counsel to the Company), and the opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in reliance upon
any notice, direction, consent, certificate, affidavit, opinion, 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) The Warrant Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Universal Warrants or
other obligations of the Company, with the same rights that it or they would
have if it were not the Warrant Agent hereunder and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on behalf of, or as depositary,
trustee or agent for, any committee or body of owners or holders of Universal
Warrants or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest
on any monies at any time received by it pursuant to any of the provisions of
this Agreement nor shall it be obligated to segregate such monies from other
monies held by it, except as required by law. The Warrant Agent shall not be
responsible for advancing funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon) shall be taken as
the statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent. The
Warrant Agent shall
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not be under any obligation to take any action hereunder likely to involve it
in any expense or liability, the payment of which is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or under any
duty or responsibility for the application by the Company of any proceeds of
the issuance of any 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 in this Agreement or in any Warrant
Certificate or in the case of the receipt of any written demand from a holder
of a Universal Warrant 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 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the
Universal Warrants, that there shall at all times be a Warrant Agent hereunder
with respect to each series of Universal Warrants until all the Universal
Warrants of such series are no longer outstanding or until monies for the
payment of all outstanding Universal Warrants of such series, if any, shall
have been paid to the Warrant Agent and shall have been returned to the Company
as provided in Section 2.02, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with
respect to any series of Universal Warrants by giving written notice to the
Company of such intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of a successor
Warrant Agent with respect to such series and acceptance of such appointment by
such successor Warrant Agent as hereinafter provided. The Warrant Agent
hereunder may be removed with respect to any series of Universal Warrants 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. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent with respect to such series (which shall be a banking institution
organized under the laws of the United States of America or one of the states
thereof, have a combined capital and surplus of at least $50,000,000 (as set
forth in its most recent reports of condition published pursuant to law or to
the requirements of any United States federal or state regulatory or
supervisory authority) and having an office in the Borough of Manhattan, The
City of New York) and the acceptance of such appointment by such successor
Warrant Agent. In the event a successor Warrant Agent has not been appointed
and 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 with respect to such
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series. The obligation 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 with respect to any series of Universal Warrants.
(c) In case at any time the Warrant Agent with respect to any series
of Universal Warrants shall give notice of its intent to resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, 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 of all or any
substantial part of its property shall be appointed, 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 promptly 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 with respect to such series.
(d) Any successor Warrant Agent appointed hereunder with respect to
any series of Universal Warrants 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 with respect to such series hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor
(including, without limitation, the Warrant Register), as Warrant Agent with
respect to such series hereunder.
(e) If a successor Warrant Agent is appointed with respect to the
Universal Warrants of one or more (but not all) series, the Company, the
predecessor Warrant Agent and each successor Warrant Agent with respect to the
Universal Warrants of any applicable series shall execute and deliver an
agreement supplemental hereto that shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers and duties
of the predecessor Warrant Agent with respect to the Universal Warrants of any
series as to which the predecessor Warrant Agent is not retiring shall continue
to be vested in the predecessor Warrant Agent, and shall add to or change any
of the
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provisions of this Agreement as shall be necessary to provide for or facilitate
the administration of the Universal Warrants hereunder by more than one Warrant
Agent, it being understood that nothing herein or in such supplemental
agreement shall constitute such Warrant Agents Co-Warrant Agents of the same
Universal Warrants and that each such Warrant Agent shall be a Warrant Agent
with respect to separate series of Universal Warrants.
