EXHIBIT 99(C)
MERRILL LYNCH & CO., INC.
and
CITIBANK, N.A., as Warrant Agent
--------------------
WARRANT AGREEMENT
dated as of November , 2000
--------------------
EURO CURRENCY WARRANTS
EXPIRING FEBRUARY , 2002
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PARTIES...........................................................................................................4
RECITALS..........................................................................................................4
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book Entry Procedures; Successor Depositary.........................4
SECTION 1.02. Form, Execution and Delivery of Global Warrant Certificate................................5
SECTION 1.03. Global Warrant Certificate................................................................6
SECTION 1.04. Registration of Transfers and Exchanges...................................................6
SECTION 1.05. Warrant Certificates......................................................................7
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants......................................................................9
SECTION 2.02. Exercise and Delivery of Warrants.........................................................9
SECTION 2.03. Automatic Exercise Prior to the Expiration Date..........................................11
SECTION 2.04. Covenant of the Company..................................................................12
SECTION 2.05. Return of Global Warrant Certificate.....................................................12
SECTION 2.06. Return of Money Held Unclaimed for Two Years.............................................13
SECTION 2.07. Designation of Agent for Receipt of Notice...............................................13
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.....................................................13
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance......................................13
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants.................................................................14
SECTION 4.02. Treatment of Holders.....................................................................14
ARTICLE V
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.................................................17
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment................................................................................18
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.....................................19
SECTION 6.03. Addresses for Notices....................................................................19
SECTION 6.04. Notices to Holders.......................................................................19
SECTION 6.05. Applicable Law...........................................................................19
SECTION 6.06. Obtaining of Governmental Approvals......................................................19
SECTION 6.07. Persons Having Rights Under Warrant Agreement............................................20
SECTION 6.08. Headings.................................................................................20
SECTION 6.09. Counterparts.............................................................................20
SECTION 6.10. Inspection of Agreement..................................................................20
SIGNATURES.......................................................................................................21
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EXHIBIT A - Form of Global Warrant Certificate
WARRANT AGREEMENT
THIS AGREEMENT, dated as of November , 2000, between MERRILL LYNCH &
CO., INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and CITIBANK, N.A., a national banking
association duly incorporated and existing under the laws of the United
States, as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "Warrant") representing the right to receive from the Company
the Cash Settlement Amount (as defined herein) in U.S. dollars computed by
reference to increases in the "USD/EUR Rate", a foreign exchange spot rate
that measures the relative value of the Euro and the U.S. Dollar; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company
in connection with the issuance, transfer and exercise of the Warrants, and
wishes to set forth herein, among other things, the provisions of the Warrants
and the terms and conditions on which they may be issued, transferred,
exercised and cancelled;
NOW, THEREFORE, in consideration of the promises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book Entry Procedures;
---------------------------------------------
Successor Depositary.
--------------------
(a) The Warrants shall initially be represented by a single certificate
(the "Global Warrant Certificate"). Each Warrant shall represent the right,
subject to the provisions contained herein and in the Global Warrant
Certificate, to receive the Cash Settlement Amount, if any, (as defined in
paragraph (d) of Section 2.02) of such Warrant. In no event shall Holders (as
defined in Section 4.02) be entitled to receive any interest on any Cash
Settlement Amount (unless the Company shall default in the payment of such
Cash Settlement Amount). Beneficial owners of interests in the Global Warrant
Certificate shall not be entitled to receive definitive Warrants evidencing
the Warrants; provided, however, that if (i) the Depositary (as defined in
Section 1.01(b)) is at any time unwilling or unable to continue as Depositary
for the Warrants and a successor Depositary is not appointed by the Company
within 60 days, (ii) The Company executes and delivers to the Warrant Agent a
company order to the effect that the global warrants shall be exchangeable, or
(iii) the Company shall be adjudged bankrupt or insolvent or make an
assignment for the benefit of its creditors or institute proceedings to be
adjudicated bankrupt or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization under applicable law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver or
custodian of it or all or any substantial part of its property shall be
appointed, or if any public officer shall have taken charge or control of the
Company or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, the Company will issue Warrants in definitive
form in exchange for the Global Warrant Certificate. In addition, the Company
may at any time determine not to have the Warrants represented by a Global
Warrant Certificate and, in such event, will issue Warrants in definitive form
in exchange for the Global Warrant Certificate. In any such instance, and in
accordance with the provisions of this Agreement, each beneficial owner of an
interest in the Global Warrant Certificate will be entitled to have a number
of Warrants equivalent to such owner's beneficial interest in the Global
Warrant Certificate registered in its name and will be entitled to physical
delivery of such Warrants in definitive form by the Depositary Participant (as
defined in Section 1.01(c)) through which such owner's beneficial interest is
reflected. The provisions of Section 1.05 shall apply only if, and when,
Warrants in definitive form ("Warrant Certificates") are issued hereunder.
Unless the context shall otherwise require, all references in this Agreement
to the Global Warrant Certificate shall include the Warrant Certificates in
the event that Warrant Certificates are issued.
(b) The Global Warrant Certificate shall be deposited with the Depositary
or its agent (the term "Depositary", as used herein, initially refers to The
Depository Trust Company and includes any successor depositary selected by the
Company as provided in Section 1.01(d)) for credit to the accounts of the
Depositary Participants as shown on the records of the Depositary from time to
time.
(c) The Global Warrant Certificate will initially be registered in the
name of a nominee of the Depositary selected by the Company for the Warrants.
The Warrant holdings of Depositary Participants will be recorded on the books
of the Depositary. The holdings of customers of Depositary Participants will
be reflected on the books and records of such Depositary Participants and will
not be known to the Warrant Agent, the Company or to the Depositary.
"Depositary Participants" include securities brokers and dealers, banks and
trust companies, clearing organizations and certain other organizations which
are participants in the Depositary's system. The Global Warrant Certificate
will be held by the Depositary or its agent.
(d) The Company may from time to time select a new entity to act as
Depositary and, if such selection is made, the Company shall promptly give the
Warrant Agent written notice to such effect identifying the new Depositary,
and the Global Warrant Certificate shall be delivered to the Warrant Agent and
shall be transferred to the new Depositary as provided in Section 1.04 as
promptly as possible. Appropriate changes may be made in the Global Warrant
Certificate, the notice of exercise and the related notices delivered in
connection with an exercise of Warrants to reflect the selection of the new
Depositary.
SECTION 1.02. Form, Execution and Delivery of Global Warrant
Certificate. The Global Warrant Certificate shall be in registered form and
substantially in the form set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. The Global Warrant Certificate 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 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 of the
Depositary, or to conform to usage. The Global Warrant Certificate shall be
signed on behalf of the Company by its President, Chairman of the Board,
officer serving as Chief Financial Officer, Treasurer, any Executive Vice
President or any Vice President, manually or by facsimile signature, and a
facsimile of its corporate seal shall be impressed, imprinted or engraved
thereon, which shall be attested by its Secretary or any Assistant Secretary,
either manually or by facsimile signature. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of the Global Warrant
Certificate that has been duly authenticated and delivered by the Warrant
Agent.
In case any officer of the Company who shall have signed the Global Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before the Global Warrant Certificate so signed shall have been
authenticated and delivered by the Warrant Agent or delivered by the Company,
such Global Warrant Certificate nevertheless may be authenticated and
delivered as though the person who signed such Global Warrant Certificate had
not ceased to be such officer of the Company; and the Global Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Global 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.
SECTION 1.03. Global Warrant Certificate. A Global Warrant
Certificate relating to Warrants originally issued may be
executed by the Company and delivered to the Warrant Agent on or after the
date of execution of this Agreement. The Warrant Agent is authorized, upon
receipt of the Global Warrant Certificate from the Company, duly executed on
behalf of the Company, to authenticate such Global Warrant Certificate. The
Global Warrant Certificate shall be manually authenticated and dated the date
of its authentication by the Warrant Agent and shall not be valid for any
purpose unless so authenticated. The Warrant Agent shall authenticate and
deliver the Global Warrant Certificate to or upon the written order of the
Company.