(f) 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 the corporate agency assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent
under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the
Universal Warrants of any series may be amended (by means of an agreement
supplemental hereto or otherwise) by the Company and the Warrant Agent, without
the consent of the Warrantholders of any series of Universal Warrants, (i) for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contained herein or therein, (ii) to
establish the form or terms of Warrant Certificates or Universal Warrants of
any series as permitted by Sections 1.02 and 1.03, (iii) to evidence and
provide for the acceptance of appointment hereunder by a successor Warrant
Agent with respect to the Universal Warrants of any series and to add to or
change any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the Universal Warrants hereunder by
more than one Warrant Agent pursuant to Section 5.03, or (iv) in any other
manner which the Company may deem necessary or desirable and which will not
materially and adversely affect the interests of the Warrantholders of such
series.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of Warrantholders holding not less than a majority in number of the
then outstanding Universal Warrants of all series affected by such modification
or amendment, for any purpose; provided, however, that no such modification or
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amendment that changes the exercise price of the Universal Warrants of any
series, shortens the period of time during which the Universal Warrants of such
series may be exercised, or otherwise materially and adversely affects the
exercise rights of the affected Warrantholders or reduces the percentage of the
number of outstanding Universal Warrants of such series, the consent of whose
holders is required for modification or amendment of this Agreement, may be
made without the consent of each Warrantholder affected thereby. In the case of
Universal Warrants evidenced by one or more Global Warrant Certificates, the
Company and the Warrant Agent shall be entitled to rely upon certification in
form satisfactory to each of them that any requisite consent has been obtained
from holders of beneficial ownership interests in the relevant Global Warrant
Certificate. Such certification may be provided by participants of the
Depositary acting on behalf of such beneficial owners of Universal Warrants,
provided that any such certification is accompanied by a certification from the
Depositary as to the Universal Warrant holdings of such participants.
(c) An amendment that changes or eliminates any provision of this
Agreement that has expressly been included solely for the benefit of one or
more particular series of Universal Warrants, or that modifies the rights of
Warrantholders of such series with respect to such provision, shall be deemed
not to affect the rights under this Agreement of the Warrantholders of any
other series.
(d) Upon the request of the Company, accompanied by a copy of a Board
Resolution (which Board Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) authorizing the
execution of any such amendment, and upon the filing with the Warrant Agent of
evidence of the consent of Warrantholders as aforesaid, the Warrant Agent shall
join with the Company in the execution of such amendment unless such amendment
affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise, in which case the Warrant Agent may in its discretion,
but shall not be obligated to, enter into such amendment. In executing, or
accepting the additional duties created by, any amendment permitted by this
Article, the Warrant Agent shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement. The fact and date
of the execution of any consent of Warrantholders, or the authority of the
Person executing the same, may be proved in any manner which the Warrant Agent
(with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the Warrantholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
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SECTION 6.02. Notices and Demands to the Company and the Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by any Warrantholder pursuant to the provisions of this Agreement or
the terms of the Universal Warrants of any series, the Warrant Agent shall
promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses for Notices. Any communications to the Warrant
Agent with respect to this Agreement shall be in writing addressed to
[____________________________, Attention: _______________________] (the
"Warrant Agent's Office") and any communications to the Company with respect to
this Agreement shall be addressed to Donaldson, Lufkin & Jenrette, Inc., 277
Park Avenue, New York, New York 10172, Attention: Treasurer (or in each case to
such other address as shall be given in writing to the other party hereto).
SECTION 6.04. Notices to Warrantholders. The Company may cause to have
notice given to the Warrantholders of any series by providing the Warrant Agent
with a form of notice to be distributed by (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Warrant Agent to
Registered Holders by first class mail, (ii) in the case of Warrants evidenced
by one or more Global Warrant Certificates, the Depositary to be distributed by
the Depositary to its participants in accordance with the custom and practices
of the Depositary or (iii) in the case of Bearer Warrants evidenced by
Definitive Warrant Certificates, publication at least once in an Authorized
Newspaper (as defined below) in The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and, in the case of Western Europe, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, and Western Europe, as applicable. If it shall be impractical in the
opinion of the Warrant Agent to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given with the approval of the Warrant Agent shall
constitute a sufficient publication of such notice.
SECTION 6.05. Obtaining of Approvals. The Company will from time to
time take all action that may be necessary to obtain and keep effective any
and all filings or notices under applicable law, which may be or become
required in
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connection with the issuance, sale, trading, transfer or delivery of the
Warrant Certificates or the exercise of the Universal Warrants.