SECTION 1.04. Registration of Transfers and Exchanges. Except as
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depositary, to a
nominee of the Depositary, to a successor Depositary, or to a nominee of a
successor Depositary, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney. Upon any such registration of
transfer, the Company shall execute and the Warrant Agent shall authenticate
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of Unexercised Warrants
as evidenced by the Global Warrant Certificate at the time of such
registration of transfer.
The Global Warrant Certificate may be transferred as provided above at the
option of the Holder thereof when surrendered to the Warrant Agent at its
office or agency maintained for the purpose of transferring and exercising any
of the Warrants, which shall be south of Chambers Street in the Borough of
Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on
the date of this Agreement, 111 Wall Street, Fifth Floor, New York, New York
10005 Attention: Global Agency and Trust Services, or at the office of any
successor Warrant Agent as provided in Section 5.03, in exchange for another
Global Warrant Certificate of like tenor.
SECTION 1.05. Warrant Certificates. Any Warrant Certificates issued
in accordance with Section 1.01(a) shall be in registered form substantially
in the form set forth in Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are necessary or desirable
for individual Warrant Certificates, and may represent any integral multiple
of Warrants. 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 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 of the Depositary, or to conform to usage.
Warrant Certificates shall be signed on behalf of the Company upon the same
conditions, in substantially the same manner and with the same effect as the
Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company, shall be
delivered to the Warrant Agent, which shall manually authenticate and deliver
the same to or upon the written order of the Company. Each Warrant Certificate
shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been authenticated by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant Certificate
shall be registered in such names and addresses (including tax identification
numbers) and in such denominations as shall be requested in writing by the
Depositary or its nominee in whose name the Global Warrant Certificate is
registered, upon written certification to the Company and the Warrant Agent in
form satisfactory to each of them of a beneficial ownership interest in the
Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in The
City of New York a register (the register maintained in such office and in any
other office or agency maintained by or on behalf of the Company for such
purpose being herein sometimes collectively referred to as the "Warrant
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Warrant
Certificates and the transfer of Warrant Certificates. The Warrant Agent is
hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and the transfer of Warrant Certificates as herein provided.
Upon surrender for registration of a transfer of a Warrant Certificate at an
office or agency of the Company maintained for such purpose, the Company shall
execute, and the Warrant Agent shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Warrant Certificates
of any authorized denominations and representing Warrants of a like aggregate
number.
At the option of the Holder, Warrant Certificates may be exchanged for other
Warrant Certificates of any authorized denominations and representing Warrants
of a like aggregate number, upon surrender of the Warrant Certificates to be
exchanged at such office or agency. Whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute, and the Warrant Agent
shall authenticate and deliver, the Warrant Certificates which the Holder
making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of a transfer or an
exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations of the Company, and entitled to the
same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for registration of a
transfer or for an exchange shall (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Warrant Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of a transfer or an
exchange of Warrant Certificates, but the Company or the Warrant Agent 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 a transfer
or an exchange of Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
If there shall be delivered by a Holder to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate, (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless and (iii)
funds sufficient to cover any cost or expense to the Company (including any
fees and expenses, including legal fees and expenses, charged by the Warrant
Agent) relating to the issuance of a new Warrant Certificate, then, in the
absence of written 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 upon its written request the Warrant Agent shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of
any destroyed, lost or stolen Warrant Certificate shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant Certificates duly
issued hereunder.
The provisions of this Section 1.05 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name such Warrant Certificate is
registered as the owner of such Warrant Certificate for all purposes hereunder
whatsoever, whether or not such Warrant Certificate has been transferred and
neither the Company, the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for registration of transfer or exchange
shall, if surrendered to any person other than the Warrant Agent, be delivered
to the Warrant Agent and shall be promptly cancelled by it. The Company may at
any time deliver to the Warrant Agent for cancellation any Warrant
Certificates previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly cancelled by the Warrant Agent. No
Warrant Certificates shall be authenticated in lieu of or in exchange for any
Warrant Certificates cancelled as provided in this Section 1.05, except as
expressly permitted by this Warrant Agreement. All cancelled Warrant
Certificates held by the Warrant Agent shall be disposed of as directed in
writing by the Company.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants. Subject to the limitations
described herein, each Warrant evidenced by the Global Warrant Certificate
will expire on February , 2002 (the "Expiration Date").
SECTION 2.02. Exercise and Delivery of Warrants.
---------------------------------
(a) The warrants will be automatically exercised on the fourth
scheduled Business Day immediately preceding the Expiration Date (the
"Exercise Date") or, the Business Day immediately preceding the Warrants'
delisting or imposition of a permanent trading suspension on trading of the
Warrants (the "Delisting Date") or if certain events in bankruptcy, insolvency
or reorganization, as described herein, involving the Company occur (the
"Early Expiration Date").
(b) On the date of such automatic exercise, the Warrant Agent shall
obtain the Cash Settlement Amount, if any, from the Calculation Agent, advise
the Company of the aggregate Cash Settlement Amount, if any, of the Warrants
and advise the Company of such other matters relating to the Warrants as the
Company shall reasonably request. Any notice to be given to the Company by the
Warrant Agent pursuant to this Section 2.02 or pursuant to Section 2.03 shall
be by telephone and shall promptly be confirmed in writing. Any notice to be
given by the Calculation Agent to the Warrant Agent pursuant to this Section
2.02 or pursuant to Section 2.03 shall be by facsimile transmission to the
address of the Warrant Agent set forth in Section 6.03.
(c) The Company shall make available to the Warrant Agent, no later
than 3:00 P.M., New York City time, on the Expiration Date, or if February
____ , 2002 is not a Business Day, on the next succeeding Business Day (the
"Settlement Date") funds in an amount sufficient to pay such aggregate Cash
Settlement Amount. Provided that the Company has made adequate funds available
to the Warrant Agent in such manner, the Warrant Agent shall make payment by
check to the relevant Depositary Participant, after 3:00 P.M., New York City
time, but prior to the close of business, on such Settlement Date. Any such
payment shall be in the amount of the aggregate Cash Settlement Amount in
respect of exercised Warrants for which delivery has been accepted by the
Warrant Agent.
(d) The Cash Settlement Amount of a warrant is an amount, if positive,
equal to the greater of:
(i) zero, or
Spot Value - Strike Value
(ii) U.S. $50 X --------------------------
Strike Value
The "Spot Value" will be determined by Merrill Lynch , Pierce, Fenner & Smith
Incorporated ("MLPF&S") or any successor thereto, as the Calculation Agent
(the "Calculation Agent"), and will equal:
the bid rate of the U.S. Dollar per Euro in the interbank
market as reported by Reuters Group PLC ("Reuters") on page
FXFX at approximately 3:00 p.m. London time on the Exercise
Date.
The "Strike Value" equals .
However, if the USD/EUR Rate is not so quoted on the date of automatic
exercise, then the Spot Value will be the exchange rate between Euro and U.S.
Dollars, based upon the noon buying rate in New York for cable transfers in
foreign currencies as announced by the Federal Reserve Bank of New York for
customs purposes (the "Noon Buying Rate"). If the Noon Buying Rate is not
announced on such date of automatic exercise, then the Spot Value will be
calculated on the basis of the arithmetic mean of the applicable spot
quotations received by the calculation agent at approximately 3:00 p.m. London
time on the relevant date for the purchase or sale by the Reference Dealers
(as defined herein) of the Reference Amount (as defined herein) for settlement
two Business Days later. If fewer than two Reference Dealers provide such spot
quotations, then the Spot Value will be calculated on the basis of the
arithmetic mean of the applicable spot quotations received by the calculation
agent at approximately 3:00 p.m. London time on the relevant date from three
leading commercial banks in New York (selected in the sole discretion of the
calculation agent), for the sale by such banks of the Reference Amount for
settlement two Business Days later. If these spot quotations are available
from fewer than three such banks, then the calculation agent, in its sole
discretion, shall determine which spot rate is available and reasonable to be
used. If no such spot quotation is available, then the Spot Value will be the
rate the calculation agent, in its sole discretion, determines to be fair and
reasonable under the circumstances at approximately 3:00 p.m., London time, on
the relevant date.