SECTION 6.06. Persons Having Rights under this 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 Warrantholders 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
contained in this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent, their respective successors and the Warrantholders.
SECTION 6.07. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the Warrant Agent's Office for
inspection by the Warrantholders, participants of the Depositary certified as
such by the Depositary or any person certified by any such participant to be an
indirect participant of the Depositary or any person certified by any such
participant to be a beneficial owner of a Universal Warrant, in each case, on
behalf of whom such participant holds Universal Warrants.
SECTION 6.08. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. (a) Each certificate or opinion provided
for in this Agreement and delivered to the Warrant Agent with respect to
compliance with a condition or covenant provided for in this Agreement shall
include (i) a statement that the person making such certificate or opinion has
read such covenant or condition, (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (iii) a statement that, in
the opinion of such person, such person has made such examination or
investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with
and (iv) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Company, upon the
certificate, statement or opinion of or representations by an
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officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the
matters upon which such officer's certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
(c) Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Company, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which such
officer's or counsel's, as the case may be, certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate or opinion of any
independent firm of public accountants filed with and directed to the Warrant
Agent shall contain a statement that such firm is independent.
SECTION 6.09. Payments Due on Saturdays, Sundays and Holidays. If the
date fixed for any payment with respect to the Universal Warrants of any series
appertaining thereto shall not be a Business Day (as defined below), then such
payment need not be made on such date, but may be made on the next succeeding
Business Day with same force and effect as if made on the date fixed, and no
interest shall accrue for the period after such date.
"Business Day" means, with respect to any Universal Warrant, a
Business Day as established pursuant to Section 1.03 hereof or if the term
Business Day is not so specified, Business Day means any day that is not a
Saturday or Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law,
regulation or executive order to be closed.
SECTION 6.10. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Universal Warrants of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Warrant Agent could purchase in The City of
New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day (as defined below), in which event, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal
27
<PAGE>
banking procedures the Warrant Agent could purchase in The City of New York the
Required Currency with the Judgment Currency on the last New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Agreement and the terms of the Universal Warrants of
such series to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause 6.10(a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum
due under this Agreement. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 6.11. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.13. Applicable Law. This Agreement and each Universal
Warrant shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State, excluding choice of law provisions.
28
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
DONALDSON, LUFKIN & JENRETTE,
INC.
By:
---------------------------------
Name:
Title:
[------------------------------]
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT I
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal
Warrants in definitive registered form, this Warrant Certificate and the
Universal Warrants evidenced hereby may not be transferred except as a whole by
the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.]1
DONALDSON, LUFKIN & JENRETTE, INC.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO
_____]1
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
- --------
1 Applies to global warrant certificates.
I-1
<PAGE>
This Warrant Certificate certifies that __________, or registered
assigns, is the Registered Holder of the number of [Designation of Universal
Warrants] (the "Warrants") [specified above]2[specified on Schedule A hereto]3.
Upon receipt by the Warrant Agent of this Warrant Certificate, the exercise
notice on the reverse hereof (or an exercise notice in substantially identical
form delivered herewith)(the "Exercise Notice"), duly completed and executed,
and the Call Price per Warrant set forth above, in the form set forth above,
for each Warrant to be exercised (the "Exercise Property") at the Warrant
Agent's Window, Attention: Tender Department, in the Borough of Manhattan, The
City of New York, each Warrant evidenced hereby entitles the Registered Holder
hereof to receive, subject to the terms and conditions set forth herein and in
the Warrant Agreement (as defined below), from Donaldson, Lufkin & Jenrette,
Inc. (the "Company") the amount and form of property (the "Warrant Property")
specified above. Warrants will not entitle the Warrantholder to any of the
rights of the holders of any of the Warrant Property.
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 in this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent.