"Business Day", as used herein, means any day other than a Saturday
or a Sunday or a day on which commercial banks in The City of New York are
required or authorized by law or executive order to be closed.
"Reference Amount" is U.S.$.
"Reference Dealers", as used herein, means Citibank, N.A., Deutsche
Bank Securities, Inc. and The Chase Manhattan Bank, or their successors.
The Cash Settlement Amount will be rounded, if necessary, to the
nearest cent, with one-half cent being rounded upwards.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes
and binding on the Company and the beneficial owners of the warrants.
SECTION 2.03. Automatic Exercise Prior to the Expiration Date
------------------------------------------------
(a) In the event the Warrants are delisted from, or permanently
suspended from trading on, the American Stock Exchange (the "AMEX") and the
Warrants are not simultaneously accepted for trading pursuant to the rules of
another national securities exchange, the Warrants will expire on the Business
Day immediately prior to the date on which such delisting or trading
suspension becomes effective (the "Delisting Date"), and the Warrants will be
automatically exercised at the close of business on such Delisting Date. The
Company will advise the Warrant Agent of any expected delisting or permanent
suspension of trading of the Warrants as soon as it is practicable and will
immediately inform the Warrant Agent after the Company has received notice
that such delisting or suspension has occurred and that the Warrants are not
accepted for listing on another national securities exchange, but in no event
will such notice be given to the Warrant Agent later than 5:00 P.M., New York
City time, on the Business Day preceding the Delisting Date.
(b) The Warrants will expire on the date that any of the following
events occur and the Warrants will be automatically exercised on the Business
Day immediately preceding such date (the "Early Expiration Date"):
(i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereinafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(ii) The Company commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect, or shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due or shall take any
corporate action in furtherance of any of the foregoing.
(c) Upon the occurrence of any the events described in subsections (a)
or (b) above, the Cash Settlement Amount, if any, shall be determined by the
Calculation Agent pursuant to Section 2.02(d) as if the Delisting Date or
Early Expiration Date, as applicable, were the Exercise Date.
(d) The Warrant Agent shall, on the Exercise Date determined pursuant
to subsection (a) or (b) above, obtain the Cash Settlement Amount, if any,
from the Calculation Agent, advise the Company of the Cash Settlement Amount,
if any, of the Warrants evidenced by the Global Warrants Certificate and
advise the Company of such other matters relating to the Warrants as the
Company shall reasonably request. Provided that the Company has made the
adequate funds available to the Warrant Agent in a timely manner which shall,
in no event, be later than 3:00 P.M., New York City Time, on the fifth
Business Day following the Delisting Date or Early Expiration Date, the
Warrant Agent will make its check (or another form of payment in accordance
with existing arrangements between the Warrant Agent and the Depositary)
available to the Depositary against receipt by the Warrant Agent from the
Depositary of the Global Warrant Certificate on the fifth Business Day
following the Delisting Date or Early Expiration Date, such check to be in the
amount of the aggregate Cash Settlement Amount in respect of the number of
Warrants evidenced by the Global Warrant Certificate at the close of business
on the Delisting Date or Early Expiration Date. The Warrant Agent shall
promptly cancel the Global Warrant Certificate following its receipt thereof
from the Depositary.
(e) The Company Shall notify the Holders, or cause such Holders to be
notified, as soon as practicable of any delisting or trading suspension of the
warrants.
(f) If the Warrants are simultaneously accepted for trading pursuant to
the rules of another national securities exchange, from and after such date
all references in this Section 2.03 shall continue to apply, but each
reference to the "American Stock Exchange" or "AMEX" herein shall be deemed to
refer to such other national securities exchange.
SECTION 2.04. Covenant of the Company. The Company covenants, for the
benefit of the Holders, that it shall not seek the delisting of the Warrants
from, or suspension of their trading on, the AMEX.
SECTION 2.05. Return of Global Warrant Certificate. At such time as
all of the Warrants have been automatically exercised or otherwise cancelled,
the Warrant Agent shall destroy the cancelled Global Warrant Certificate
unless the Company directs it in writing to return it.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Any money
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Amount of any Warrants and not applied but remaining unclaimed for
two years after the date upon which such Cash Settlement Amount shall have
become due and payable, shall be repaid by the Warrant Agent to the Company
and the Holder of such Warrants shall thereafter look only to the Company for
any payment which such Holder may be entitled to collect and all liability of
the Warrant Agent with respect to such money shall thereupon cease; provided,
however, that the Warrant Agent, before making any such repayment, may at the
expense of the Company notify the Holders concerned that said money has not
been so applied and remains unclaimed and that after a date named therein any
unclaimed balance of said money then remaining shall be returned to the
Company.
SECTION 2.07. Designation of Agent for Receipt of Notice. The Company
may from time to time designate in writing to the Warrant Agent a designee for
receipt of all notices required to be given by the Warrant Agent pursuant to
this Article II and all such notices thereafter shall be given in the manner
herein provided by the Warrant Agent to such designee.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any Holder, without the consent of
the Warrant Agent, may, in and for his own behalf, enforce, and may institute
and maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to exercise, and to receive
payment for, his Warrants as provided in the Global Warrant Certificate and in
this Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other
corporation, provided that in any such case, either the Company shall be the
continuing corporation, or the successor corporation shall be a corporation
organized and existing under the laws of the United States of America or a
State thereof and such successor corporation shall expressly assume the
payment of the Cash Settlement Amount with respect to all unexercised
Warrants, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Agreement and the
Global Warrant Certificate to be performed by the Company. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, a new Global Warrant Certificate
representing the Warrants not theretofore exercised, in exchange and
substitution for the Global Warrant Certificate theretofore issued. Such
Global Warrant Certificate shall in all respects have the same legal rank and
benefit under this Agreement as the Global Warrant Certificate theretofore
issued in accordance with the terms of this Agreement as though such new
Global Warrant Certificate had been issued at the date of the execution
hereof. In any case of any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company, such changes in
phraseology and form (but not in substance) may be made in the new Global
Warrant Certificate as may be appropriate.
The Warrant Agent shall receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company complies with the
provisions of this Section 3.02 and that the assumption of this Agreement by
the successor or assuming corporation is effective.
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company
shall purchase or otherwise acquire Warrants, such Warrants may, at the option
of the Company and upon written notification to the Warrant Agent, be
surrendered free through a Depositary Participant for credit to the Warrant
Account and if so credited the Warrant Agent shall promptly note the
cancellation of such Warrants by notation on the records of the Warrant Agent.
No Warrant shall be issued in lieu of or in exchange for any Warrant which is
cancelled as provided herein, except as otherwise expressly permitted by this
Agreement.
SECTION 4.02. Treatment of Holders. 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 or the Global Warrant Certificate
shall be registered in the records of the Warrant Agent as the absolute owner
of such Warrant Certificate or Global Warrant Certificate, as the case may be,
(notwithstanding any notation of ownership or other writing thereon) (the
"Holder") for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, 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, except that the Warrant Agent and the
Company shall be entitled to conclusively rely on and act pursuant to
instructions of Depositary Participants as contemplated by Article II of this
Agreement. This Section 4.02 shall be without prejudice to the rights of
Holders as described elsewhere herein.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.