- --------
2 Applies to definitive warrant certificates 3 Applies to global warrant
certificates
3 Applies to global warrant certificates.
I-2
<PAGE>
IN WITNESS WHEREOF, Donaldson, Lufkin & Jenrette, Inc. has caused
this instrument to be duly executed.
Dated: DONALDSON, LUFKIN & JENRETTE,
INC.
By:
--------------------------------
Name:
Title:
Attest:
By:
Secretary
Countersigned as of the date above
written:
[___________________________________],
as Warrant Agent
By:
---------------------------------
Authorized Officer
I-3
<PAGE>
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
DONALDSON, LUFKIN & JENRETTE, INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of ___________, ___ (the "Warrant
Agreement"), between the Company and [____________________] (the "Warrant
Agent") and are subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions each Warrantholder consents by
acceptance of this Warrant Certificate or a beneficial interest therein and
which Warrant Agreement is hereby incorporated by reference in and made a part
of this Warrant Certificate. Without limiting the foregoing, all capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Warrant Agreement. A copy of the Warrant Agreement is on file at the
Warrant Agent's Office. The Warrants constitute a separate series of Universal
Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and
rank pari passu with the Company's other unsecured contractual obligations and
with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each
Warrant may be exercised during the dates of exercise set forth on the face
hereof by delivering or causing to be delivered this Warrant Certificate, the
Exercise Notice, duly completed and executed, and the Exercise Property for
each such Warrant to the Warrant Agent's Window, in the Borough of Manhattan,
The City of New York, which is, on the date hereof (unless otherwise specified
herein), [__________________________________________________________________,
Attention: __________________,] or at such other address as the Warrant Agent
may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the
Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
I-4
<PAGE>
[Designation of Universal Warrants]
Exercise Notice
[Warrant Agent
Name and Address]
Attention: [________________]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's
name, representing a number of Warrants at least equal to the number of
Exercised Warrants, and the Exercise Property with respect thereto.
The Registered Holder hereby directs the Warrant Agent (a) to deliver
the Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the number of
Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ------------------------------
(Registered Holder)
By:
---------------------------
Authorized Signature
Address:
Telephone:
I-5
<PAGE>
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global
Universal Warrant is __________. In accordance with the Universal Warrant
Agreement dated as of ________, 20__ between the Issuer and
_______________________, as Warrant Agent, the following reductions as a result
of the exercise of the number of Universal Warrants indicated below have been
made:
Reduced Notation
Number Made by
Number of Outstanding or on
Date of Universal Following Behalf of
Exchange Warrants Such Warrant
of Excise Exercised Exercise Agent
--------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
-------- --------- ----------- ---------
I-6
<PAGE>
EXHIBIT II
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal Warrants in
definitive registered form, this Warrant Certificate and the Universal Warrants
evidenced hereby may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.]1
DONALDSON, LUFKIN & JENRETTE, INC.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO
____]1
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF
DETERMINING SAME):
[WARRANT PROPERTY:]2
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:]2
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY
PER WARRANT:]2
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE
DELIVERED FOR SALE UPON EXERCISE OF WARRANTS:]2
- --------
1 Applies to global warrant certificates.
2 Only if the terms of the Warrants contemplate that the holder may
deliver Warrant Property to exercise the Warrants.
II-1
<PAGE>
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered
assigns, is the Registered Holder of the number of [Designation of Universal
Warrants] (the "Warrants") [specified above]1 [specified on Schedule A
hereto]2. Upon receipt by the Warrant Agent of this Warrant Certificate, the
exercise notice on the reverse hereof (or an exercise notice in substantially
identical form delivered herewith)(the "Exercise Notice"), duly completed and
executed, and the Amount of Warrant Property saleable per Warrant set forth
above, adjusted, if applicable, as set forth above, for each Warrant to be
exercised, delivered as set forth above at the Warrant Agent's Window,
Attention: _________________, in the Borough of Manhattan, The City of New York
(which is, on the date hereof, ___________ ______________________________,
Attention: ____________________), each Warrant evidenced hereby entitles the
Registered Holder hereof to receive, subject to the terms and conditions set
forth herein and in the Warrant Agreement (as defined below), from Donaldson,
Lufkin & Jenrette, Inc. (the "Company") the [Cash Settlement Value][Put Price]3
per Warrant specified above.