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(a) The Company hereby appoints Citibank, N.A. as Warrant Agent of the
Company in respect of the Warrants and Global Warrant Certificate upon the
terms and subject to the conditions set forth herein and in the Global Warrant
Certificate; and Citibank, N.A. hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
the Global Warrant Certificate and hereby and such further powers and
authority acceptable to it to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Global Warrant
Certificate are subject to and governed by the terms and provisions hereof.
(b) The Warrant Agent covenants and agrees to maintain offices, staffed
by qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Warrant Agreement, including without limitation
the computation of the Cash Settlement Amounts and the timely settlement of
the Warrants upon exercise thereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof and of the Global Warrant Certificates including the following, to all
of which the Company agrees and to all of which the rights hereunder of the
Holders and beneficial owners from time to time of the Warrants shall be
subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company in writing for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses (including counsel fees and expenses)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered by it
hereunder. The Company also agrees to indemnify the Warrant Agent and its
officers, directors, agents and employees for, and to hold it and them
harmless against, any loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred without negligence, bad faith or breach
of this Agreement on the part of the Warrant Agent or them, arising out of or
in connection with it acting as such Warrant Agent hereunder or with respect
to the Warrants or the Global Warrant Certificate and any transactions or
documents contemplated herewith or therewith, as well as the reasonable costs
and expenses of defending against any claim of liability in the premises.
(b) In acting under this Agreement and in connection with the Global
Warrant Certificate, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
for or with any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, 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 omitted or thing suffered by it in
reliance upon any Global 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) The Warrant Agent, and its officers, directors and employees, may
become the owner of, or acquire an interest in, any 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, or as depositary, trustee
or agent for, any committee or body of Holders of 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 or of the Global Warrant Certificate 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 execution and delivery hereof by the Warrant
Agent) or with respect to the validity or execution of the Global Warrant
Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant Certificate
(except as to the Warrant Agent's authentication 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 only such duties as
are herein and in the Global Warrant Certificate specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Global
Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder likely to involve it in any
expense or liability, the payment of which or indemnity satisfactory to it 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
the Global Warrant Certificate authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of any proceeds. 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 Global
Warrant Certificate or in the case of the receipt of any written demand from a
Holder of a Warrant with respect to such default, except as provided in
Section 6.02 hereof, 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 to make any demand upon the Company.
(j) Unless herein or in the Global Warrant Certificate otherwise
specifically provided, any order, certificate, notice, request, direction or
other communication from the Company made or given by the Company under any
provision of this Agreement shall be sufficient if signed by its President,
Chairman of the Board, officer serving as Chief Financial Officer, Treasurer,
any Executive Vice President or any Vice President.
(k) In the absence of bad faith on the part of the Warrant Agent, the
Warrant Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Warrant Agent which conform to the requirements of
this Agreement.
(l) The Warrant Agent shall not be liable for any error of judgment
made in good faith by an officer or officers of the Warrant Agent, unless it
shall be conclusively determined by a court of competent jurisdiction that the
Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with any
direction of the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this Agreement
the Warrant Agent shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering any action to be taken 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
Warrant Agent, be deemed to be conclusively proved and established by a
certificate signed by one of Company's officers, as the case may be, and
delivered to the Warrant Agent and such certificate, in the absence of
negligence or bad faith on the part of the Warrant Agent, shall be full
warrant to the Warrant Agent for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document.
SECTION 5.03. Resignation and Appointment of Successor.
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(a) The Company agrees, for the benefit of the Holders from time to
time of the Warrants, that there shall at all times be a Warrant Agent
hereunder until all the Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent 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, and acceptance of such appointment
by such successor Warrant Agent, as hereinafter provided. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a banking institution organized under
the laws of the United States of America, or one of the states thereof and
having an office or an agent's office south of Chambers Street 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 or removal, the Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Warrant Agent. 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 and shall survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged 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 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 appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the latter of such appointment, the Warrant Agent so superseded shall cease
to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
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 of the corporate trust 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 VI
MISCELLANEOUS
SECTION 6.01. Amendment.