Unless otherwise indicated above, a Warrant will not require or
entitle a Warrantholder to sell or deliver to the Company, nor will the Company
be under any obligation to, nor will it, purchase or take delivery from any
Warrantholder of, any Warrant Property, and upon exercise of a Warrant, the
Company will make only a cash payment in the amount of the Cash Settlement
Value or Put Price per Warrant. Warrantholders will not receive any interest on
any Cash Settlement Value.
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 in this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent.
- --------
1 Applies to definitive warrant certificates.
2 Applies to global warrant certificates.
3 Only if the terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
II-2
<PAGE>
IN WITNESS WHEREOF, Donaldson, Lufkin & Jenrette, Inc. has caused
this instrument to be duly executed.
Dated: DONALDSON, LUFKIN & JENRETTE,
INC.
By:
--------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Secretary
Countersigned as of the date above
written:
[______________________________],
as Warrant Agent
By:
--------------------------------
Authorized Officer
II-3
<PAGE>
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
DONALDSON, LUFKIN & JENRETTE, INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Universal Warrants issued by the Company pursuant to a
Universal Warrant Agreement, dated as of ___________, ___ (the "Universal
Warrant Agreement"), between the Company and [_________________] (the "Warrant
Agent") and are subject to the terms and provisions contained in the Universal
Warrant Agreement, to all of which terms and provisions each Warrantholder
consents by acceptance of this Warrant Certificate or a beneficial interest
therein and which Universal Warrant Agreement is hereby incorporated by
reference in and made a part of this Warrant Certificate. Without limiting the
foregoing, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Universal Warrant Agreement. A copy of the
Universal Warrant Agreement is on file at the Warrant Agent's Office. The
Warrants constitute a separate series of Universal Warrants under the Universal
Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and
rank pari passu with the Company's other unsecured contractual obligations and
with the Company's unsecured and unsubordinated debt.
The Warrant Agreement and the terms of the Warrants are subject to
amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
II-4
<PAGE>
[Designation of Universal Warrants]
Exercise Notice
[Warrant Agent
Name & Address]
Attention: [__________________]
The undersigned (the "Registered Holder") hereby irrevocably exercises
__________ Warrants (the "Exercised Warrants") and delivers to you herewith a
Warrant Certificate or Certificates, registered in the Registered Holder's
name, representing a number of Warrants at least equal to the number of
Exercised Warrants[, and the Warrant Property with respect thereto].1
The Registered Holder hereby directs the Warrant Agent (a) to deliver
the [Cash Settlement Value][Put Price]* per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the number of
Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant
Certificate representing the unexercised Warrants to:
Dated: ------------------------------
(Registered Holder)
By:
---------------------------
Authorized Signature
Address:
Telephone:
- --------
1 Only if terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
II-5
<PAGE>
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global
Universal Warrant is __________. In accordance with the Universal Warrant
Agreement dated as of _______, 20__ between the Issuer and ________________, as
Warrant Agent, [as Collateral Agent] the following reductions as a result of
the exercise of the number of Universal Warrants indicated below have been
made:
Reduced Notation
Number Made by
Number of Outstanding or on
Date of Universal Following Behalf of
Exchange or Warrants Such Warrant
Exercise Exercised Exercise Agent
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
- ----------- --------- ----------- ---------
II-6
EXHIBIT 5.1
[LETTERHEAD OF DPW]
March 1, 2000
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as counsel to Donaldson, Lufkin & Jenrette, Inc. (the
"Company") in connection with the Company's Registration Statement on Form S-3
(the "Registration Statement") filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, for the
registration of the sale by the Company from time to time of up to
$3,000,000,000 aggregate principal amount of senior debt securities (the
"Senior Debt Securities"), subordinated debt securities (the "Subordinated Debt
Securities"), preferred stock, par value $0.01 per share (the "Preferred
Stock") and warrants ("Warrants") of the Company. The Senior Debt Securities,
Subordinated Debt Securities, Preferred Stock and Warrants are herein
collectively referred to as the "Securities." The Senior Debt Securities are to
be issued pursuant to an Indenture (the "Senior Indenture") dated June 8, 1998
between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee").
The Subordinated Debt Securities are to be issued pursuant to an Indenture (the
"Subordinated Indenture" and collectively with the Senior Indenture, the
"Indentures") to be entered into between the Company and the Trustee.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the Subordinated Indenture and any supplemental indenture to be
entered into in connection with the issuance of Senior Debt Securities or
Subordinated Debt Securities have been duly authorized, executed and delivered
by the Company and the Trustee, the specific terms of a particular Senior Debt
Security or Subordinated Debt Security, as the case may be, have been duly
authorized and established in accordance with the applicable Indenture, and
such Senior Debt Security or Subordinated Debt Security, as the case may be,
has been duly authorized, executed, authenticated, issued and delivered against
payment therefor in accordance with the applicable Indenture and the applicable
underwriting or other agreement, such Senior Debt Security or Subordinated Debt
Security will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of equitable remedies may
be limited by equitable principles of general applicability.
2. Upon designation of the relative rights, preferences and limitations
of any series of Preferred Stock by the Board of Directors of the Company and
the proper filing with the Secretary of State of the State of Delaware of a
Certificate of Designation relating to such series of Preferred Stock, all
necessary corporate action on the part of the Company will have been taken to
authorize the issuance and sale of such series of Preferred Stock proposed to
be sold by the Company, and when such shares of Preferred Stock are issued and
delivered against payment therefor in accordance with the applicable
underwriting or other agreement, such shares of Preferred Stock will be validly
issued, fully paid and non-assessable.
E-2
<PAGE>
3. When the applicable warrant agreement to be entered into in
connection with the issuance of Warrants has been duly authorized, executed and
delivered by the Company and the warrant agent, the specific terms of a
particular Warrant have been duly authorized and established in accordance with
the applicable warrant agreement and such Warrants have been duly authorized,
executed, issued and delivered against payment therefor in accordance with the
applicable warrant agreement and the applicable underwriting or other
agreement, all corporate action on the part of the Company will have been taken
to authorize the issuance and sale of such Warrants proposed to be sold by the
Company and such Warrants will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such Security, (i) the Board of
Directors shall have duly established the terms of such Security and duly
authorized the issuance and sale of such Security and such authorization shall
not have been modified or rescinded; (ii) the Board of Directors shall have
duly authorized the execution and delivery of the Subordinated Indenture and
any supplemental indenture or the applicable warrant agreement, as the case may
be, and such authorization shall not have been modified or rescinded; (iii) the
Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; and (iv) there shall
not have occurred any change in law affecting the validity or enforceability of
such Security. We have also assumed that none of the terms of any Security to
be established subsequent to the date hereof, nor the issuance and delivery of
such Security, nor the compliance by the Company with the terms of such
Security will violate any applicable law or will result in a violation of any
provision of any instrument or agreement then binding upon the Company, or any
restriction imposed by any court or governmental body having jurisdiction over
the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under
the caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell
E-3
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
The Board of Directors
Donaldson, Lufkin & Jenrette Inc.:
We consent to the incorporation by reference in the registration statemen (No.
333-30928) on Form S-3 as amended March 1, 2000, of our report dated February
2, 1999, which is included in the December 31, 1998 annual report on Form 10-K
of Donaldson, Lufkin & Jenrette, Inc., also incorporated herein by reference,
and to the reference to our firm under the heading "Experts" in the
registration statement.
/s/ KPMG LLP
New York, New York
March 1, 2000
E-4