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(a) This Agreement and the Global Warrant Certificate may be amended by
the Company and the Warrant Agent, without the consent of the Holder of the
Global Warrant Certificate or the beneficial owners, for the purpose of curing
any ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, for the purpose of
appointing a successor Depositary in accordance with paragraph (d) of Section
1.01, for the purpose of issuing Warrants in definitive form in accordance
with paragraph (a) of Section 1.01, or in any other manner which the Company
may deem to be necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Warrants. Notwithstanding
anything in this Section 6.01 to the contrary, this Agreement may not be
amended to provide for the authentication by the Warrant Agent of one or more
Global Warrant Certificates evidencing in excess of __________________
Warrants originally issued unless and until the Warrant Agent has received
notice from the AMEX or any successor Self-Regulatory Organization that
additional Warrants in excess of __________________ Warrants originally issued
have been approved for listing on such exchange.
The Warrant Agent shall be entitled to receive an Opinion of Counsel
prior to executing any amendment, modification or supplement under this
Section 6.01(a).
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Global Warrant Certificate, with the consent of the
beneficial owners of not fewer than a majority in number of the Warrants
affected by such modification or amendment, for any purpose; provided,
however, that no such modification or amendment that changes the Strike Value
so as to adversely affect the beneficial owners, shortens the period of time
during which the Warrants will be automatically exercised or otherwise
materially and adversely affects the exercise rights of the beneficial owners
or reduces the percentage of the number of outstanding Warrants the consent of
the beneficial owners of which is required for modification or amendment of
this Agreement or the Global Warrant Certificate may be made without the
consent of the beneficial owners of Warrants 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 any Holder pursuant to the provisions of the Global Warrant
Certificate, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses for Notices. Any communications from the
---------------------
Company to the Warrant Agent with respect to this Agreement shall be addressed
to Citibank, N.A., 111 Wall Street, New York, NY 10005,
(facsimile: (212) 825-3483) (telephone: (212) 657-9055), Attention: Corporate
Trust Services; any communications from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to Merrill Lynch & Co., Inc.,
South Tower, World Financial Center, 225 Liberty Street, New York, NY
10080-6107 (facsimile: (212) 236-6004) (telephone: (212) 236-6112), Attention:
Treasurer (first copy) and Merrill Lynch & Co., Inc., 100 Church Street, 12th
Floor, New York, NY 10007 (facsimile: (212) 602-8436) (telephone: (212)
602-8444), Attention: Corporate Secretary (second copy); and any
communications from the Warrant Agent to the Calculation Agent with respect to
this Agreement shall be addressed to Merrill Lynch, Pierce, Fenner & Smith,
World Financial Center, North Tower, 250 Vesey Street, New York, NY, 100281
Attention: Steven Bodurtha (facsimile: (212) 449-6576) (telephone: (212)
449-6577) (or such other address as shall be specified in writing by the
Warrant Agent, the Company or the Calculation Agent, respectively).
SECTION 6.04. Notices to Holders. The Company or the Warrant Agent
------------------
may cause to have notice given to the beneficial owners of interests in the
Global Warrant Certificate by providing the Depositary with a form of notice
to be distributed by the Depositary to Depositary Participants in accordance
with the customs and practices of the Depositary.
SECTION 6.05. Applicable Law. The validity, interpretation and
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performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 6.06. Obtaining of Governmental Approvals. The Company shall
----------------------------------
from time to time take all actions which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and the AMEX and securities acts filings under United States
Federal and State laws, which may be or become requisite in connection with
the issuance, sale, trading, transfer or delivery of the Warrants, the Global
Warrant Certificate and the exercise of the Warrants.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. Nothing
---------------------------------------------
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the
Warrant Agent, and the Holders any right, remedy or claim under or by reason
of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Agreement contained shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
registered Holders of the Warrant Certificate.
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 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, during its normal business hours for inspection by the
Depositary Participants and the Holders.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
MERRILL LYNCH & CO., INC.
By ____________________________
John C. Stomber
Senior Vice President
and Treasurer
CITIBANK, N.A.
By ___________________________
Name:
Title:
