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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities and Exchange Act of 1934
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The Bear Stearns Companies Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3286161
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(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
245 Park Avenue
New York, New York
(212) 272-2000 10167
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Japan Index Call Warrants The American Stock Exchange
Expiring _______, 1997
Japan Index Put Warrants The American Stock Exchange
Expiring _______, 1997
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The Registrant hereby incorporates by reference the
description of the classes of securities registered hereby (the
"Securities") as set forth in the following documents previously filed
or to be filed by the Registrant with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"):
(1) the description set forth under the caption
"Description of Warrants" on pages 10 through 12 of the Registrant's
Registration Statement on Form S-3 (Registration No. 33-52701); and
(2) the description set forth under the caption
"Description of the Warrants" in the final Prospectus Supplement to be
filed with the Commission pursuant to Rule 424(b) under the Securities
Act.
ITEM 2. EXHIBITS.
1.1 - Form of Warrant Agreement relating to the Call
Warrants made among the Registrant, Chemical Bank, as Warrant Agent,
and Bear, Stearns & Co. Inc., as Determination Agent.
1.2 - Form of Warrant Agreement relating to the Put
Warrants made among the Registrant, Chemical Bank, as Warrant Agent,
and Bear, Stearns & Co. Inc., as Determination Agent.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
THE BEAR STEARNS COMPANIES INC.
By: /s/ Samuel L. Molinaro, Jr.
Samuel L. Molinaro, Jr.
Senior Vice President -
Finance
Dated: July 19, 1994
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INDEX TO EXHIBITS
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE
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1.1 Form of Warrant Agreement relating to the
Call Warrants made among the Registrant,
Citibank, N.A., as Warrant Agent, and Bear
Stearns & Co. Inc., as Determination Agent.
1.2 Form of Warrant Agreement relating to the Put
Warrants made among the Registrant, Citibank,
N.A., as Warrant Agent, and Bear Stearns &
Co. Inc., as Determination Agent.
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THE BEAR STEARNS COMPANIES INC.
and
CHEMICAL BANK, as Warrant Agent
and
BEAR, STEARNS & CO. INC., as Determination Agent
WARRANT AGREEMENT
_______ __, 1994
Japan Index Put Warrants
Expiring __________, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY
AND REGISTRATION OF WARRANT CERTIFICATES AND GLOBAL
WARRANT CERTIFICATE . . . . . . . . . . . . . . . . 1
SECTION 1.01. Issuance of Warrants . . . . . . . . 1
SECTION 1.02. Form, Execution and Delivery
of Warrant Certificates . . . . . . . 3
SECTION 1.03. Warrant Certificates . . . . . . . . 3
SECTION 1.04. Registration of Transfers and
Exchanges . . . . . . . . . . . . . 4
SECTION 1.05. Mutilated or Missing Warrant
Certificates . . . . . . . . . . . . 5
SECTION 1.06. Registered Holders . . . . . . . . . 6
SECTION 1.07. Global Warrant Certificate . . . . . 6
ARTICLE II DURATION AND EXERCISE OF WARRANTS . . . . . . . . . 8
SECTION 2.01. Duration of Warrants; Minimum
Exercise Amounts; Notice of
Exercise . . . . . . . . . . . . . . 8
SECTION 2.02. Exercise and Delivery of
Warrants . . . . . . . . . . . . . . 10
SECTION 2.03. Automatic Exercise of Warrants;
Exercise upon an Extraordinary
Event or Exercise Limitation Event . 20
SECTION 2.04. Covenant of the Company . . . . . . . 26
SECTION 2.05. Return of Money Held Unclaimed
for Two Years . . . . . . . . . . . . 26
SECTION 2.06. Return of Global Warrant Certificate 26
SECTION 2.07. Substitution of New Japan Index . . . 27
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF
WARRANTHOLDERS . . . . . . . . . . . . . . . . . . . 29
SECTION 3.01. Warrantholder of Warrant May
Enforce Rights . . . . . . . . . . . 29
ARTICLE IV WARRANTS ACQUIRED BY THE COMPANY;
PAYMENT OF TAXES . . . . . . . . . . . . . . . . . . 29
SECTION 4.01. Warrants Acquired by the Company . . 29
SECTION 4.02. Payment of Taxes . . . . . . . . . . 29
ARTICLE V CONCERNING THE WARRANT AGENT . . . . . . . . . . . . 30
SECTION 5.01. Warrant Agent . . . . . . . . . . . . 30
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SECTION 5.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . 30
SECTION 5.03. Resignation and Appointment of
Successor. . . . . . . . . . . . . . 32
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 34
SECTION 6.01. Amendment . . . . . . . . . . . . . . 34
SECTION 6.02. Notices and Demands to the
Company, the Warrant Agent and
the Determination Agent . . . . . . . 34
SECTION 6.03. Addresses for Notices . . . . . . . . 34
SECTION 6.04. Notices to Holders . . . . . . . . . 35
SECTION 6.05. Obtaining of Approvals . . . . . . . 35
SECTION 6.06. Persons Having Rights Under
This Agreement . . . . . . . . . . . 35
SECTION 6.07. Inspection of Agreement . . . . . . . 35
SECTION 6.08. Headings . . . . . . . . . . . . . . 36
SECTION 6.09. Counterparts . . . . . . . . . . . . 36
SECTION 6.10. APPLICABLE LAW . . . . . . . . . . . 36
EXHIBITS
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EXHIBIT A - FORM OF WARRANT CERTIFICATE
EXHIBIT A-1 - FORM OF GLOBAL WARRANT CERTIFICATE
EXHIBIT A-2 - NOTICE OF EXERCISE FOR WARRANTS REPRESENTED BY THE
GLOBAL WARRANT CERTIFICATE
EXHIBIT B - CONFIRMATION OF EXERCISE FOR WARRANTS REPRESENTED BY
WARRANT CERTIFICATES
EXHIBIT B - NOTICE OF REJECTION FOR WARRANTS REPRESENTED BY
WARRANT CERTIFICATES
EXHIBIT B-1 - CONFIRMATION OF EXERCISE FOR WARRANTS REPRESENTED BY
THE GLOBAL WARRANT CERTIFICATE
EXHIBIT B-1 - NOTICE OF REJECTION FOR WARRANTS REPRESENTED BY
GLOBAL WARRANT CERTIFICATE
EXHIBIT C-1 - NOTICE OF REJECTION RELATING TO LIMIT OPTION FOR
WARRANTS REPRESENTED BY WARRANT CERTIFICATES
EXHIBIT C-2 - NOTICE OF REJECTION RELATING TO LIMIT OPTION FOR
WARRANTS REPRESENTED BY THE GLOBAL WARRANT
CERTIFICATE
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of ____ __, 1994, among THE BEAR STEARNS
COMPANIES INC., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), CHEMICAL BANK, a corporation
organized and existing under the laws of the State of New York (the
"Warrant Agent"), and BEAR, STEARNS & CO. INC., a corporation
organized and existing under the laws of the State of Delaware (the
"Determination Agent").
WHEREAS, the Company proposes to sell put warrants (collectively, the
"Warrants" or, individually, a "Warrant") representing the right to
receive from the Company the amount, if any, in U.S. dollars
determined by reference to decreases in the Index (as defined herein)
on the terms and conditions set forth in this Agreement; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, transfer and exercise of the Warrants;
WHEREAS, the Company desires 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
canceled.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES AND
GLOBAL WARRANT CERTIFICATE
SECTION 1.01. ISSUANCE OF WARRANTS. (a) The Warrants will
constitute direct, unconditional and unsecured contractual obligations
of the Company and will rank on a parity with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
(b)Each Warrant shall represent the right, upon exercise (including
automatic exercise) subject to the provisions contained herein, to
receive the Cash Settlement Value or the Alternative Settlement
Amount, as the case may be (each as defined herein), of such Warrant.
In no event shall a registered or beneficial holder of a Warrant
(each, a "Warrantholder" and collectively, the "Warrantholders") be
entitled to receive any interest on any Cash Settlement Value or
Alternative Settlement Amount.
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(c) Forty-five calendar days after _____ __, 1994, each
Warrantholder will have the option to convert the form in which such
Warrantholder holds his Warrants from certificated to book-entry form
(the "Conversion Option"). The Conversion Option will be available
for forty-five calendar days from _____ __, 1994 through _______ __,
1994 (the "Conversion Option Period"). To utilize the Conversion
Option, a Warrantholder must deliver or arrange to deliver his
Warrants to an entity (a "Participant") entitled to execute, clear and
settle transactions through the Depository (as defined herein) through
which such Warrantholder's beneficial interest in his Warrants will be
maintained after electing the Conversion Option, who will then deposit
the Warrants with the Depository or its nominee. Once a Warrantholder
has elected the Conversion Option, such Warrantholder may hold his
Warrants only in book-entry form and will not be able to change his
election or withdraw from the book-entry system during the Conversion
Option Period or thereafter. Accordingly, except as hereinafter
provided, ownership of the Warrants in certificated form will no
longer be available to Warrantholders who have elected the Conversion
Option and ownership of the Warrants surrendered under the Conversion
Option will be represented by a single certificate (the "Global
Warrant Certificate"); provided, however, that if the Depository is at
any time unwilling or unable to continue as securities depository for
the Warrants and a successor securities depository is not appointed by
the Company within 90 days, the Company will reissue Warrant
Certificates (as defined herein) 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 Warrant Certificates in exchange for the
Global Warrant Certificate. In either instance, and in accordance
with the provisions of this Agreement, each Warrantholder will be
entitled to have the number of Warrants equivalent to such
Warrantholder's beneficial interest in the Global Warrant Certificate
registered in the name of the Warrantholder and will be entitled to
physical delivery of such Warrants in certificated form by a
Participant. The provisions of Section 1.07 shall apply only if and
when the Conversion Option is utilized and a Global Warrant
Certificate is issued hereunder. Unless the context shall otherwise
require, and subject to the provisions of Section 1.07, all references
in this Agreement to the Warrant Certificates (other than in Sections
1.02, 1.03, 1.04, 1.05, 1.06 and 1.07) shall include the Global
Warrant Certificate in the event that the Global Warrant Certificate
is issued.
SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES. (a) The Warrants, whenever issued, shall be
represented by certificates in registered form substantially in the
form set forth in Exhibit A hereto (the "Warrant Certificates"), with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may
represent any number of whole Warrants. The Warrant Certificates may
have imprinted or<PAGE>
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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 which 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 any
securities depository, or to conform to usage. Warrant Certificates
shall be signed on behalf of the Company by its chairman, its
president or one of its vice presidents and under its corporate seal
reproduced thereon and attested by its secretary or an assistant
secretary. 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.
(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 officer of the Company. In addition, the 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.
SECTION 1.03. WARRANT CERTIFICATES. Each Warrant
Certificate, when signed on behalf of the Company in accordance with
Section 1.02, shall be delivered to the Warrant Agent, which shall
manually countersign and deliver the same to or upon the order of the
Company. Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any
purpose, and no 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 officer of the Warrant Agent
upon any Warrant Certificate signed by the Company in accordance with
Section 1.02 shall be conclusive evidence that the Warrant Certificate
so countersigned has been duly issued hereunder.
SECTION 1.04. REGISTRATION OF TRANSFERS AND EXCHANGES. (a)
Except as otherwise provided herein or in the Warrant Certificate, the
Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant<PAGE>
<PAGE>
Register") at the Warrant Agent's Office (as defined herein), subject
to such reasonable regulations as the Company or the Warrant Agent
may prescribe, upon surrender thereof, duly endorsed, 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) 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 member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to
the transferee(s) and the surrendered Warrant Certificate shall be
canceled by the Warrant Agent.
(b) At the option of a Warrantholder, Warrant Certificates
may be exchanged for other Warrant Certificates, representing a like
number of Warrants, upon surrender to the Warrant Agent of the Warrant
Certificates to be exchanged at its offices maintained for such
purpose (the location of which shall be provided to the Company),
which shall be in the Borough of Manhattan, the City of New York (the
"Warrant Agent's Office"), and which is, on the date of this
Agreement, 450 West 33rd Street, New York, New York 10001 or at the
office of any successor Warrant Agent (as provided in Section 5.03).
Upon surrender of any 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, in
accordance with Sections 1.02 and 1.03, one or more new Warrant
Certificates of like tenor and representing a like number of
unexercised Warrants.
(c) Warrant Certificates issued upon transfer or exchange
pursuant to Section 1.04(a) or (b) shall be valid obligations of the
Company, evidencing the same obligations of the Company as the Warrant
Certificates surrendered for transfer or exchange, and entitled to the
same benefits under this Agreement as were such Warrant Certificates
prior to such surrender.
(d) Except as provided in Section 1.05, 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 1.04 not
involving any transfer.
(e) In the event that upon any exercise of Warrants
evidenced by a Warrant Certificate the number of Warrants exercised
shall be less than the total number of Warrants evidenced by such
Warrant Certificate, there shall be issued to the holder thereof or
his assignee a new Warrant Certificate evidencing the number of
Warrants not exercised.
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SECTION 1.05. MUTILATED OR MISSING WARRANT CERTIFICATES.
(a) If any Warrant Certificate 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,
and upon cancellation of, the mutilated Warrant Certificate, or in
replacement of the Warrant Certificate lost, stolen or destroyed, a
new Warrant Certificate of like tenor and representing an equivalent
number of Warrants, bearing an identification number 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 all of the Warrants represented 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, direct the Warrant Agent to treat such Warrant
Certificate the same as if it had received irrevocable notice of
exercise in proper form in respect thereof, as provided herein, or as
being subject to automatic exercise, as the case may be.
(c) Each new Warrant Certificate issued pursuant to this
Section 1.05 in replacement of any lost, stolen or destroyed Warrant
Certificate shall be an original, additional contractual obligation of
the Company and shall be entitled to the same benefits under this
Agreement as the Warrant Certificate that was lost, stolen or
destroyed.
(d) Upon the issuance of any new Warrant Certificate in
accordance with this Section 1.05, 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 1.05 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 1.06. REGISTERED HOLDERS. 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
Warrants evidenced thereby (notwithstanding any notation of ownership
or other writing on<PAGE>
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the Warrant Certificate) for any purpose whatsoever, and as the person
entitled to exercise the rights represented by the 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. This Section 1.06 shall be without prejudice to the
rights of Warrantholders as described elsewhere herein.
SECTION 1.07. GLOBAL WARRANT CERTIFICATE. (a) Any Global
Warrant Certificate issued in accordance with this Section 1.07 shall
be substantially in the form set forth in Exhibit A-1 hereto, with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may
represent any number of whole Warrants. 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 which 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 any securities depository referred to herein, or to conform to
usage. The Global Warrant Certificate shall be signed on behalf of
the Company upon the same conditions, in substantially the same manner
and with the same effect, as the Warrant Certificates.
(b) The Warrant Agent is authorized, from time to time
during the Conversion Option Period, upon receipt of a Global Warrant
Certificate from the Company, duly executed on behalf of
the Company, to countersign such Global Warrant Certificate. The
Global Warrant Certificate shall be manually countersigned and dated
the date of its countersignature by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Warrant Agent
shall deliver the Global Warrant Certificate to or upon the order of
the Company against receipt of an appropriate amount of Certificated
Warrants (as defined herein; such Certificated Warrant shall be
destroyed or otherwise disposed of in accordance with instructions
provided by the Company). One or more Global Warrant Certificates may
be executed by the Company and delivered to the Warrant Agent on or
after the date of execution of this Agreement; provided that only one
Global Warrant Certificate shall be outstanding at any one time.
The Company reserves the right to issue, from time to time
after the date of execution of this Agreement, additional Warrants,
which Warrants shall in all respects be identical to Warrants
previously issued and outstanding under this Agreement, and in
connection therewith the Global Warrant Certificate may be exchanged
for a new Global Warrant Certificate to reflect the issuance by the
Company of such additional Warrants. To effect such an exchange, the
Company shall deliver to the Warrant Agent<PAGE>
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a new Global Warrant Certificate duly executed on behalf of the Company
as provided in Section 1.02. The Warrant Agent shall countersign the new
Global Warrant Certificate as provided in this Section 1.07 and shall
deliver the new Global Warrant Certificate to the Depository in exchange
for, and upon receipt of, the Global Warrant Certificate then held by the
Depository. The Warrant Agent shall cancel the Global Warrant
Certificate delivered to it by the Depository, destroy such Global
Warrant Certificate and provide a certificate with respect to such
destruction to the Company.
(c) The Global Warrant Certificate will initially be
registered in the name of a nominee of The Depository Trust Company,
New York, New York (the "Depository", which term, as used herein,
includes any successor securities depository selected by the Company).
The interest of each Participant in the Global Warrant Certificate
will be recorded on the books of the Depository. The beneficial
interest of each customer of a Participant in the Global Warrant
Certificate and the identity of such customer will be reflected on the
books and records of such Participants and will not be known to the
Warrant Agent, the Company or the Depository. The Global Warrant
Certificate will be held by the Depository or its agent.
The Company may from time to time select a new entity to act
as Depository with respect to the Warrants. If such selection is
made, the Company shall promptly give the Warrant Agent notice to such
effect identifying the new Depository, and the Global Warrant
Certificate shall be delivered to the Warrant Agent and shall be
transferred to the new Depository as provided below as promptly as
possible. Appropriate changes may be made in the forms
of the Global Warrant Certificate, the notice of exercise and the
related notices to be delivered in connection with an exercise to
reflect the selection of the new Depository.
(d) 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 its records
(which may be maintained electronically), subject to such reasonable
regulations as the Company or the Warrant Agent may prescribe, only to
the Depository, to a nominee of the Depository, to a successor
Depository or to a nominee of a successor Depository, upon surrender
of such Global Warrant Certificate duly endorsed, 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 thereof or by the duly appointed legal representative thereof,
or by its 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 member of a national securities exchange. Upon any such
registration of transfer, a new Global Warrant Certificate shall be
issued to the transferee and the surrendered Global Warrant
Certificate shall be canceled by the Warrant Agent.
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The Global Warrant Certificate may be transferred as
provided above at the option of the holder thereof, when surrendered
to the Warrant Agent's Office, or at the office of any successor
Warrant Agent (as provided in Section 5.03), for another Global
Warrant Certificate of like tenor and representing a like number of
unexercised Warrants.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. DURATION OF WARRANTS; MINIMUM EXERCISE AMOUNTS; NOTICE
OF EXERCISE. (a) Subject to the limitations set forth herein and in
Section 2.03, each Warrant may be irrevocably exercised, in whole but
not in part, at or prior to 3:00 p.m., New York City time, on any New
York Business Day (as defined herein) from its date of issuance until
3:00 p.m., New York City time, on the New York Business Day
immediately preceding the earlier of (i) ___________, 1997 (the
"Expiration Date"), or (ii) the Delisting Date (as defined herein).
Except in the case of automatic exercise, each Warrant shall be
irrevocably exercised either (i) in the case of Warrants represented
by Warrant Certificates ("Certificated Warrants") including Certi-
ficated Warrants held through CEDEL (as defined herein) or
Euroclear (as defined herein), by surrender to the Warrant Agent (at
its address as set forth in the Notice of Exercise (as defined below)
or at such other address as the Warrant Agent may specify from time to
time) of the Warrant Certificate representing such Warrant, with the
Notice of Exercise duly completed and executed by the Registered
Holder of such Warrant (or in the case of Certificated Warrants held
through the facilities of CEDEL or Euroclear, by an entity entitled to
execute, clear and settle transactions through CEDEL or Euroclear (a
"CEDEL or Euroclear Participant"), as the case may be) or (ii) in the
case of Warrants represented by the Global Warrant Certificate ("Book-
Entry Warrants") by causing (x) such Warrant to be transferred free to
the Warrant Agent on the records of the Depository in accordance with
the Depository's Deposit/Withdrawal at Custodian procedures, as
provided in the Letter of Representations, dated ____ __, 1994 (the
"Representations Letter"), among the Company, the Warrant Agent and
the Depository and (y) a duly completed and executed Notice of
Exercise to be received by the Warrant Agent from a Participant, in
the case of Book-Entry Warrants held through the Depository, or a
CEDEL or Euroclear Participant, in the case of such Warrants held
through CEDEL or Euroclear, acting, directly or indirectly, on behalf
of the Warrantholder; provided, however, that Notices of Exercise are
subject to rejection by the Warrant Agent as provided herein.
(b) No fewer than 500 Warrants in either certificated or
book-entry form may be exercised by or on behalf of any one
Warrantholder at any one time, except that no such minimum exercise
amount shall apply in the case of automatic exercise on<PAGE>
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the Expiration Date or the Delisting Date, or in the case of cancellation
of the Warrants as a result of an Extraordinary Event (as defined herein).
Each Notice of Exercise shall be unconditional, subject to the
provisions of Section 2.02(h). Except as provided in Section 2.02(b),
the Warrant Agent shall be entitled, with no duty of inquiry, to rely
conclusively on any Notice of Exercise received by it and on any
representation of the exercising Warrantholder contained therein.
(c) "Notice of Exercise" means an irrevocable notice of
exercise to the Warrant Agent at its address, which notice (A) for
Certificated Warrants, shall be on the reverse of the Warrant
Certificate or such other form as the Company and the Warrant Agent
may approve, and (B) for Book-Entry Warrants, shall be substantially
in the form set forth in Exhibit A-2 hereto or such other form as the
Company and the Warrant Agent may approve and may be given by
facsimile transmission. For purposes of this Agreement, "New York
Business Day" means any day other than a Saturday or a Sunday in New
York City or a day on which either the American Stock Exchange (the
"AMEX") or the New York Stock Exchange is not open for securities
trading or commercial bank in New York City are required or authorized
by law or executive order to remain closed.
SECTION 2.02. EXERCISE AND DELIVERY OF WARRANTS.
(a) Except if the Company has determined that an Extraordinary Event
or an Exercise Limitation Event has occurred and is continuing, the
valuation date (the "Valuation Date") for a Warrant shall be the first
Index Calculation Date (as defined herein) following the applicable
Exercise Date (as defined herein).
The "Exercise Date" for a Warrant will be the New York
Business Day on which the Warrant Agent has received (A) in the case
of Warrants other than those held through the facilities of Cedel S.A.
("CEDEL") or the Euroclear System ("Euroclear"), either (i) for
Certificated Warrants, the Warrant Certificate representing such
Warrant, with the Notice of Exercise or (ii) for Book-Entry Warrants,
the Warrant with the Notice of Exercise duly completed and executed,
in either case, at or prior to 3:00 p.m., New York City time; and if
the Warrant Agent shall receive any such Warrant Certificate or
Warrant or Notice of Exercise after 3:00 p.m., New York City time, on
such date, then such Warrant Certificate or Warrant shall be deemed to
have been received at or prior to 3:00 p.m., New York City time, on
the next succeeding New York Business Day (which shall be considered
the Exercise Date), and in such event the Valuation Date shall be the
next Index Calculation Date following the New York Business Day on
which the Warrant Agent is deemed to have received such Warrant
Certificate or Warrant together with the Notice of Exercise or (B) in
the case of Warrants held through the facilities of CEDEL or
Euroclear, the Notice of Exercise (by facsimile transmission) at or
prior to 3:00 p.m., New York City time; provided that the Warrant or
Warrant Certificate is received by the Warrant Agent by 3:00 p.m., New
York City time,<PAGE>
<PAGE>
on the applicable Valuation Date; and if the Warrant Agent shall
receive such Notice of Exercise after 3:00 p.m., New York
City time, on any New York Business Day, then the Notice of Exercise
shall be deemed to have been received at or prior to 3:00 p.m., New
York City time, on the next succeeding New York Business Day (which
shall be considered the Exercise Date), and in such event the
Valuation Date shall be the next Index Calculation Date following the
New York Business Day on which the Warrant Agent is deemed to have
received such Notice of Exercise; provided, that if the Warrant Agent
receives the Warrant or Warrant Certificate after 3:00 p.m., New York
City time, on the Valuation Date, then the Exercise Date for such
Warrant shall be the day on which such Warrant is received or, if such
day is not a New York Business Day, the next succeeding New York
Business Day, and the Valuation Date for such Warrant shall be the
first Index Calculation Date following such Exercise Date; provided,
further, however, that in the case of exercises by Euroclear
Participants, Euroclear must by facsimile to the Warrant Agent by 9:00
a.m., New York City time, on the Valuation Date confirm (a "Euroclear
Confirmation") that the Warrants will be received by the Warrant Agent
by 3:00 p.m., New York City time, on such date. If such Euroclear
Confirmation is received after 9:00 a.m., New York City time, on the
Valuation Date, the Company will be entitled to direct the Warrant
Agent to reject the related Notice of Exercise or waive the requirement
for timely delivery of such Euroclear Confirmation.
Any Warrant Certificate or Warrant received after 3:00 p.m.,
New York City time, on the New York Business Day immediately preceding
the earlier of (i) the Expiration Date or (ii) the effective date on
which the Warrants are delisted from, or permanently suspended from
trading (within the meaning of the Securities Exchange Act of 1934 and
the rules and regulations of the Securities and Exchange Commission
thereunder) on, the AMEX and not accepted at the same time for listing
on another United States national securities exchange (such effective
date being the "Delisting Date") (or, in the case of Warrants held
through the facilities of CEDEL or Euroclear, after 3:00 p.m., New
York City time, on the first Index Calculation Date following such New
York Business Day), shall be deemed not to have been delivered and the
related Notice of Exercise shall be void and of no effect; provided,
however, that if the Company first receives notice of the delisting or
suspension of the Warrants on the same day on which such Warrants are
delisted or suspended, such day will nevertheless be deemed the
Delisting Date for purposes of this Agreement. For purposes of this
Agreement, "Index Calculation Date" means any Tokyo Business Day (as
defined herein) on which the Index (as herein defined) is calculated
and published.
(b) The Warrant Agent shall, in the case of Warrants other
than Warrants held through CEDEL or Euroclear, following receipt of
proper delivery of a Warrant in accordance with Section 2.02(a),
accompanied by a completed Notice of Exercise,<PAGE>
<PAGE>
and, in the case of Warrants held through CEDEL or Euroclear, following
receipt of proper delivery of a completed Notice of Exercise in accordance
with Section 2.02(a):
(i) promptly (1) for Certificated Warrants not held through
CEDEL or Euroclear, determine whether such Notice of Exercise has
been duly completed and is in proper form duly executed by the
Registered Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, (2) for
Certificated Warrants held through CEDEL or Euroclear, determine
whether such Notice of Exercise has been duly completed and is in
proper form duly executed by the CEDEL or Euroclear Participant
tendering such Warrant, as applicable, (3) for Book-Entry
Warrants not held through CEDEL or Euroclear, determine whether
such Notice of Exercise has been duly completed and is in proper form
and (4) for Book-Entry Warrants held through CEDEL or Euroclear,
determine whether such Notice of Exercise has been duly completed
and is in proper form duly executed by the CEDEL or Euroclear
Participant tendering such Warrant, as applicable; and if the
Warrant Agent determines that the Notice of Exercise has not been
duly completed or is not in proper form or, in the case of
Certificated Warrants, has not been so executed, the Warrant
Agent promptly (X) shall reject such Notice of Exercise and shall
send to the entity that executed such Notice of Exercise a notice
of rejection substantially in the form set forth in Exhibit B or
Exhibit B-1 hereto, as the case may be, and, in the case of
Certificated Warrants, shall return to the Registered Holder that
submitted such Notice of Exercise, by first class mail, the
Warrant Certificates evidencing such Warrants (to the extent
received in the case of Warrants held through CEDEL or
Euroclear), or, in the case of Book-Entry Warrants, shall
redeliver such Warrants (to the extent received in the case of
Warrants held through CEDEL or Euroclear) free through the
facilities of the Depository to the account from which they were
transferred to the Warrant Agent and (Y) in either case, shall
not take the actions required by clauses (ii) - (viii) below with
respect to such Notice of Exercise or the related Warrants;
provided, however, that the Warrant Agent shall deliver a copy of
the Notice of Exercise relating to such Warrants to the Company
as required by Section 2.02(b)(viii) below and the Company may
waive any defect in the form of such Notice of Exercise;
(ii) notify the Company and the Determination Agent (and
such other parties (not to exceed two) as the Company shall
designate in writing) by 4:00 p.m., New York City time, on the
New York Business Day that such Notice of Exercise has been
received (or shall be deemed to have been received) of (A) the
total number of Warrants covered by such Notice of Exercise, (B)
the number of such Warrants subject to the Limit Option (as
defined herein)<PAGE>
<PAGE>
("Contingently Tendered Warrants"), and (C) the number of such
Warrants not subject to the Limit Option;
(iii) with respect to Warrants held through Euroclear,
determine whether the Warrant Agent has received by 9:00 a.m.,
New York City time, on the Valuation Date relating to such
Warrants, Euroclear Confirmations with respect to such Warrants,
and if the Warrant Agent has not received any such Euroclear
Confirmation by such time, notify the Company (and such other
parties (not to exceed two) as the Company shall designate in
writing) by 10:00 a.m., New York City time, on such Valuation
Date (or if the Valuation Date is not a New York Business Day on
the next succeeding New York Business Day) of the number of such
Warrants in respect of which the Warrant Agent has not received
such Euroclear Confirmations and (except to the extent the Company
has notified the Warrant Agent that it has waived the timing
requirement of timely delivery of such Euroclear Confirmation)
send to the Euroclear Participant that executed such Notice of
Exercise for which no related Euroclear Confirmation was received
(at the address specified in such notice) a notice of rejection
substantially in the form set forth in Exhibit B or Exhibit B-1
hereto, as the case may be;
(iv) if any of the Warrants covered by such Notice of
Exercise constitute Contingently Tendered Warrants, the Warrant
Agent shall, by 5:00 p.m., New York City time, on the Valuation
Date (or, if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day) (A) determine the
Reference Index (as defined herein) for such Warrants and the
Spot Index (as defined herein) for the Index Calculation Date
that, but for the provisions of Section 2.02(h), would be the
Valuation Date for such Warrants; (B) determine in accordance
with Section 2.02(h) whether such Contingently Tendered Warrants
will be subject to exercise after giving effect to the Limit
Option and, if such Warrants will not be subject to exercise,
send to the Registered Holder (or the entity that executed the
Notice of Exercise, in the case of Certificated Warrants held
through CEDEL or Euroclear), in the case of Certificated
Warrants, or to the Participant, in the case of Book-Entry
Warrants, that submitted such Notice of Exercise a notice of
rejection substantially in the form set forth in Exhibit C-1 or
Exhibit C-2 hereto, as appropriate, with respect to such Warrants
and return to the Registered Holder (or the entity that executed
the Notice of Exercise, in the case of Certificated Warrants held
through CEDEL or Euroclear) that submitted such Notice of
Exercise, by first class mail, the Warrant Certificates (to the
extent received in the case of Warrants held through CEDEL or
Euroclear) evidencing such Warrants, or, in the case of Book-
Entry Warrants (to the extent received in the case of Warrants
held through CEDEL or Euroclear), redeliver the Warrants free
through the facilities of the Depository to the account of such
<PAGE>
<PAGE>
Participant; and (C) notify the Company and the Determination
Agent as to whether such Contingently Exercised Warrants will be
subject to exercise;
(v) by 5:00 p.m., New York City time, on the Valuation Date
(or, if such Valuation Date is not a New York Business Day, on
the next succeeding New York Business Day) (A) determine the sum
of (1) the number of such Warrants not subject to the Limit
Option (i.e., the number of Warrants determined pursuant to
clause (ii)(C) above) plus (2) the number of such Warrants that
are Contingently Exercised Warrants that will be subject to
exercise notwithstanding the Limit Option (i.e., the number of
Warrants so identified pursuant to clause (iv)(B) above)
(all of such Warrants, the "Exercised Warrants")
and (B) notify the Company and the Determination Agent of the
total number of Exercised Warrants so determined (if such number
is zero, the Warrant Agent shall not take the actions required by
clauses (vi) and (vii) with respect to such Notice of Exercise or
the related Warrants);
(vi) calculate the Cash Settlement Value of the Exercised
Warrants (excluding any Warrants held through CEDEL or Euroclear
as to which timely delivery of the related Warrant has not been
made or as to which a notice of rejection has been or is to be
sent pursuant to clause (iii) above) as of their Valuation Date
in the manner set forth in Section 2.02(d) by no later than 5:00
p.m., New York City time, on the Valuation Date (or, if such
Valuation Date is not a New York Business Day on the next
succeeding New York Business Day) (unless the Cash Settlement
Value shall be calculated by the Determination Agent);
(vii) notify the Company (and such other parties (not to
exceed two) as the Company shall designate in writing) no later
than 5:00 p.m., New York City time, on the Valuation Date (or, if
such Valuation Date is not a New York Business Day, on the New
York Business Day next succeeding the Valuation Date) of the Cash
Settlement Value payable in respect of the exercise of such
Exercised Warrants, and send notices of confirmation
substantially in the form included in Exhibit B or Exhibit B-1
hereto, as the case may be, to the appropriate Registered Holder
(or the entity that executed the related Notice of Exercise in
the case of Certificated Warrants held through CEDEL or
Euroclear) or Participant specifying therein the reference number
assigned by the Warrant Agent to each accepted Notice of
Exercise; and
(viii) promptly deliver a copy of each Notice of Exercise to
the Company and advise the Company of such other matters relating
to the Exercised 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<PAGE>
<PAGE>
Section 2.03 shall be by telephone (promptly confirmed in writing)
or telecopy.
Except in the case of Warrants subject to automatic exercise
and Warrants that upon exercise entitle the holder thereof to receive
an Alternative Settlement Amount in lieu of the Cash Settlement Value,
if on any Valuation Date the Cash Settlement Value for any Warrants
then exercised would be zero, then, in such case, the exercise of such
Warrants shall be ignored and either (i) for Certificated Warrants,
the Warrant Certificate evidencing such Warrants (to the extent received
in the case of Warrants held through CEDEL or Euroclear) shall be promptly
returned by the Warrant Agent to the Registered Holder (or the entity that
executed the related Notice of Exercise in the case of Certificated
Warrants held through CEDEL or Euroclear) by first class mail or (ii)
for Book-Entry Warrants, the Warrants will be transferred by the
Warrant Agent back to the Participant that submitted them free on the
records of the Depository (to the extent received in the case of
Warrants held through CEDEL or Euroclear) and, in either case, such
Warrantholder shall be permitted to exercise such Warrants prior to
the Expiration Date or the Delisting Date, as the case may be.
(c) Provided that the Company has made 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 fourth New
York Business Day following a Valuation Date (or, if the Valuation
Date is not a New York Business Day, on the fourth New York Business
Day following the New York Business Day next succeeding the Valuation
Date) (the "Settlement Date"), the Warrant Agent will be responsible
for making its payment available either (i) for Certificated Warrants,
to each appropriate Registered Holder in the form of a cashier's check
or an official bank check, or (in the case of payments of at least
$100,000) by wire transfer to a U.S. dollar account maintained by such
Registered Holder in the United States (at such Registered Holder's
election as specified in the applicable Notice of Exercise), after
3:00 p.m., New York City time, but prior to the close of business, on
the first New York Business Day immediately succeeding such Settlement
Date or (ii) for Book-Entry Warrants, to each appropriate Participant
in the form of a cashier's check or an official bank check, or (in the
case of payments of at least $100,000) by wire transfer to a U.S.
Dollar account maintained by such Participant in the United States (at
the Participant's election as specified in the Notice of Exercise),
after 3:00 p.m., New York City time, but prior to the close of
business, on the first New York Business Day immediately succeeding
such Settlement Date. For either clause (i) or (ii) above, such
payment shall be in the amount of the aggregate Cash Settlement Value
in respect of the Warrant Certificates or Warrants that were delivered
to the Warrant Agent (together with the related Notice of Exercise) as
provided in Sections 2.01 and 2.02(a) and (b).
<PAGE>
<PAGE>
(d) The "Cash Settlement Value" of an Exercised Warrant
shall be an amount in U.S. dollars equal to the quotient (rounded down
to the nearest cent) of (A) the amount, if any, by which the Strike
Index (as defined herein) exceeds the closing level of the Index (as
defined herein), as calculated and published, on the applicable Valuation
Date for such Warrant (the "Spot Index"), divided by (B) the Warrant
Divisor (as defined herein); provided, however, that if such amount is
less than zero, then the Cash Settlement Value shall be zero.
The "Index" shall initially be the AMEX Japan Index
published by the AMEX (the "Japan Index"). Under the circumstances
set forth in Section 2.07, a New Japan Index (as defined herein) will
be substituted for the Japan Index, in which event such New Japan
Index shall (i) be used in calculating any Cash Settlement Value or
Alternative Settlement Amount (as defined herein) for the Warrants for
any Valuation Date on or after the Substitution Date (as defined
herein) and (ii) be the "Index" for purpose of this Agreement and the
Warrant Certificates.
If the Japan Index is not published by the AMEX (or, if a
New Japan Index has been substituted, the New Japan Index is not
published by the AMEX or another United States national securities
exchange), but is published by another person not affiliated with the
Company and acceptable to the Company (the "Third Party"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Japan Index (or, if a New Japan Index has been
substituted, the New Japan Index) as published by such Third Party and
(ii) the Japan Index (or, if a New Japan Index has been substituted,
the New Japan Index) published by such Third Party shall be the
"Index" for purposes of this Agreement and the Warrant Certificates.
If the AMEX or any Third Party discontinues publication of the Japan
Index (or, if a New Japan Index has been substituted, the New Japan
Index) and publishes a successor or substitute index that the Company
determines, in its sole discretion, to be comparable to the Japan
Index (or, if a New Japan Index has been substituted, the New Japan
Index) (any such index being a "Successor Index"), then
(i) any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Successor Index on such date and (ii) such Successor
Index shall be the "Index" for purposes of this Agreement and the
Warrant Certificates.
The "Strike Index" shall initially be _____ and the "Warrant
Divisor" shall initially be ____. If a New Japan Index is substituted
for the Japan Index pursuant to Section 2.07, the Strike Index and the
Warrant Divisor shall each be adjusted as provided in Section 2.07.
For purposes of this Agreement, "Tokyo Business Day" means
any day other than (i) a Saturday or a Sunday, (ii) a day on which
banks are not open for business in Tokyo, or (iii) a day<PAGE>
<PAGE>
on which the Tokyo Stock Exchange (the "TSE"), the Singapore
International Monetary Exchange Ltd. (the "SIMEX") or the Osaka
Securities Exchange (the "OSE") is not open for business.
(e) In the event a Global Warrant Certificate is issued,
the Warrant Agent shall cause its records, which may be kept
electronically, to be marked to reflect the reduction in the number of
Warrants represented by the Global Warrant Certificate by the number
of Warrants that were delivered to the Warrant Agent and for which
payment has been made as provided in Section 2.02(c) promptly after
such delivery and payment. Absent manifest error, the Warrant Agent's
records shall be conclusive evidence of such matters.
(f) The Company hereby appoints Bear, Stearns & Co. Inc.,
and Bear, Stearns & Co. Inc. accepts such appointment, to be the
Company's Determination Agent to make such calculations as may be
required upon the occurrence of any of the circumstances described in
Section 2.02(g) or 2.03, including, without limitation, calculation of
the Cash Settlement Value or the Alternative Settlement Amount, as
applicable, of a Warrant. The Determination Agent shall act as an
independent expert and not as an agent of the Company, 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, the
Warrantholders and any Participant. Any such calculations will be
made available to a Warrantholder for inspection at the Warrant
Agent's Office.
The Company agrees, for the benefit of the Warrantholders
from time to time of the Warrants, that there shall at all times be a
Determination Agent hereunder until (i) all the Warrants are no longer
outstanding or (ii) until moneys for the payment of all outstanding
Warrants, if any, shall have been paid to the Warrant Agent and shall
have been returned to the Company as provided in Section 2.06,
whichever occurs earlier. Resignation, removal and appointment of the
Determination Agent shall be in accordance with the procedures set
forth for the resignation, removal and appointment of the Warrant
Agent, as provided in Section 5.03, except that a successor
Determination Agent need not be a banking institution with offices in
the Borough of Manhattan, the City of New York, and may only be
appointed if such successor has been nominated by the Company and
approved by the predecessor Determination Agent.
The Company agrees promptly to pay the Determination Agent
the compensation to be agreed upon with the Company for all services
rendered by the Determination Agent hereunder. The Company also
agrees to indemnify the Determination Agent for, and to hold it
harmless against, any loss, liability, cost or expense (including
reasonable attorneys' fees and expenses) incurred by the Determination
Agent by reason of its being made a party to a suit or claim arising
out of this Agreement; provided, however, that such indemnity shall
in no event apply to the extent that<PAGE>
<PAGE>
any such loss, liability, cost or expense is a result of the negligence,
bad faith or breach of this Agreement on its part in connection with the
services rendered by it hereunder. The indemnity obligation of the
Company shall continue notwithstanding the termination of this Agreement
or the resignation or removal of the Determination Agent.
(g) In the event that the AMEX or the Third Party makes a
material change in the formula for, or the method of, calculating the
Index, the Determination Agent shall make such calculations as may be
required to determine the applicable Cash Settlement Value and/or
Alternative Settlement Amount using the formula and method of
calculating the Index as was in effect prior to such change or
modification.
If the AMEX and/or any Third Party discontinues publication
of the Index and, after giving effect thereto, there is no published
index used for purposes of determining the applicable Cash Settlement
Value and/or Alternative Settlement Amount, the Company will cause the
Determination Agent to determine the applicable Cash Settlement Value
and/or Alternative Settlement Amount based on the formula and method
used in calculating the Index as in effect on the date the Index was
last published.
If calculation or publication of the Index is modified,
discontinued or suspended, as provided in this Section 2.02(g) or in
Section 2.02(d), then the Determination Agent shall promptly notify
the Warrant Agent, and the Warrant Agent shall in turn promptly notify
the Warrantholders in accordance with Section 6.04 hereof, of such
modification, discontinuance or suspension and of any modification or
adjustment to be made with respect to calculation of the Cash
Settlement Value or Alternative Settlement Amount, as applicable.
The Determination Agent will have no responsibility for good
faith errors or omissions in calculating or disseminating information
regarding the Index, any Successor Index, adjustments or calculations
by the Determination Agent (as provided above) in order to arrive at a
calculation of a stock index comparable to the Index or any Successor
Index, or the Cash Settlement Value or the Alternative Settlement
Amount, as applicable.
(h) Except in the case of an automatic exercise (as
provided in Section 2.03 below) and except upon the occurrence of an
Extraordinary Event or Exercise Limitation Event as a result of which
an Alternative Settlement Amount is payable (as provided in Section
2.03 below) in connection with any exercise of Warrants, the related
Notice of Exercise may specify that such exercise (including any
exercise following a postponed Valuation Date pursuant to Section
2.03(b), if the Cash Settlement Value is to be paid with respect
to such Warrants), be subject to the condition that the Spot Index
that would otherwise be used to determine the Cash Settlement Value
of such Warrants not be 5% or<PAGE>
<PAGE>
more higher than the Reference Index for such Warrants. "Reference
Index", with respect to any Contingently Tendered Warrants, means the
Spot Index on the New York Business Day that, but for the provisions
of Section 2.02(h), would be the Exercise Date in respect of such
Contingently Tendered Warrants (or, if such New York Business Day is
not an Index Calculation Date, on the Index Calculation Date immediately
preceding such New York Business Day). The option of a Warrantholder to
condition an exercise of Warrants as provided in this Section 2.02(h)
is herein referred to as the "Limit Option". If a Warrantholder
elects the Limit Option, in connection with any exercise of Warrants,
the following provisions shall apply:
(i) To be valid, such election must be specified in the
related Notice of Exercise. Each of the Warrant Agent and the
Company shall be entitled to rely conclusively on such Notice of
Exercise, as received by the Warrant Agent, in determining
whether such election has been validly made. In connection with
any exercise of Warrants, a Warrantholder may elect to subject
only a portion of such Warrants to the Limit Option; provided
that the number of such Warrants subject to the Limit Option and
the number of such Warrants not subject to the Limit Option shall
in each case not be less than 500. Registered Holders and
Participants shall be required to certify that the number of
Warrants exercised on behalf of any Warrantholder pursuant to the
related Notice of Exercise that are subject to the Limit Option
is an amount that is not less than 500.
(ii) The Reference Index shall be determined by the Warrant
Agent which determination shall be conclusive and binding for all
purposes relating to such exercise.
(iii) In the event that the Spot Index for the day that, but
for the provisions of Section 2.02(h), would be the Valuation
Date for such Warrants is 5% or more higher than the Reference
Index for such Warrants, such Warrants (A) shall not be subject
to exercise and shall be treated for all purposes of this
Agreement and the Warrant Certificates and Global Warrant
Certificate as if the related Notice of Exercise had never been
received by the Warrant Agent, and (B) shall not constitute
"Exercised Warrants" for purposes of Section 2.02(b). If such
Spot Index is not 5% or more higher than such Reference Index,
such Warrants shall be subject to exercise as provided in this
Section 2.02 and shall be deemed to be "Exercised
Warrants" for such purposes. The Warrant Agent's determination
shall be conclusive and binding for all purposes relating to such
Warrants.
(iv) Except as provided in Section 2.03(b), the Limit Option
(based on the Reference Index as determined for the New York
Business Day that, but for the provisions of Section 2.02(h),
would be the Exercise Date in respect of<PAGE>
<PAGE>
such Contingently Tendered Warrants, or, if applicable, the Index
Calculation Date immediately preceding such New York Business Day)
shall continue to be applicable to any Exercised Warrant for which
the Valuation Date has been postponed as a result of the occurrence
of an Extraordinary Event or an Exercise Limitation Event until the
Warrants are canceled as provided in Section 2.03(b) or until the
Expiration Date or the Delisting Date.
SECTION 2.03. AUTOMATIC EXERCISE OF WARRANTS; EXERCISE UPON
AN EXTRAORDINARY EVENT OR EXERCISE LIMITATION EVENT. (a) All
Warrants for which the Warrant Agent has not received a Notice of
Exercise in proper form by 3:00 p.m., New York City time, on the New
York Business Day immediately preceding the earlier of (i) the
Expiration Date or (ii) the Delisting Date, as the case may be, or for
which the Warrant Agent has received a Notice of Exercise in proper
form but with respect to which timely delivery of the relevant
Warrants has not been made, and which have not been canceled prior to
such time, will be deemed automatically exercised on such New York
Business Day without any requirement of a Notice of Exercise, or a
delivery of Warrants, to the Warrant Agent. The Exercise Date for
such Warrants shall be such New York Business Day and the Valuation
Date for such Warrants shall be the first Index Calculation Date
following the Exercise Date for such Warrants.
The Warrant Agent shall by 5:00 p.m., New York City time, on
the New York Business Day immediately preceding the Expiration Date or
the Delisting Date, as the case may be, notify the Company (and such
other parties (not to exceed two) as the Company shall designate in
writing) of the number of Warrants to be automatically exercised on
such day. On the Valuation Date for such Warrants (or, if such
Valuation Date is not a New York Business Day, on the next succeeding
New York Business Day), the Warrant Agent shall (i) determine the Cash
Settlement Value (in the manner provided in Section 2.02(d)) of the
Warrants to be automatically exercised; (ii) by 5:00 p.m., New York
City time, on the Valuation Date, notify the Company (and such other
parties (not to exceed two) as the Company shall designate in writing)
of the Cash Settlement Value payable in respect of such exercised
Warrants; and (iii) advise the Company of such other matters relating
to the exercised Warrants as the Company shall reasonably request.
If the Company determines that an Extraordinary Event or an
Exercise Limitation Event (as defined herein) has occurred and is
continuing on the Expiration Date or the Delisting Date, the Company
shall so notify the Warrant Agent and the Determination Agent, and the
Cash Settlement Value with respect to the exercised Warrants shall be
equal to, be calculated in the same manner, and be payable at the same
time, as an "Alternative Settlement Amount", in accordance with
Section 2.03(b) herein (treating the Expiration Date or the Delisting
Date, as the case<PAGE>
<PAGE>
may be, as the date on which the Warrants were canceled for the purposes
of Section 2.03(b)). Except if an Extraordinary Event or an Exercise
Limitation Event has occurred and is continuing on the Expiration Date or
the Delisting Date, as the case may be, with respect to all Warrants
subject to automatic exercise (other than Book-Entry Warrants and
Warrants subject to postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event as described in
Section 2.03(b)), the Company shall make available to the Warrant
Agent, not later than 3:00 p.m., New York City time, on the fourth New
York Business Day following the Valuation Date for automatically
exercised Warrants (or if such Valuation Date is not a New York
Business Day, on the fourth New York Business Day following the New
York Business Day next succeeding the Valuation Date) (in any such
case, the "Automatic Settlement Date"), funds in an amount equal to,
and for the payment of, the aggregate Cash Settlement Value of such
Warrants. Subject to such funds having been made available as
provided in the preceding sentence, the Warrant Agent will be
responsible for making its payment available to the appropriate
Registered Holder in the form of a cashier's check or an official bank
check, or (in the case of payments of at least $100,000) by wire
transfer to a U.S. dollar account maintained by such Registered Holder
in the United States (at such Registered Holder's election), after
3:00 p.m., New York City time, but prior to the close of business, on
the Automatic Settlement Date, against receipt by the Warrant Agent at
the Warrant Agent's Office from such Registered Holder of its Warrant
Certificates. Such payment shall be in the amount of the aggregate
Cash Settlement Value in respect of the Warrants, evidenced by such
Warrant Certificates, that were exercised automatically on the
Expiration Date or the Delisting Date, as the case may be. Warrant
Certificates delivered to the Warrant Agent shall thereafter be
promptly canceled by the Warrant Agent.
Except if an Extraordinary Event or an Exercise Limitation
Event has occurred and is continuing on the Expiration Date or the
Delisting Date, as the case may be, in the case of Book-Entry Warrants
subject to automatic exercise (other than Warrants subject to
postponed exercise following the occurrence of an Extraordinary Event
or an Exercise Limitation Event as described in Section 2.03(b)), the
Company shall make available to the Warrant Agent, not later than
3:00 p.m., New York City time, on the Automatic Settlement Date, funds
in an amount equal to, and for the payment of, the aggregate Cash
Settlement Value of such Warrants. Subject to such funds having been
made available as provided in the preceding sentence, the Warrant Agent
will be responsible for making funds available to the Depository,
against receipt of the Global Warrant Certificate, after 3:00 p.m., New
York City time, but prior to the close of business, on the Automatic
Settlement Date, such funds to be in an amount equal to the aggregate
Cash Settlement Value of the Warrants subject to such automatic exercise.
<PAGE>
<PAGE>
The Company will advise the Warrant Agent as soon as
practicable of the date of any expected delisting or permanent
suspension of trading of the Warrants and will immediately inform the
Warrant Agent after the Company has received notice that such
delisting or suspension has occurred, but in no event will notice of
such delisting or suspension be given to the Warrant Agent later than
9:30 a.m., New York City time, on the New York Business Day following
the date that such delisting or suspension occurs. The Company will
use its best efforts to notify the Warrantholders, or cause the
Warrantholders to be notified, as promptly as practicable of any
expected delisting or suspension of trading of the Warrants.
(b) Upon the occurrence of an Extraordinary Event or an
Exercise Limitation Event, the Company shall use its best efforts to
notify the Warrant Agent and the Determination Agent promptly that an
Extraordinary Event or Exercise Limitation Event, as the case may be,
has occurred and shall promptly notify the Warrantholders, through
publication in a United States newspaper with a national circulation,
or through other means deemed appropriate by the Company
("Publication"), that an Extraordinary Event or an Exercise Limitation
Event has occurred.
Anything in this Agreement to the contrary notwithstanding,
if the Company determines that an Extraordinary Event or Exercise
Limitation Event has occurred and is continuing on the Tokyo Business
Day with respect to which the Spot Index on a Valuation Date is to be
determined (the "Applicable Tokyo Business Day"), then the Cash
Settlement Value of any Warrants shall be calculated on the basis that
the Valuation Date shall be the next Index Calculation Date following
such Applicable Tokyo Business Day on which there is no Extraordinary
Event or Exercise Limitation Event; provided, however, that, if the
Cash Settlement Value of such Warrants is not calculated on or prior
to the Expiration Date or the Delisting Date, then the Warrantholders
shall receive the Alternative Settlement Amount in lieu of the Cash
Settlement Value which shall be calculated as if such Warrants had been
canceled on the Expiration Date or the Delisting Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing, and if it is expected by the Company to
continue, the Company may immediately cancel the Warrants by notifying
the Warrant Agent of such cancellation (the date such notice is given
being the "Cancellation Date"), and each Warrantholder's rights with
respect to the Warrants and under this Agreement shall thereupon
cease; provided, however, that each Warrant shall be exercised (even
if such Warrant would not otherwise be exercisable on such date
because of the Limit Option) on the basis that the Valuation Date for
such Warrant shall be the Cancellation Date and each Warrantholder
shall have the right to receive an Alternative Settlement Amount with
respect to its Warrants. The Company shall use its best efforts<PAGE>
<PAGE>
to promptly notify the Warrantholders through Publication of such
cancellation.
With respect to all Warrants as to which the Valuation Date
has been postponed or which have been canceled as described above, the
Company shall make available to the Warrant Agent not later than 3:00
p.m., New York City time, on the third New York Business Day following
the date on which the Cash Settlement Value or Alternative Settlement
Amount, as the case may be, has been calculated (the "Alternative
Settlement Date"), funds in an amount equal to, and for the payment
of, the aggregate Cash Settlement Value or Alternative Settlement
Amount, as applicable, of such Warrants. Subject to such funds having
been made available as provided in the preceding sentence, the Warrant
Agent will be responsible for making a payment (i) in the case of
Certificated Warrants, to each Registered Holder that submitted a
Warrant Certificate for exercise or (ii) in the case of Book-Entry
Warrants, to the Depository, after 3:00 p.m., New York City time, but
prior to the close of business on, the Alternative Settlement Date, in
an amount equal to the aggregate Cash Settlement Value or Alternative
Settlement Amount of such exercised Warrants.
The "Alternative Settlement Amount" shall be an amount,
determined by the Determination Agent, which is equal to the amount
"X" calculated using the formula set forth below:
x = I + [(T/2) x (A/B)]
where
I = the Cash Settlement Value of the Warrants determined as
described under Section 2.02(d), but calculated with a Spot
Index determined by the Determination Agent which, subject
to approval by the Company (such approval not to be
unreasonably withheld), in the reasonable opinion of
the Determination Agent, fairly reflects the value of the
stocks which comprise the Index on the Cancellation Date;
T = U.S.$____, the initial offering price per Warrant;
A = the total number of days from but excluding the Cancellation
Date for such Warrants to and including the Expiration Date;
and
B = the total number of days from but excluding the date the
Warrants were initially sold to and including the Expiration
Date.
For purposes of determining "I" in the above formula, in the
event that the Determination Agent and the Company are required, but
have not, after good faith consultation with each other and within
five days following the first day on which such<PAGE>
<PAGE>
Alternative Settlement Amount may be calculated in accordance with the
above formula, agreed upon a Spot Index which fairly reflects the value
of the stocks which comprise the Index on the Cancellation Date, then
the Determination Agent shall promptly nominate a third party subject
to approval by the Company (such approval not to be unreasonably
withheld), to determine such figure and calculate the Alternative
Settlement Amount in accordance with the above formula. Such party
shall act as an independent expert and not as an agent of the Company
or the Determination Agent, and its calculation and determination of the
Alternative Settlement Amount shall, absent manifest error, be final
and binding on the Company, the Warrant Agent, the Determination Agent
and the Warrantholders. Any such calculations will be made available
to a Warrantholder for inspection at the Warrant Agent's Office.
Neither the Company, the Determination Agent nor such third party
shall have any responsibility for good faith errors or omissions in
calculating the Alternative Settlement Amount.
(c) For purposes of this Agreement, an "Extraordinary
Event" shall mean any one of the events, circumstances or causes
listed below:
(i) a suspension or absence of trading on the TSE of all
the underlying stocks which then comprise the Index; or
(ii) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any
U.S. or non-U.S. governmental authority or court that would make
it unlawful for the Company to perform any of its obligations
under the Warrant Agreement or the Warrants or that has or, in
the judgment of the Company, is likely to have, a material adverse
effect on the ability of the Company to perform its obligations
under the Warrants or to modify the hedge of its position with
respect to the Index; or
(iii) any outbreak or escalation of hostilities or other
national or international calamity or crisis (including, without
limitation, natural calamities which, in the opinion of the
Company, may materially and adversely affect the economy of Japan
or the trading of securities generally on the TSE) that has, or,
in the judgment of the Company, is likely to have, a material
adverse effect on the ability of the Company to perform its
obligations under the Warrants or to modify the hedge of its
position with respect to the Index.
For the purposes of determining whether an Extraordinary
Event has occurred: (1) a limitation on the hours or number of days of
trading will not constitute an Extraordinary Event if it results from
an announced change in the regular business hours of the TSE, and (2)
an "absence of trading" on the<PAGE>
<PAGE>
TSE will not include any time when the TSE itself is closed for trading
under ordinary circumstances.
(d) For purposes of this Agreement, an "Exercise Limitation
Event" shall mean any one of the events, circumstances or causes
listed below:
(i) a suspension or absence of trading on the TSE of 20% or
more (in number) of the underlying stocks which then comprise the
Index; or
(ii) the suspension or material limitation on the SIMEX, the
OSE or the AMEX or any other major futures, options or securities
market of trading in futures or options contracts related to the
Nikkei 225 Index (or, in the event of a substitution of the New
Japan Index for the Japan Index, the Nikkei 300 Index) or the
Index.
For purposes of determining whether an Exercise Limitation
Event has occurred: (1) a limitation on the hours or number of days
of trading will not constitute an Exercise Limitation Event if it
results from an announced change in the regular business hours of the
relevant exchange, (2) a decision to permanently discontinue trading
in the relevant futures or options contract will not constitute an
Exercise Limitation Event, (3) a suspension of trading in 20% or more
(in number) of the underlying stocks referred to in clause (i) above
or in a futures or options contract referred to in clause (ii) above,
by reason of (x) a price change violating limits set by the TSE,
SIMEX, OSE or AMEX or other futures or securities market on which
futures or options contracts related to the Nikkei 225 Index (or, in
the event of a substitution of the New Japan Index for the Japan
Index, the Nikkei 300 Index) or the Index are traded or (y) an
imbalance of orders relating to such underlying stocks or such
contracts will constitute a suspension or material limitation of
trading, (4) an "absence of trading" on the TSE will not include any
time when the TSE is closed for trading under ordinary circumstances
and (5) the occurrence of an Extraordinary Event described in clause
(i) of the definition of Extraordinary Event will not constitute, and
will supersede the occurrence of, an Exercise Limitation Event.
SECTION 2.04. COVENANT OF THE COMPANY. The Company
covenants, for the benefit of the Warrantholders, that it will not
seek the delisting of the Warrants from, or suspension of their
trading on, the AMEX unless the Company has at the same time arranged
for listing on another United States national securities exchange.
SECTION 2.05. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS.
Except as otherwise provided herein, any money deposited with or paid
to the Warrant Agent for the payment of the Cash Settlement Value or
Alternative Settlement Amount of any Warrants and not applied but
remaining unclaimed for two years after the<PAGE>
<PAGE>
date upon which such Cash Settlement Value or Alternative Settlement
Amount shall have become due and payable shall be repaid by the
Warrant Agent to the Company and the holders of such 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 at the expense of the
Company notify (i) in the case of Certificated Warrants, the Registered
Holders or (ii) in the case of Book-Entry Warrants, the Participants
concerned, 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.
SECTION 2.06. RETURN OF GLOBAL WARRANT CERTIFICATE. In the
event a Global Warrant Certificate is issued, at such time as all of
the Warrants evidenced by such certificate shall have been exercised
(including pursuant to an automatic exercise) or otherwise canceled
and all payments to the Participants made as provided herein, the
Warrant Agent shall cancel and destroy such Global Warrant Certificate
(unless instructed by the Company to deliver the Global Warrant
Certificate to the Company) and shall provide a certificate with
respect to such destruction to the Company.
SECTION 2.07. SUBSTITUTION OF NEW JAPAN INDEX. For
purposes of this Agreement, the following terms shall have the
following meanings:
"Nikkei 225 Index" shall mean the Nikkei 225 Index published
by Nihon Keizai Shimbun, Inc.
"Nikkei 225 Futures Contracts" shall mean futures contracts
on the Nikkei 225 Index.
"Nikkei 300 Index" shall mean the Nikkei 300 Index published
by Nihon Keizai Shimbun, Inc.
"Nikkei 300 Futures Contracts" shall mean futures contracts
on the Nikkei 300 Index.
On the thirtieth calendar day (or, if such day is not a New
York Business Day, the next succeeding New York Business Day) (a
"Substitution Date") following a Substitution Event (as defined
herein), the New Japan Index shall be substituted for the Japan Index.
Upon the occurrence of a Substitution Event, the Company shall cause
prompt notice of the occurrence of such Substitution Event and the
Substitution Date to be given to the Warrantholders. The notice shall
also state that on the Substitution Date, for purposes of calculating
any Cash Settlement Value or the Alternative Settlement Amount,
(i) the Spot Japan Index will be determined by reference to the<PAGE>
<PAGE>
closing level of the New Japan Index, (ii) an adjusted Strike Japan
Index will be substituted for the original Strike Japan Index and
(iii) an adjusted Warrant Divisor will be substituted for the original
Warrant Divisor. The adjusted Strike Japan shall be calculated as
follows:
initial Strike Japan Index x Current Level of New Japan Index
-------------------------------- =
Current Level of Japan Index
adjusted Strike Japan Index
The adjusted Warrant Divisor shall be calculated as follows:
initial Warrant Divisor x Current Level of New Japan Index
-------------------------------- =
Current Level of Japan Index
Adjusted Warrant Divisor
For purposes of the above calculations, the "Current Level"
of the Japan Index and the New Japan Index will equal their respective
levels at the close of business on the Tokyo Business Day immediately
preceding the Substitution Date.
A "Substitution Event" will occur if and when, as determined
by the Determination Agent (whose opinion shall be conclusive and
binding on the Company and the Warrantholders), the following
conditions are fulfilled:
(a) Nikkei 300 Futures Contracts shall at the time of the
Substitution Event be publicly traded on the OSE;
(b) The AMEX or another United States national securities
exchange shall publish (on a basis not less regularly than each
day on which it and the TSE are open for trading) an index (the
"New Japan Index") that for a period of 90 calendar days
immediately preceding the date of the Substitution Event shall
have had a correlation (based on daily closing value to closing
value percentage changes) of not less than 90% with the Nikkei
300 Index;
(c) An option or warrant that has payments determined by
reference to the New Japan Index shall at the time of the
Substitution Event have been approved to be listed on a national
securities exchange by the Securities and Exchange Commission;
(d) Either of the following shall have occurred:
(i) the Nikkei 225 Index shall no longer be published
and/or the Nikkei 225 Futures Contracts shall have been
delisted from trading on the OSE; or
(ii) the Nikkei 300 Futures Contracts publicly traded
on the OSE have (A) greater average daily volume and (B)
greater average daily open interest than the Nikkei 225
Futures Contracts that trade on the OSE, each for any three-
month period prior to the date of the Substitution Event,<PAGE>
<PAGE>
commencing on a futures expiration date on the OSE and
ending on the following futures expiration date; and
(e) To the extent required, the Company shall have obtained
any license necessary to use the New Japan Index as described
herein. The Company agrees to make reasonable efforts to obtain
any license necessary to use the New Japan Index as described
herein.
Notwithstanding the foregoing provisions of this Section 2.07, unless
the Nikkei 225 Index is no longer published and/or the Nikkei 225
Futures Contracts shall have been delisted from trading on the OSE, a
Substitution Event will not be deemed to have occurred on any of the
60 days next preceding the Expiration Date.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANTHOLDERS
SECTION 3.01. WARRANTHOLDER OF WARRANT MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any
Warrantholder, without the consent of the Warrant Agent, may, 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, and to receive payment
for, its Warrants as provided in this Agreement.
ARTICLE IV
WARRANTS ACQUIRED BY THE COMPANY;
PAYMENT OF TAXES
SECTION 4.01. WARRANTS ACQUIRED BY THE COMPANY. In the event the
Company shall purchase or otherwise acquire Warrants, such Warrants
may, at the option of the Company, be (i) in the case of Certificated
Warrants, delivered to the Warrant Agent, and if so delivered the
Warrant Agent shall promptly note the cancellation of such Warrants on
the records of the Warrant Agent or (ii) in the case of Book-Entry
Warrants, surrendered free through a Participant to the Depository for
credit to the account of the Warrant Agent maintained at the
Depository, and if so credited, the Warrant Agent shall promptly note
the cancellation of such Warrants by notation on the records of the
Warrant Agent. In the case of Book-Entry Warrants, such Warrants 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 Depository.<PAGE>
<PAGE>
No Warrant Certificate shall be countersigned in lieu of, or in exchange
for, any Warrant which is canceled as provided herein, except as
otherwise expressly permitted by this Agreement.
Any canceled Warrant Certificate held by the Warrant Agent
under this Agreement shall be destroyed by the Warrant Agent unless
otherwise directed by the Company, and the Warrant Agent shall deliver
a certificate with respect to such destruction to the Company.
SECTION 4.02. PAYMENT OF TAXES. The Company will pay all
stamp, withholding and other duties, if any, attributable to the
initial issuance of Warrants; provided, however, that, anything in
this Agreement to the contrary notwithstanding, the Company shall not
be required to pay any tax or other governmental charge which may be
payable in respect of any transfer involving any beneficial or record
interest in, or ownership interest of, any Warrants, Warrant Certificates
or Global Warrant Certificate which tax or other governmental charge
shall be paid by the appropriate Warrantholder or Registered Holder.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. (a) The Company hereby appoints
Chemical Bank ("Chemical") as the Warrant Agent of the Company in
respect of the Warrants, upon the terms and subject to the conditions
set forth herein; and Chemical 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. All of the terms and provisions with
respect to such powers and authority contained in any Warrant
Certificates or the Global Warrant Certificate are subject to and
governed by the terms and provisions hereof.
(b) Chemical covenants and agrees to maintain an office staffed by
qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Agreement, including, without limitation,
the computation of Cash Settlement Value 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, 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 Warrants shall be subject:
<PAGE>
<PAGE>
(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, 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 for, and to hold it 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, 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.
(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 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 thing suffered by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees,
may become the owner of, or acquire any 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 depository, 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 moneys at any time received by it pursuant to any of the
provisions of this Agreement nor shall it be obligated to segregate
such moneys from other moneys held by it, except as required by law.
<PAGE>
<PAGE>
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 tb the
validity or execution of the Warrant Certificates or the Global
Warrant Certificate (except its countersignature thereof).
(h) The recitals contained herein and in any Warrant Certificates
or the Global Warrant Certificate (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 herein specifically set forth, and no implied duties or obligations
shall be read into this Agreement 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 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.
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 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, 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
hereof, 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 Warrants, that there shall at all times be a Warrant Agent
hereunder until (i) all the Warrants are no longer outstanding or (ii)
until moneys for the payment of all outstanding Warrants, if any,
shall have been paid to the Warrant Agent and shall have been returned
to the Company as provided in Section 2.06, whichever occurs earlier.
(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<PAGE>
<PAGE>
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 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. 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.
(c) In case at any time the Warrant Agent shall give notice of its
intent to resign, or be removed, or become incapable of acting, or 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 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 the
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, trust,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive,
all moneys, securities and other property on deposit with or held by
such predecessor (including, without limitation, the Warrant
Register), as the Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation<PAGE>
<PAGE>
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 VI
MISCELLANEOUS
SECTION 6.01. AMENDMENT. (a) This Agreement and the terms of the
Warrants may be amended by the Company, the Warrant Agent and the
Determination Agent, without the consent of the Warrantholders, for
the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein
or therein or in any other manner which the Company may deem necessary
or desirable and which will not 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 countersigning by the Warrant Agent of Warrant Certificates evi-
dencing in the aggregate in excess of 1,150,000 Warrants unless and
until the Warrant Agent has received notice from the AMEX or any
successor United States national securities exchange that the
additional Warrants in excess of 1,150,000 have been approved for
listing on such exchange.
(b) The Company, the Warrant Agent and the Determination
Agent may modify or amend this Agreement, with the consent of
Warrantholders holding not less than a majority in number of the then
outstanding Warrants affected by such modification or amendment, for
any purpose; provided, however, that no such modification or amendment
that decreases the Strike Index, shortens the period of time during
which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Warrantholders or reduces
the percentage of the number of outstanding Warrants, 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, THE
WARRANT AGENT AND THE DETERMINATION AGENT. If the Warrant Agent or
the Determination Agent shall receive any notice or demand addressed
to the Company by any Warrantholder pursuant to the provisions of this
Agreement, the Warrant Agent or the Determination Agent, as the case
may be, shall promptly forward such notice or demand to the Company.
<PAGE>
<PAGE>
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications to
the Warrant Agent with respect to this Agreement shall be addressed to
Chemical Bank, 450 West 33rd Street, New York, New York 10001, Attn:
Corporate and Municipal Agency Department, 15th Floor (telephone:
(212) 971-3276; facsimile: (212) 971-3498), and any communications to
the Company with respect to this Agreement shall be addressed to The
Bear Stearns Companies Inc., 245 Park Avenue, New York, New York
10167, Attention: Secretary (telephone: (212) 272-4394; facsimile:
(212) 272-8904), and any communications to the Determination Agent
with respect to this Agreement shall be addressed to Bear, Stearns &
Co. Inc., 245 Park Avenue, New York, New York 10167, Attention: Tim
Murray (telephone: (212) 272-5138; facsimile: (212) 272-9857) (or
such other address as shall be specified in writing by the Warrant
Agent, the Company or the Determination Agent, respectively).
SECTION 6.04. NOTICES TO HOLDERS. The Company may cause to
have notice given to the holders of Warrants by providing the Warrant
Agent with a form of notice to be distributed by (i) in the case of
Certificated Warrants, the Warrant Agent to the Warrantholders or (ii)
in the case of Book-Entry Warrants, the Depository with a form of such
notice to be distributed by the Depository to Participants in
accordance with the custom and practices of the Depository.
SECTION 6.05. OBTAINING OF APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and
keep effective (a) any and all permits, consents and approvals of
governmental agencies and authorities and the AMEX or any successor
national securities exchange and (b) any and all filings or notices
under United States Federal and state securities laws, which may be or
become required in connection with the issuance, sale, trading,
transfer or delivery of the Warrant Certificates, the Global Warrant
Certificate or the exercise of the 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, the registered holder of the
Global Warrant Certificate 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, and their respective successors, the
registered holder of the Global Warrant Certificate 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,
<PAGE>
<PAGE>
Participants or any person certified by any Participant to be an indirect
participant of the Depository or any person certified by any Participant
to be a Warrantholder, in each case, on behalf of whom such Participant
holds Warrants.
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. APPLICABLE LAW. THIS AGREEMENT AND EACH
WARRANT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto as of the day and year first above written.
THE BEAR STEARNS COMPANIES INC.
By:_________________________________
Name:
Title:
CHEMICAL BANK
By:_________________________________
Name:
Title:
BEAR, STEARNS & CO. INC.
By:_________________________________
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
No. CUSIP No.
THE BEAR STEARNS COMPANIES INC.
Japan Index Put Warrants
Expiring ______ __, 1997
This Warrant Certificate certifies that
, or registered assigns, is the registered holder of
Japan Index Put Warrants Expiring ______ __, 1997 (the "Warrants").
Upon receipt by the Warrant Agent of this Warrant Certificate and the
notice of exercise on the reverse hereof (or a notice of exercise in
substantially identical form delivered herewith), duly completed and
executed, at the offices" of the Warrant Agent in the Borough of
Manhattan, The City of New York, each Warrant entitles the beneficial
owner thereof (each a "Warrantholder") to receive, subject to the
conditions set forth herein and in the Warrant Agreement, from The
Bear Stearns Companies Inc. (the "Company") the cash settlement value
in U.S. dollars (the "Cash Settlement Value") equal to the quotient
(rounded down to the nearest cent) of (A) the amount, if any, by which
the Strike Index (as defined herein) exceeds the closing level of the
Index (as defined herein), as calculated and published, on the
applicable Valuation Date for such Warrant (the "Spot Index"), divided
by (B) the Warrant Divisor (as defined herein); provided, however,
that if such amount is less than or equal to zero, then the Cash
Settlement Value shall be zero. In no event shall a Warrantholder be
entitled to any interest on any amount payable on the exercise
(including automatic exercise) of Warrants.
Subject to the terms of the Warrant Agreement, each Warrant
may be irrevocably exercised, in whole but not in part, at or prior to
3:00 p.m., New York City time, on any New York Business Day from its
date of issuance until 3:00 p.m., New York City time, on the New York
Business Day immediately preceding the earlier of (i) _____ __, 1997
(the "Expiration Date") or (ii) the Delisting Date (as defined
herein), at which time the Warrants shall expire and all Warrants
evidenced hereby shall be automatically exercised and otherwise shall
be void. Except in the case of automatic exercise or cancellation of
the Warrants, as set forth herein and in the Warrant Agreement, not
fewer than 500 Warrants may be exercised by or on behalf of any one
Warrantholder at any one time.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such<PAGE>
<PAGE>
further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
IN WITNESS WHEREOF, The Bear Stearns Companies Inc. has
caused this instrument to be duly executed.
Dated: ______________ __, 1994
THE BEAR STEARNS COMPANIES INC.
By:_____________________________
Name:
Title:
SEAL:
Attest:
By:_____________________________
Name:
Title:
Countersigned as of the date above written:
CHEMICAL BANK, as Warrant Agent
By:______________________________
Authorized Officer
<PAGE>
<PAGE>
FORM OF WARRANT CERTIFICATE
REVERSE
THE BEAR STEARNS COMPANIES INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a
Warrant Agreement, dated as of ____ __, 1994 (the "Warrant
Agreement"), among the Company, Chemical Bank (the "Warrant Agent")
and Bear, Stearns & Co. Inc. (the "Determination Agent") and is
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 and which Warrant
Agreement is hereby incorporated by reference in, and made a part of,
this Warrant Certificate. A copy of the Warrant Agreement is on file
at the Warrant Agent's Office (as defined herein).
The Warrants constitute direct, unconditional and unsecured
obligations of the Company and rank on a parity with the Company's
other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
Subject to the provisions hereof and of the Warrant
Agreement, each Warrant may be irrevocably exercised, in whole but not
in part, at or prior to 3:00 p.m., New York City time, on any New York
Business Day (as defined herein) from its date of issuance until 3:00
p.m., New York City time, on the New York Business Day immediately
preceding the earlier of (i) the Expiration Date or (ii) the Delisting
Date (as defined herein). The holder of Warrants evidenced by this
Warrant Certificate may exercise them by surrendering this Warrant
Certificate and attached notice of exercise (or a notice of exercise
in substantially identical form), duly completed and executed, to the
Warrant Agent's offices in the Borough of Manhattan, The City of New
York (the "Warrant Agent's Office"), which is, on the date hereof,
located at 450 West 33rd Street, New York, New York 10001. Not fewer
than 500 Warrants may be exercised by or on behalf of any one
Warrantholder at any one time.
The "Cash Settlement Value" of an exercised Warrant shall be
an amount in U.S. Dollars equal to the quotient (rounded down to the
nearest cent) of (A) the amount, if any, by which the Strike Index
exceeds the closing level of the Index, as calculated and published,
on the applicable Valuation Date (as defined herein) for such Warrant
(the "Spot Index"), divided by (B) the Warrant Divisor; provided,
however, that if such amount is less than or equal to zero, then the
Cash Settlement Value shall be zero.
The "Index" shall initially be the American Stock Exchange,
Inc. ("AMEX") Japan Index published by the AMEX (the "Japan Index").
Under certain circumstances set forth in the<PAGE>
<PAGE>
Warrant Agreement, a New Japan Index (as defined in the Warrant Agreement)
will be substituted for the Japan Index, in which event such New Japan
Index shall on and after the Substitution Date (as defined herein) (i) be
used in calculating any Cash Settlement Value or Alternative Settlement
Amount (as defined herein) for the Warrants for any Valuation Date and
(ii) be the "Index" for purposes of the Warrant Agreement and the Warrant
Certificates.
If the Japan Index is not published by the AMEX (or, if a
New Japan Index has been substituted, the New Japan Index is not
published by the AMEX or another United States national securities
exchange), but is published by another person not affiliated with the
Company and acceptable to the Company (the "Third Party"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Japan Index (or, if a New Japan Index has been
substituted, the New Japan Index) as published by such Third Party and
(ii) the Japan Index (or, if a New Japan Index has been substituted,
the New Japan Index) published by such Third Party shall be the
"Index" for purposes of the Warrant Agreement and the Warrant
Certificates. If the AMEX or any Third Party discontinues publication
of the Japan Index (or, if a New Japan Index has been substituted, the
New Japan Index) and publishes a successor or substitute index that
the Company determines, in its sole discretion, to be comparable to
the Japan Index (or, if a New Japan Index has been substituted, the
New Japan Index) (any such index being a "Successor Index"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Successor Index on such date and (ii) such Successor
Index shall be the "Index" for purposes of the Warrant Agreement and
the Warrant Certificates.
The "Strike Index" shall initially be _____ and the "Warrant
Divisor" shall initially be __. If a New Japan Index is substituted
for the Japan Index pursuant to the Warrant Agreement, the Strike
Index and the Warrant Divisor shall each be adjusted as provided in
the Warrant Agreement.
"Tokyo Business Day" means any day other than (i) a Saturday
or a Sunday, (ii) a day on which banks are not open for business in
Tokyo, or (iii) a day on which the Tokyo Stock Exchange (the "TSE"),
the Singapore International Monetary Exchange Ltd. (the "SIMEX") or
the Osaka Securities Exchange (the "OSE") is not open for business.
The Company has appointed Bear, Stearns & Co. Inc. to be the
Determination Agent to make such calculations as may be required upon
the occurrence of certain circumstances, as described in the Warrant
Agreement and herein, including, without limitation, calculation of
the Cash Settlement Value under certain circumstances or the
Alternative Settlement Amount, as applicable, of a Warrant. The
Determination Agent shall act as<PAGE>
<PAGE>
an independent expert and not as an agent of the Company, and, unless
otherwise provided by the Warrant Agreement, its calculations and
determinations under the Warrant Agreement and this Warrant Certificate
shall, absent manifest error, be final and binding on the Company, the
Warrant Agent and the Warrantholders.
In the event that the AMEX or the Third Party makes a
material change in the formula for, or the method of, calculating the
Index, the Determination Agent shall make such calculations as may be
required to determine the applicable Cash Settlement Value and/or
Alternative Settlement Amount using the formula and method of
calculating the Index as was in effect prior to such change or
modification.
If the AMEX and/or any Third Party discontinues publication
of the Index and, after giving effect thereto, there is no published
index used for purposes of determining the applicable Cash Settlement
Value and/or Alternative Settlement Amount, the Company will cause the
Determination Agent to determine the applicable Cash Settlement Value
and/or Alternative Settlement Amount based on the formula and method
used in calculating the Index as in effect on the date the Index was
last published.
The Determination Agent will have no responsibility for good
faith errors or omissions in calculating or disseminating information
regarding the Index, adjustments or calculations by the Determination
Agent in order to arrive at a calculation of a stock index comparable
to the Index or the Cash Settlement Value or the Alternative
Settlement Amount, as applicable.
Subject to the Warrant Agreement and this Warrant Certi-
ficate, and except in the event of an Extraordinary Event or Exercise
Limitation Event (as such terms are defined herein), the valuation
date (the "Valuation Date") for a Warrant shall be the first Index
Calculation Date (as defined herein) following the applicable Exercise
Date (as defined herein). The Exercise Date for a Warrant will be the
first New York Business Day on which the Warrant Agent has received
(i) in the case of Warrants other than those held through the
facilities of Cedel S.A. ("CEDEL") or the Euroclear System
("Euroclear"), the Warrant Certificate representing such Warrant, with
the notice of exercise below (or a notice of exercise in substantially
identical form delivered herewith), duly completed and executed, at or
prior to 3:00 p.m., New York City time; and if the Warrant Agent shall
receive any such Warrant Certificate or notice of exercise after 3:00
p.m., New York City time, on such date, then such Warrant Certificate
shall be deemed to have been received at or prior to 3:00 p.m., New York
City time, on the next succeeding New York Business Day (which shall be
considered the Exercise Date), and in such event the Valuation Date shall
be the next Index Calculation Date following the New York Business Day on
which the Warrant Agent is deemed to have received such Warrant
Certificate together with the notice of exercise or (ii) in the case
of Warrants held<PAGE>
<PAGE>
through the facilities of CEDEL or Euroclear, the
notice of exercise (by facsimile transmission) at or prior to 3:00
p.m., New York City time; provided that the Warrant Certificate is
received by the Warrant Agent by 3:00 p.m., New York City time, on the
applicable Valuation Date; and if the Warrant Agent shall receive such
notice of exercise after 3:00 p.m., New York City time, on such date,
then the notice of exercise shall be deemed to have been received at
or prior to 3:00 p.m., New York City time, on the next succeeding New
York Business Day (which shall be considered the Exercise Date), and
in such event the Valuation Date shall be the next Index Calculation
Date following the New York Business Day on which the Warrant Agent is
deemed to have received such notice of exercise; provided, however,
that if the Warrant Agent receives the Warrant Certificate after 3:00
p.m., New York City time, on the Valuation Date, then the Exercise
Date for such Warrant shall be the day on which such Warrant
Certificate is received or, if such day is not a New York Business
Day, the next succeeding New York Business Day, and the Valuation Date
for such Warrant shall be the first Index Calculation Date following
such Exercise Date; provided, further, however, in the case of
exercises by Euroclear Participants, Euroclear must by facsimile to
the Warrant Agent by 9:00 a.m., New York City time, on the Valuation
Date confirm that the Warrants will be received by the Warrant Agent
on such date, provided, that if such facsimile is received after 9:00
a.m., New York City time, on the Valuation Date, the Company will be
entitled to direct the Warrant Agent to reject the related notice of
exercise or waive the requirement for timely delivery of such
facsimile. Any Warrant Certificate received after 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) the Expiration Date or (ii) the effective date on which
the Warrants are delisted from, or permanently suspended from trading
(within the meaning of the Securities Exchange Act of 1934 and the
rules and regulations of the Securities and Exchange Commission
thereunder) on, the AMEX and not accepted at the same time for listing
on another United States national securities exchange (such effective
date being the "Delisting Date") or, in the case of Warrants held
through the facilities of CEDEL or Euroclear, after 3:00 p.m., New
York City time, on the first Index Calculation Date following such New
York Business Day, shall be deemed not to have been delivered and
the related notice of exercise shall be void and of no effect;
provided, however, that if the Company first receives notice of the
delisting or suspension of the Warrants on the same day on which such
Warrants are delisted or suspended, such day will nevertheless be
deemed the Delisting Date for purposes of the Warrant Agreement and
this Warrant Certificate.
If the notice of exercise is not rejected as provided in the
Warrant Agreement, then the Warrant Agent or the Determination Agent,
as the case may be, will determine the Cash Settlement Value of the
exercised Warrants in accordance with the terms of the Warrant
Agreement. Except in the case of Warrants subject to automatic
exercise and Warrants that upon exercise<PAGE>
<PAGE>
entitle the holder thereof to receive an Alternative Settlement Amount in
lieu of the Cash Settlement Value, if on any Valuation Date the Cash
Settlement Value for any Warrants then exercised would be zero, then in
such case, the exercise of such Warrants shall be ignored and the Warrant
Certificate evidencing such Warrants will be promptly returned by the
Warrant Agent to the registered holder of the Warrant by first class mail
at the Company's expense and such holder shall be permitted to re-
exercise such Warrants prior to the Expiration Date or the Delisting
Date.
Except in the case of Warrants subject to automatic exercise
and for Warrants that upon exercise entitle the holder thereof to
receive an Alternative Settlement Amount in lieu of the Cash
Settlement Value, payment shall be made available to the appropriate
holders on the fifth New York Business Day following the Valuation
Date for such Warrants (or, if the Valuation Date is not a New York
Business Day, on the fifth New York Business Day following the New
York Business Day next succeeding the Valuation Date) in the form of a
cashier's check or an official bank check, or (in the case of payments
of at least $100,000) by wire transfer to a U.S. dollar bank account
maintained by such holder in the United States (at the holder's
election as specified in the notice of exercise), in an amount equal
to the aggregate Cash Settlement Value of the exercised Warrants.
All Warrant Certificates for which the Warrant Agent has not
received a notice of exercise in proper form by 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) the Expiration Date or (ii) the Delisting Date, as the
case may be, or for which the Warrant Agent has received a notice of
exercise in proper form but with respect to which timely delivery of
the relevant Warrant Certificate has not been made, and which have not
been canceled prior to such time, will be deemed automatically
exercised on such New York Business Day without any requirement of a
notice of exercise to the Warrant Agent. The Exercise Date for such
Warrants shall be such New York Business Day and the Valuation
Date for such Warrants shall be the first Index Calculation Date
following the Exercise Date for such Warrants.
If the Company determines that an Extraordinary Event or an
Exercise Limitation Event has occurred and is continuing on the
Expiration Date or the Delisting Date, the Cash Settlement Value with
respect to the exercised Warrants shall be equal to, and be calculated
in the same manner and be payable at the same time as, the Alternative
Settlement Amount (treating the Expiration Date or the Delisting Date,
as the case may be, as the date on which the Warrants were canceled),
as provided below and in the Warrant Agreement.
Except as provided in the preceding paragraph, payment with
respect to automatically exercised Warrants shall be made available to
the appropriate registered holders of the Warrants in the form of a
<PAGE>
<PAGE>
cashier's check or an official bank check, or (in the case of payments
of at least $100,000) by wire transfer to a U.S. dollar bank account
maintained by such holder in the United States (at such holder's
election), on the fourth New York Business Day following the Valuation
Date for automatically exercised Warrants (or if such Valuation Date
is not a New York Business Day, on the fourth New York Business Day
following the New York Business Day next succeeding such Valuation
Date), against receipt by the Warrant Agent at the Warrant Agent's
Office from the holder of its Warrant Certificates. Such payment
shall be in the amount of the aggregate Cash Settlement Value in
respect of the Warrants evidenced by the Warrant Certificates that
were automatically exercised.
Anything in the Warrant Agreement or in this Warrant
Certificate to the contrary notwithstanding, if the Company determines
that an Extraordinary Event or an Exercise Limitation Event has
occurred and is continuing on the Tokyo Business Day with respect to
which the Spot Index on a Valuation Date is to be determined (the
"Applicable Tokyo Business Day"), then the Cash Settlement Value of
any Warrants in respect of an exercise shall be calculated on the
basis that the Valuation Date shall be the next Index Calculation Date
following such Applicable Tokyo Business Day on which there is no
Extraordinary Event or Exercise Limitation Event; provided, however,
that if the Cash Settlement Value of such Warrants is not calculated
on or prior to the Expiration Date or the Delisting Date, then the
Warrantholders will receive the Alternative Settlement Amount in lieu
of the Cash Settlement Value which shall be calculated as if the
Warrants had been canceled on the Expiration Date or the Delisting
Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing and if it is expected by the Company to
continue, the Company may immediately cancel the Warrants by notifying
the Warrant Agent of such cancellation (the date such Warrants are
canceled being the "Cancellation Date"), and each Warrantholder's
rights with respect to the Warrants and under the Warrant Agreement
shall thereupon cease; provided however, that each Warrant shall be
exercised (even if such Warrant would not otherwise be exercisable on
such date because of the Limit Option (as defined in the Warrant
Agreement)) on the basis that the Valuation Date for such Warrant shall
be the Cancellation Date and each Warrantholder shall have the right to
receive an Alternative Settlement Amount with respect to its Warrants.
The Company shall use its best efforts to notify the Warrantholders
promptly of such cancellation.
With respect to all Warrant Certificates as to which the
Valuation Date has been postponed or which have been canceled as
described above, payment shall be made available to the appropriate
registered holders of the Warrants on the third New York Business Day
following the date on which the Cash Settlement Value or Alternative
Settlement Amount, as the case may be, has been calculated, against<PAGE>
<PAGE>
receipt by the Warrant Agent at the Warrant Agent's Office from such
holder of its Warrant Certificates. Such payment shall be in the
amount of the aggregate Cash Settlement Value or Alternative
Settlement Amount, as the case may be, in respect of the Warrants
evidenced by such Warrant Certificates.
The "Alternative Settlement Amount" shall be an amount,
determined by the Determination Agent, which is equal to the amount
"X" calculated using the formula set forth below:
X = I + [(T/2) x (A/B)]
where
I = the Cash Settlement Value of the Warrants determined as
described above but calculated with a Spot Index
determined by the Determination Agent which, subject to
approval by the Company (such approval not to be unrea-
sonably withheld), in the reasonable opinion of the
Determination Agent, fairly reflects the value of the
stocks which comprise the Index on the Cancellation
Date;
T = U.S.$____, the initial offering price per Warrant;
A = the total number of days from but excluding the
Cancellation Date for such Warrants to and including
the Expiration Date; and
B = the total number of days from but excluding the date
the Warrants were initially sold to and including the
Expiration Date.
For purposes of determining "I" in the above formula, in
event that the Determination Agent and the Company are required, but
have not, after good faith consultation with each other and within
five days following the first day upon which such Alternative
Settlement Amount may be calculated in accordance with the above
formula, agreed upon a Spot Index which fairly reflects the value of
the stocks which comprise the Index on the Cancellation Date, then the
Determination Agent shall promptly nominate a third party, subject to
approval by the Company (such approval not to be unreasonably
withheld), to determine such figure and calculate the Alternative
Settlement Amount in accordance with the above formula. Such party
shall act as an independent expert and not as an agent of the Company
or the Determination Agent, and its calculation and determination of
the Alternative Settlement Amount shall, absent manifest error, be
final and binding on the Company, the Warrant Agent, the Determination
Agent and the Warrantholders. Any such calculations will be made
available to a Warrantholder for inspection at the Warrant Agent's
Office. Neither the Company, the Determination Agent nor such third
<PAGE>
<PAGE>
party shall have any responsibility for good faith errors or omissions
in calculating the Alternative Settlement Amount.
An "Extraordinary Event" shall mean any one of the events,
circumstances or causes listed below:
(i) a suspension or absence of trading on the TSE of
all the underlying stocks which then comprise the Index; or
(ii) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of
any U.S. or non-U.S. governmental authority or court that
would make it unlawful for the Company to perform any of its
obligations under the Warrant Agreement or the Warrants or
that has or, in the judgment of the Company, is likely to
have, a material adverse effect on the ability of the
Company to perform its obligations under the Warrants or to
modify the hedge of its position with respect to the Index;
or
(iii) any outbreak or escalation of hostilities or other
national or international calamity or crisis (including,
without limitation, natural calamities which, in the opinion
of the Company, may materially and adversely affect the
economy of Japan or the trading of securities generally on
the TSE) that has, or, in the judgment of the Company, is
likely to have, a material adverse effect on the ability of
the Company to perform its obligations under the Warrants or
to modify the hedge of its position with respect to the Index.
An "Exercise Limitation Event" shall mean any one of the
events, circumstances or causes listed below:
(i) a suspension or absence of trading on the TSE of
20% or more (in number) of the underlying stocks which then
comprise the Index; or
(ii) the suspension or material limitation on the
SIMEX, the OSE or the AMEX or any other major futures,
options or securities market of trading in futures or
options contracts related to the Nikkei 225 Index (or, in
the event of a substitution of the New Japan Index for the
Japan Index, the Nikkei 300 Index) or the Index.
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 registered owner hereof as the
absolute owner of the Warrants evidenced hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose
whatsoever, and as the person entitled to exercise the rights<PAGE>
<PAGE>
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.
The Warrant Agent shall, in accordance with the Warrant
Agreement, from time to time register the transfer of this Warrant
Certificate upon the records to be maintained by it for that purpose
at the Warrant Agent's Office upon surrender hereof, duly endorsed, or
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent duly executed, by the registered
holder(s) hereof or by their duly appointed legal representative or
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 member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to
the transferee(s).
As provided in the Warrant Agreement and subject to certain
limitations, this Warrant Certificate may be exchanged for other
Warrant Certificates, representing a like number of Warrants, upon
surrender to the Warrant Agent of this Warrant Certificate at the
Warrant Agent's Office.
No service charge shall be made for any registration of
transfer or exchange of this Warrant Certificate, 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 this Warrant Certificate,
other than exchanges pursuant to the Warrant Agreement not involving
any transfer.
Capitalized terms included herein but not defined herein
have the meanings assigned thereto in the Warrant Agreement.
References herein to "U.S. dollars", "U.S.$" or "$" are to
the lawful currency of the United States of America. As used herein,
a "New York Business Day" means any day other than a Saturday or a
Sunday in New York City or a day on which either the AMEX or the New
York Stock Exchange is not open for securities trading or commercial
banks in New York City are required or authorized by law or executive
order to remain closed; and an "Index Calculation Date" means any
Tokyo Business Day on which the Index is calculated and published.
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.
<PAGE>
<PAGE>
NOTICE OF EXERCISE
Chemical Bank
450 West 33rd Street
New York, New York 10001
1. This Notice DOES DOES NOT relate to
"Contingently Tendered Warrants" subject to a Limit Option, as
provided for in the Warrant Agreement. If any of the Warrants to
which this Notice of Exercise relates are Contingently Tendered
Warrants, ______________________ of such Warrants (not less than 500)
are Contingently Tendered Warrants and ____________ (must be either
zero or not less than 500) are not. If the Spot Index used to
determine the Cash Settlement Value of Contingently Tendered Warrants
is higher than the Reference Index by 5% or more, a Notice of Exercise
with respect to such Contingently Tendered Warrants shall be void and
of no effect (and shall be disregarded for all purposes of the Warrant
Agreement).
2. Subject to paragraph 1, the undersigned (the
"Owner") hereby irrevocably exercises Warrants
(the "Exercised Warrants") and delivers to you herewith a Warrant
Certificate or Certificates, registered in the Owner's name,
representing a number of Warrants at least equal to the number of
Exercised Warrants. Each beneficial owner of Warrants that is
exercising Warrants pursuant to this Notice of Exercise is exercising
no fewer than 500 Warrants.
3. The Owner hereby directs the Warrant Agent
(a) to pay the Cash Settlement Value, if any, with respect to the
Exercised Warrants:
By cashier's check or an official bank check;
or
By wire transfer to the following U.S. dollar bank
account in the United States:
(Minimum payments of $100,000 only)
Bank:
ABA Routing No.:
Account No.: Reference:
; and (b) if the number of Exercised Warrants is less than the number
of Warrants represented by the enclosed Warrant
<PAGE>
<PAGE>
Certificate, to deliver a Warrant Certificate representing
the unexercised Warrants to .
Dated: , 19
____________________________
(Owner)
by _________________________
Authorized Signature
Address:
Telephone: ( )
<PAGE>
<PAGE>
EXHIBIT A-1
FORM OF GLOBAL WARRANT CERTIFICATE
No. _______________CUSIP No. _________
THE BEAR STEARNS COMPANIES INC.
Global Warrant Certificate Representing
AMEX Japan Index Put Warrants
Expiring _________, 1997
This certifies that CEDE & CO., or registered assigns, is the
registered holder of AMEX Japan Index Put Warrants
Expiring _______ __, 1997 (the "Warrants"). Each Warrant entitles the
beneficial owner thereof (each a "Warrantholder") to receive, subject
to the conditions set forth herein and in the Warrant Agreement, from
The Bear Stearns Companies Inc. (the "Company") the cash settlement
value in U.S. dollars (the "Cash Settlement Value") equal to the
quotient (rounded down to the nearest cent) of (A) the amount, if any,
by which the Strike Index (as defined in the Warrant Agreement)
exceeds the closing level of the Index (as defined in the Warrant
Agreement) on the applicable Valuation Date for such Warrant (the
"Spot Index"), divided by (B) the Warrant Divisor (as defined in the
Warrant Agreement); provided, however, that if such amount is less
than or equal to zero, then the Cash Settlement Value shall be zero.
In no event shall a Warrantholder be entitled to any interest on any
amount payable on the exercise (including automatic exercise) of
Warrants.
Subject to the terms of the Warrant Agreement, each Warrant
may be irrevocably exercised, in whole but not in part, at or prior to
3:00 p.m., New York City time, on any New York Business Day (as
defined herein) from its date of issuance until 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) _______, 1997 (the "Expiration Date") or (ii) the
Delisting Date (as defined herein), at which time the Warrants shall
expire and all Warrants evidenced hereby shall be automatically
exercised and otherwise shall be void. The holder of Warrants
evidenced by this Warrant Certificate may exercise them only upon the
delivery of such Warrant free to the Warrant Agent and pursuant to an
irrevocable Notice of Exercise to the Warrant Agent from a Participant
(as defined in the Warrant Agreement) acting on behalf of such
Warrantholder. Except in the case of automatic exercise or
cancellation of the Warrants, as set forth herein and in the Warrant
Agreement, not fewer than 500 Warrants may be exercised by or on
behalf of any one Warrantholder at any one time.
This Global Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
<PAGE>
<PAGE>
The Warrants evidenced by this Global Warrant Certificate
are part of a duly authorized issue of Warrants issued by the Company
pursuant to a Warrant Agreement, dated as of ________ __, 1994 (the
"Warrant Agreement"), among the Company, Chemical Bank (the "Warrant
Agent") and Bear, Stearns & Co. Inc. (the "Determination Agent"), and
is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Warrantholders,
the entities through which such Warrantholders hold their beneficial
interests in the Warrants and the registered holder of this Global
Warrant Certificate consent by acceptance of this Warrant Certificate
by the Depository and which Warrant Agreement is hereby incorporated
by reference in and made a part of this Warrant Certificate. A copy
of the Warrant Agreement is on file at the Warrant Agent's Office,
which is located at 450 West 33rd Street, New York, New York 10001.
The Warrants constitute direct, unconditional and unsecured
obligations of the Company and rank on a parity with the Company's
other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
Subject to the Warrant Agreement and this Global Warrant
Certificate, and except in the event an Extraordinary Event or
Exercise Limitation Event (as such terms are defined in the Warrant
Agreement), the valuation date (the "Valuation Date") for a Warrant
shall be the first Index Calculation Date (as defined herein)
following the Exercise Date (as defined herein). The Exercise Date
for a Warrant will be the first New York Business Day (as defined
herein) on which the Warrant Agent has received (i) in the case of
Warrants other than those held through the facilities of Cedel S.A.
("CEDEL") or the Euroclear System ("Euroclear"), the Warrant, with the
Notice of Exercise (as defined in the Warrant Agreement) (or a Notice
of Exercise in substantially identical form delivered herewith), duly
completed and executed, at or prior to 3:00 p.m., New York City time;
and if the Warrant Agent shall receive any such Warrant or Notice of
Exercise after 3:00 p.m., New York City time, on such date, then such
Warrant shall be deemed to have been received at or prior to 3:00
p.m., New York City time, on the next succeeding New York Business Day
(which shall be considered the Exercise Date), and in such event the
Valuation Date shall be the next Index Calculation Date following the
New York Business Day on which the Warrant Agent is deemed to have
received such Warrant together with the Notice of Exercise or (ii) in
the case of Warrants held through the facilities of CEDEL or
Euroclear, the Notice of Exercise (by facsimile transmission) at or
prior to 3:00 p.m., New York City time; provided that the Warrant is
received by the
<PAGE>
<PAGE>
Warrant Agent by 3:00 p.m., New York City time, on the applicable
Valuation Date; and if the Warrant Agent shall receive such Notice of
Exercise after 3:00 p.m., New York City time, on any New York Business
Day, then the Notice of Exercise shall be deemed to have been received
at or prior to 3:00 p.m., New York City time, on the next succeeding
New York Business Day (which shall be considered the Exercise Date),
and in such event the Valuation Date shall be the next Index
Calculation Date following the New York Business Day on which the
Warrant Agent is deemed to have received such Notice of Exercise;
provided, however, that if the Warrant Agent receives the Warrant
after 3:00 p.m., New York City time, on the Valuation Date, then the
Exercise Date for such Warrant shall be the day on which such Warrant
is received or, if such day is not a New York Business Day, the next
succeeding New York Business Day, and the Valuation Date for such
Warrant shall be the first Index Calculation Date following such
Exercise Date; provided, further, however, in the case of exercises by
Euroclear Participants, Euroclear must by facsimile to the Warrant
Agent by 9:00 a.m., New York City time, on the Valuation Date confirm
that the Warrants will be received by the Warrant Agent on such date,
provided that if such facsimile is received after 9:00 a.m., New York
City time, on the Valuation Date, the Company will be entitled to
direct the Warrant Agent to reject the related Notice of Exercise or
waive the requirement for timely delivery of such facsimile. Any
Warrant received after 3:00 p.m., New York City time, on the New York
Business Day immediately preceding the earlier of (i) the Expiration
Date or (ii) the effective date on which the Warrants are delisted
from, or permanently suspended from trading (within the meaning of the
Securities Exchange Act of 1934 and the rules and regulations of the
Securities and Exchange Commission thereunder) on, the AMEX and not
accepted at the same time for listing on another United States
national securities exchange (such effective date being the "Delisting
Date") (or, in the case of Warrants held through the facilities of
CEDEL or Euroclear, after 3:00 p.m., New York City time, on the first
Index Calculation Date following such New York Business Day), shall be
deemed not to have been delivered and the related Notice of Exercise
shall be void and of no effect; provided, however, that if the Company
first receives notice of the delisting or suspension of the Warrants
on the same day on which such Warrants are delisted or suspended, such
day will nevertheless be deemed the Delisting Date for purposes of the
Warrant Agreement and this Global Warrant Certificate.
All Warrants for which the Warrant Agent has not received a
Notice of Exercise in proper form by 3:00 p.m., New York City time, on
the New York Business Day immediately preceding the earlier of (i) the
Expiration Date or (ii) the Delisting Date, as the case may be, or for
which the Warrant Agent has received a notice of exercise in proper
form but with respect to which timely delivery of the related Warrant
has not been made, and which have not been canceled prior to such time,
will be deemed automatically exercised on such New York Business Day
without any requirement of a Notice of Exercise to the Warrant Agent.
The Exercise Date for such Warrants shall be such New York Business
Day and the Valuation Date for such Warrants shall be the first Index
Calculation Date following the Exercise Date for such Warrants.
<PAGE>
<PAGE>
If the Company determines that an Extraordinary Event or an
Exercise Limitation Event has occurred and is continuing on the
Expiration Date or the Delisting Date, the Cash Settlement Value with
respect to the exercised Warrants shall be equal to, and be calculated
in the same manner as, an Alternative Settlement Amount (treating the
Expiration Date or the Delisting Date, as the case may be, as the date
on which the Warrants were canceled), as provided below and in the
Warrant Agreement.
Anything in the Warrant Agreement or in this Global Warrant
Certificate to the contrary notwithstanding, if the Company determines
that an Extraordinary Event or an Exercise Limitation Event has
occurred and is continuing on the Tokyo Business Day (as defined
herein) with respect to which the Spot Index on a Valuation Date is to
be determined (the "Applicable Tokyo Business Day"), then the Cash
Settlement Value of any Warrants in respect of an exercise shall be
calculated on the basis that the Valuation Date shall be the next
Index Calculation Date following such Applicable Tokyo Business Day on
which there is no Extraordinary Event or Exercise Limitation Event;
provided, however, that if the Cash Settlement Value of such Warrants
is not calculated on or prior to the Expiration Date or the Delisting
Date, then the Warrantholders will receive the Alternative Settlement
Amount in lieu of the Cash Settlement Value which shall be calculated
as if the Warrants had been canceled on the Expiration Date or the
Delisting Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing and if it is expected by the Company to
continue, the Company may immediately cancel the Warrants by notifying
the Warrant Agent of such cancellation (the date such Warrants are
canceled being the "Cancellation Date"), and each Warrantholder's
rights with respect to the Warrants and under the Warrant Agreement
shall thereupon cease; provided however, that each Warrant shall be
exercised (even if such Warrant would not otherwise be exercisable on
such date because of the Limit Option (as defined in the Warrant
Agreement)) on the basis that the Valuation Date for such Warrant
shall be the Cancellation Date and each Warrantholder shall have the
right to receive an Alternative Settlement Amount with respect to its
Warrants. The Company shall use its best efforts to notify the
Warrantholders promptly of such cancellation.
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 registered owner hereof as the
absolute owner of the Warrants evidenced hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose
whatsoever, 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.
<PAGE>
<PAGE>
The Warrant Agent shall, in accordance with the Warrant
Agreement, from time to time register the transfer of this Global
Warrant Certificate in its records (which may be maintained
electronically) to be maintained by it for that purpose at the Warrant
Agent's Office upon surrender hereof, duly endorsed, or accompanied by
a written instrument or instruments of transfer in form satisfactory
to the Warrant Agent duly executed, by the registered holder hereof or
by the duly appointed legal representative or duly authorized attorney
thereof, such signature to be guaranteed by a bank or trust company
with a correspondent office in the City of New York or by a member of
a national securities exchange. Upon any such registration of
transfer, a New Global Warrant Certificate shall be issued to the
transferee(s).
Exercises of Warrants are subject to the Limit Option as
provided in the Warrant Agreement.
Capitalized terms included herein but not defined herein
have the meanings assigned thereto in the Warrant Agreement.
References herein to "U.S. dollars", "U.S.$" or "$"
are to the lawful currency of the United States of America. As used
herein, a "New York Business Day" means any day other than a Saturday,
Sunday or a day on which either the AMEX or the New York Stock
Exchange is not open for securities trading or commercial banks in New
York City are required or authorized by law or executive order to
remain closed; a "Tokyo Business Day" means any day other than (i) a
Saturday or a Sunday, (ii) a day on which banks are not open for
business in Tokyo or (iii) a day on which the Tokyo Stock Exchange
(the "TSE"), the Singapore International Monetary Exchange Ltd. (the
"SIMEX") or the Osaka Securities Exchange (the "OSE") is not open for
business; and an "Index Calculation Date" means any Tokyo Business Day
on which the Index is calculated and published.
The Warrant Agreement and the terms of the Warrants are
subject to amendment, as provided in the Warrant Agreement.
THIS GLOBAL WARRANT CERTIFICATE SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
<APGE>
IN WITNESS WHEREOF, The Bear Stearns Companies Inc. has
caused this instrument to be duly executed.
Dated: , 1994 THE BEAR STEARNS COMPANIES INC.
By_____________________________
Name:
Title:
Corporate Seal:
Attest:
By_____________________
Secretary
Countersigned as of the date above written:
CHEMICAL BANK, as Warrant Agent
By_____________________
Authorized Officer
<PAGE>
<PAGE>
EXHIBIT A-2
NOTICE OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
Chemical Bank
450 West 33rd Street
New York, New York 10001
(Facsimile: (212) 422-2648)
(Telephone: (212) 623-0692)
1. We refer to the Warrant Agreement, dated as of _______, 1994
(the "Warrant Agreement"), among The Bear Stearns Companies (the
"Company"), Chemical Bank, as warrant agent (the "Warrant Agent"), and
Bear, Stearns & Co. Inc., as determination agent (the "Determination
Agent"). On behalf of certain beneficial owners, each of whom is
exercising no fewer than 500 Warrants that are covered by this Notice
of Exercise and whose Warrants have been, or will be, transferred to
the Warrant Agent in accordance with the provisions of the
Representations Letter, we hereby irrevocably exercise
Warrants (the "Tendered Warrants"). We hereby acknowledge that the
Warrants being exercised and this Notice of Exercise must be received
by you by 3:00 p.m., New York City time, on a New York Business Day in
order for the Valuation Date for the Tendered Warrants to be the Index
Calculation Date following such New York Business Day and that, if the
Warrants being exercised and this Notice of Exercise are received by
you after 3:00 p.m., New York City time, on a New York Business Day
(or, in the case of Warrants held through CEDEL or Euroclear, if the
Warrants are not received by 3:00 p.m., New York City time, on the
first Index Calculation Date following such New York Business Day),
the Valuation Date of the Tendered Warrants shall be the Index
Calculation Date next succeeding the New York Business Day on which
you have received or are deemed to have received by 3:00 P.M., New
York City Time, on such New York Business Day the Tendered Warrants
and this Notice of Exercise, in each case subject to certain
provisions of the Warrant Agreement.
2. If you determine that this Notice of Exercise has not
been duly completed or is not in proper form, this Notice of Exercise
will be void and of no effect and will be deemed not to have been
delivered.
3. We hereby direct you to make payment to us of amounts
payable to our clients as a result of the exercise of the Warrants
hereunder as follows:
By cashier's check or an official bank check;
or
<PAGE>
<PAGE>
By wire transfer to the following U.S. dollar bank account
in the United States:
(Minimum payments of $100,000 only)
Bank:
Account No.:
ABA Routing No.:
Reference:
4. The exercised Warrants covered hereby
ARE ARE NOT subject to the Limit Option.<F1>
FOR PARTICIPANTS - 5. We hereby certify that we are a
Participant of The Depository Trust Company (the "Depository") with
the present right to use and receive its services.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
Dated: , 19
NAME OF DEPOSITORY
PARTICIPANT
Participant Number
NAME OF EUROCLEAR
PARTICIPANT
NAME OF CEDEL
PARTICIPANT
By___________________________
Authorized Signature
Address:
Telephone: ( )
<F1> A separate Notice of Exercise shall be submitted with
respect to Warrants subject to the Limit Option and
Warrants not subject to the Limit Option.
<PAGE>
<PAGE>
EXHIBIT B
CONFIRMATION OF EXERCISE
For Warrants Represented by Warrant Certificates
We hereby confirm receipt of your Notice of Exercise with respect to
Warrants (the "Exercised Warrants") and the related
Warrant Certificates, which we have found to be duly completed and in
proper form. The Valuation Date of the Exercised Warrants was the
close of business on ________________, 19__.
We hereby confirm that the aggregate Cash Settlement Value of the
Exercised Warrants is $ ($ per Warrant), which will
be made available to you in the form of a cashier's check or an
official bank check, or by wire transfer to the bank account
designated in your Irrevocable Notice of Exercise, in New York
Clearing House funds, for payment on the fifth New York Business Day
following the Valuation Date for such Warrants (or, if such Valuation
Date is not a New York Business Day, on the fifth New York Business
Day following the New York Business Day next succeeding the Valuation
Date for such Warrants).
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement, dated as of
__________, 1994, among The Bear Stearns Companies, Inc., Chemical
Bank and Bear, Stearns & Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B
NOTICE OF REJECTION
You are hereby notified that [the Notice of Exercise delivered by you
was determined by us not to have been properly completed in proper
form] [we did not receive from Euroclear a Euroclear Confirmation that
proper delivery of the Warrants to which the Notice of Exercise
delivered by you relates would be made on a timely basis, as set forth
in the Warrant Agreement, dated as of ____________, 1994, among The
Bear Stearns Companies Inc., Chemical Bank and Bear, Stearns & Co.
Inc.]. Accordingly, we have rejected your Notice of Exercise being
unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Warrant Agreement.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B-1
CONFIRMATION OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
We hereby confirm receipt of your Notice of Exercise with respect
toWarrants (the "Exercised Warrants") which were transferred by you
(or on your behalf) to our DTC Participant Account No. .
Such Notice we have found to be duly completed and in proper form.
The Valuation Date of Exercised Warrants was the close of business
on __________________, 19___.
[As set forth in your Notice of Exercise, none of the Warrants covered
thereby is subject to the Limit Option. Accordingly, for purposes
hereof, all such Warrants shall constitute Exercised Warrants which
number we hereby confirm to be .] [Your Notice of
Exercise stated that the Warrants covered thereby are subject to the
Limit Option. The applicable Reference Index for such Warrants is
and the Spot Index for the date that would otherwise be the
Valuation Date for such Warrants is . Such Spot Index
does not exceed such Reference Index by 5% or more. Accordingly, for
purposes hereof, all such Warrants shall constitute Exercised
Warrants. We hereby confirm the number of such Exercised Warrants to
be .]
We hereby confirm that the aggregate Cash Settlement Value
of the Exercised Warrants is $ ($
per Warrant), which will be made available to you in the form of a
cashier's check or an official bank check, or wire transfer to the
bank account designated in your Irrevocable Notice of Exercise, in New
York Clearing House funds, for payment on the fifth New York Business
Day following the Valuation Date for such Warrants (or, if such
Valuation Date is not a New York Business Day, on the fifth New York
Business Day following the New York Business Day next succeeding the
Valuation Date for such Warrants).
<PAGE>
<PAGE>
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement dated as of
________, 1994, among The Bear Stearns Companies Inc., Chemical Bank,
as Warrant Agent, and Bear, Stearns & Co. Inc., as Determination
Agent.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B-1
NOTICE OF REJECTION
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
Witness:
You are hereby notified that [the Notice of Exercise delivered by you
was determined by us not to have been properly completed in proper
form] [we did not receive from Euroclear a Euroclear Confirmation that
proper delivery of the Warrants to which the Notice of Exercise
delivered by you relates would be made on a timely basis, as set forth
in the Warrant Agreement, dated as of ________, 1994, among The Bear
Stearns Companies, Inc., Chemical Bank, as Warrant Agent, and Bear,
Stearns & Co. Inc.]. Accordingly, we have rejected your Notice of
Exercise being unsatisfactory as to form.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_________________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT C-1
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by Warrant Certificates
We refer to your Notice of Exercise dated , 19 , with
respect toWarrants that were subject to the Limit Option. The
applicable Reference Index for such Warrants isand the Spot Index for
the date that would otherwise be the Valuation Date for such Warrants
is . Such Spot Index is higher than the Reference Index
on the Exercise Date (or if such date was not an Index Calculation
Date, on the Index Calculation Date prior to the Exercise Date for
such Warrants) by 5% or more. Accordingly, we have rejected such
Notice of Exercise pursuant to the Limit Option.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Warrant Agreement dated as of __________,1994,
among The Bear Stearns Companies Inc., Chemical Bank and Bear, Stearns
& Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT C-2
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by the Global Warrant Certificate
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
Witness:
We refer to your Notice of Exercise dated ,
19 , with respect to Warrants that were subject to the Limit Option.
The applicable Reference Index for such Warrants is and
the Spot Index for the date that would otherwise be the Valuation Date
for such Warrants is . Such Spot Index is higher than the Reference
Index on the Exercise Date (or if such date was not an Index
Calculation Date, on the Index Calculation Date prior to the Exercise
Date for such Warrants) by 5% or more. Accordingly, we have rejected
such Notice of Exercise pursuant to the Limit Option.
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement dated as of
____________, 1994, among The Bear Stearns Companies Inc., Chemical
Bank and Bear, Stearns & Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
THE BEAR STEARNS COMPANIES INC.
and
CHEMICAL BANK, as Warrant Agent
and
BEAR, STEARNS & CO. INC., as Determination Agent
WARRANT AGREEMENT
_______ __, 1994
Japan Index Put Warrants
Expiring __________, 1997
<PAGE>
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANT CERTIFICATES AND GLOBAL WARRANT
CERTIFICATE . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Issuance of Warrants . . . . . . . . . 1
SECTION 1.02. Form, Execution and Delivery
of Warrant Certificates . . . . . . . 3
SECTION 1.03. Warrant Certificates . . . . . . . . 3
SECTION 1.04. Registration of Transfers and
Exchanges. . . . . . . . . . . . . . . 4
SECTION 1.05. Mutilated or Missing Warrant
Certificates . . . . . . . . . . . . . 5
SECTION 1.06. Registered Holders . . . . . . . . . . 6
SECTION 1.07. Global Warrant Certificate . . . . . . 6
ARTICLE II DURATION AND EXERCISE OF WARRANTS . . . . . . . . . 8
SECTION 2.01. Duration of Warrants; Minimum
Exercise Amounts; Notice of
Exercise . . . . . . . . . . . . . . 8
SECTION 2.02. Exercise and Delivery of
Warrants . . . . . . . . . . . . . . 10
SECTION 2.03. Automatic Exercise of Warrants; Exercise
upon an Extraordinary
Event or Exercise Limitation Event . 20
SECTION 2.04. Covenant of the Company . . . . . . . 26
SECTION 2.05. Return of Money Held Unclaimed
for Two Years . . . . . . . . . . . . 26
SECTION 2.06. Return of Global Warrant Certificate 26
SECTION 2.07. Substitution of New Japan Index . . . 27
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF
WARRANTHOLDERS . . . . . . . . . . . . . . . . . . . 29
SECTION 3.01. Warrantholder of Warrant May
Enforce Rights . . . . . . . . . . . 29
ARTICLE IV WARRANTS ACQUIRED BY THE COMPANY;
PAYMENT OF TAXES . . . . . . . . . . . . . . . . . . 29
SECTION 4.01. Warrants Acquired by the Company . . 29
SECTION 4.02. Payment of Taxes . . . . . . . . . . 29
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ARTICLE V CONCERNING THE WARRANT AGENT . . . . . . . . . . . . 30
SECTION 5.01. Warrant Agent . . . . . . . . . . . . 30
SECTION 5.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . 30
SECTION 5.03. Resignation and Appointment of
Successor . . . . . . . . . . . . . . 32
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 34
SECTION 6.01. Amendment . . . . . . . . . . . . . . 34
SECTION 6.02. Notices and Demands to the
Company, the Warrant Agent and
the Determination Agent . . . . . . . 34
SECTION 6.03. Addresses for Notices . . . . . . . . 34
SECTION 6.04. Notices to Holders . . . . . . . . . 35
SECTION 6.05. Obtaining of Approvals . . . . . . . 35
SECTION 6.06. Persons Having Rights Under
This Agreement . . . . . . . . . . . 35
SECTION 6.07. Inspection of Agreement . . . . . . . 35
SECTION 6.08. Headings . . . . . . . . . . . . . . 36
SECTION 6.09. Counterparts . . . . . . . . . . . . 36
SECTION 6.10. APPLICABLE LAW . . . . . . . . . . . 36
EXHIBITS
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EXHIBIT A - FORM OF WARRANT CERTIFICATE
EXHIBIT A-1 - FORM OF GLOBAL WARRANT CERTIFICATE
EXHIBIT A-2 - NOTICE OF EXERCISE FOR WARRANTS REPRESENTED BY THE
GLOBAL WARRANT CERTIFICATE
EXHIBIT B - CONFIRMATION OF EXERCISE FOR WARRANTS REPRESENTED BY
WARRANT CERTIFICATES
EXHIBIT B - NOTICE OF REJECTION FOR WARRANTS REPRESENTED BY
WARRANT CERTIFICATES
EXHIBIT B-1 - CONFIRMATION OF EXERCISE FOR WARRANTS REPRESENTED BY
THE GLOBAL WARRANT CERTIFICATE
EXHIBIT B-1 - NOTICE OF REJECTION FOR WARRANTS REPRESENTED BY
GLOBAL WARRANT CERTIFICATE
EXHIBIT C-1 - NOTICE OF REJECTION RELATING TO LIMIT OPTION FOR
WARRANTS REPRESENTED BY WARRANT CERTIFICATES
EXHIBIT C-2 - NOTICE OF REJECTION RELATING TO LIMIT OPTION FOR
WARRANTS REPRESENTED BY THE GLOBAL WARRANT
CERTIFICATE
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of ____ __, 1994, among THE BEAR STEARNS
COMPANIES INC., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), CHEMICAL BANK, a corporation
organized and existing under the laws of the State of New York (the
"Warrant Agent"), and BEAR, STEARNS & CO. INC., a corporation
organized and existing under the laws of the State of Delaware (the
"Determination Agent").
WHEREAS, the Company proposes to sell put warrants
(collectively, the "Warrants" or, individually, a "Warrant")
representing the right to receive from the Company the amount, if any,
in U.S. dollars determined by reference to decreases in the Index
(as defined herein) on the terms and conditions set forth in this
Agreement; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, transfer and exercise of the Warrants;
WHEREAS, the Company desires 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
canceled.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM,
EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES AND
GLOBAL WARRANT CERTIFICATE
SECTION 1.01. ISSUANCE OF WARRANTS. (a) The Warrants will
constitute direct, unconditional and unsecured contractual obligations
of the Company and will rank on a parity with the Company's other
unsecured contractual obligations and with the Company's unsecured and
unsubordinated debt.
(b) Each Warrant shall represent the right, upon exercise
(including automatic exercise) subject to the provisions contained herein,
to receive the Cash Settlement Value or the Alternative Settlement
Amount, as the case may be (each as defined herein), of such Warrant.
In no event shall a registered or beneficial holder of a Warrant
(each, a "Warrantholder" and collectively, the "Warrantholders") be
entitled to receive any
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interest on any Cash Settlement Value or Alternative Settlement
Amount.
(c) Forty-five calendar days after _____ __, 1994, each
Warrantholder will have the option to convert the form in which such
Warrantholder holds his Warrants from certificated to book-entry form
(the "Conversion Option"). The Conversion Option will be available
for forty-five calendar days from _____ __, 1994 through _______ __,
1994 (the "Conversion Option Period"). To utilize the Conversion
Option, a Warrantholder must deliver or arrange to deliver his
Warrants to an entity (a "Participant") entitled to execute, clear and
settle transactions through the Depository (as defined herein) through
which such Warrantholder's beneficial interest in his Warrants will be
maintained after electing the Conversion Option, who will then deposit
the Warrants with the Depository or its nominee. Once a Warrantholder
has elected the Conversion Option, such Warrantholder may hold his
Warrants only in book-entry form and will not be able to change his
election or withdraw from the book-entry system during the Conversion
Option Period or thereafter. Accordingly, except as hereinafter
provided, ownership of the Warrants in certificated form will no
longer be available to Warrantholders who have elected the Conversion
Option and ownership of the Warrants surrendered under the Conversion
Option will be represented by a single certificate (the "Global
Warrant Certificate"); provided, however, that if the Depository is at
any time unwilling or unable to continue as securities depository for
the Warrants and a successor securities depository is not appointed by
the Company within 90 days, the Company will reissue Warrant
Certificates (as defined herein) 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 Warrant Certificates in exchange for the
Global Warrant Certificate. In either instance, and in accordance
with the provisions of this Agreement, each Warrantholder will be
entitled to have the number of Warrants equivalent to such
Warrantholder's beneficial interest in the Global Warrant Certificate
registered in the name of the Warrantholder and will be entitled to
physical delivery of such Warrants in certificated form by a
Participant. The provisions of Section 1.07 shall apply only if and
when the Conversion Option is utilized and a Global Warrant
Certificate is issued hereunder. Unless the context shall otherwise
require, and subject to the provisions of Section 1.07, all references
in this Agreement to the Warrant Certificates (other than in Sections
1.02, 1.03, 1.04, 1.05, 1.06 and 1.07) shall include the Global
Warrant Certificate in the event that the Global Warrant Certificate
is issued.
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SECTION 1.02. FORM, EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES. (a) The Warrants, whenever issued, shall be
represented by certificates in registered form substantially in the
form set forth in Exhibit A hereto (the "Warrant Certificates"), with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may
represent any number of whole 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 which 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 any
securities depository, or to conform to usage. Warrant Certificates
shall be signed on behalf of the Company by its chairman, its
president or one of its vice presidents and under its corporate seal
reproduced thereon and attested by its secretary or an assistant
secretary. 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.
(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 officer of the Company. In addition, the 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.
SECTION 1.03. WARRANT CERTIFICATES. Each Warrant
Certificate, when signed on behalf of the Company in accordance with
Section 1.02, shall be delivered to the Warrant Agent, which shall
manually countersign and deliver the same to or upon the order of the
Company. Each Warrant Certificate shall be dated the date of its
countersignature. A Warrant Certificate shall not be valid for any
purpose, and no Warrant evidenced thereby shall be exercisable, unless
and until such Warrant Certificate has been countersigned by the
manual signature of an authorized
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officer of the Warrant Agent. Such countersignature by an authorized
officer of the Warrant Agent upon any Warrant Certificate signed by
the Company in accordance with Section 1.02 shall be conclusive
evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
SECTION 1.04. REGISTRATION OF TRANSFERS AND EXCHANGES. (a)
Except as otherwise provided herein or in the Warrant Certificate, the
Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's
Office (as defined herein), subject to such reasonable regulations as
the Company or the Warrant Agent may prescribe, upon surrender
thereof, duly endorsed, 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) 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 member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to
the transferee(s) and the surrendered Warrant Certificate shall be
canceled by the Warrant Agent.
(b) At the option of a Warrantholder, Warrant Certificates
may be exchanged for other Warrant Certificates, representing a like
number of Warrants, upon surrender to the Warrant Agent of the Warrant
Certificates to be exchanged at its offices maintained for such
purpose (the location of which shall be provided to the Company),
which shall be in the Borough of Manhattan, the City of New York (the
"Warrant Agent's Office"), and which is, on the date of this
Agreement, 450 West 33rd Street, New York, New York 10001 or at the
office of any successor Warrant Agent (as provided in Section 5.03).
Upon surrender of any 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, in
accordance with Sections 1.02 and 1.03, one or more new Warrant
Certificates of like tenor and representing a like number of
unexercised Warrants.
(c) Warrant Certificates issued upon transfer or exchange
pursuant to Section 1.04(a) or (b) shall be valid obligations of the
Company, evidencing the same obligations of the Company as the Warrant
Certificates surrendered for transfer or exchange, and entitled to the
same benefits under this Agreement as were such Warrant Certificates
prior to such surrender.
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(d) Except as provided in Section 1.05, 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 1.04 not
involving any transfer.
(e) In the event that upon any exercise of Warrants
evidenced by a Warrant Certificate the number of Warrants exercised
shall be less than the total number of Warrants evidenced by such
Warrant Certificate, there shall be issued to the holder thereof or
his assignee a new Warrant Certificate evidencing the number of
Warrants not exercised.
SECTION 1.05. MUTILATED OR MISSING WARRANT CERTIFICATES.
(a) If any Warrant Certificate 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,
and upon cancellation of, the mutilated Warrant Certificate, or in
replacement of the Warrant Certificate lost, stolen or destroyed, a
new Warrant Certificate of like tenor and representing an equivalent
number of Warrants, bearing an identification number 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 all of the Warrants represented 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, direct the Warrant Agent to treat such Warrant
Certificate the same as if it had received irrevocable notice of
exercise in proper form in respect thereof, as provided herein, or as
being subject to automatic exercise, as the case may be.
(c) Each new Warrant Certificate issued pursuant to this
Section 1.05 in replacement of any lost, stolen or destroyed Warrant
Certificate shall be an original, additional contractual obligation of
the Company and shall be entitled to the same benefits under this
Agreement as the Warrant Certificate that was lost, stolen or
destroyed.
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(d) Upon the issuance of any new Warrant Certificate in
accordance with this Section 1.05, 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 1.05 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 1.06. REGISTERED HOLDERS. 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
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 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. This Section
1.06 shall be without prejudice to the rights of Warrantholders as
described elsewhere herein.
SECTION 1.07. GLOBAL WARRANT CERTIFICATE. (a) Any Global
Warrant Certificate issued in accordance with this Section 1.07 shall
be substantially in the form set forth in Exhibit A-1 hereto, with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may
represent any number of whole Warrants. 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 which 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 any securities depository referred to herein, or to conform to
usage. The Global Warrant Certificate shall be signed on behalf of
the Company upon the same conditions, in substantially the same manner
and with the same effect, as the Warrant Certificates.
(b) The Warrant Agent is authorized, from time to time
during the Conversion Option Period, upon receipt of a Global Warrant
Certificate from the Company, duly executed on behalf of
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the Company, to countersign such Global Warrant Certificate. The
Global Warrant Certificate shall be manually countersigned and dated
the date of its countersignature by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Warrant Agent
shall deliver the Global Warrant Certificate to or upon the order of
the Company against receipt of an appropriate amount of Certificated
Warrants (as defined herein; such Certificated Warrant shall be
destroyed or otherwise disposed of in accordance with instructions
provided by the Company). One or more Global Warrant Certificates may
be executed by the Company and delivered to the Warrant Agent on or
after the date of execution of this Agreement; provided that only one
Global Warrant Certificate shall be outstanding at any one time.
The Company reserves the right to issue, from time to time
after the date of execution of this Agreement, additional Warrants,
which Warrants shall in all respects be identical to Warrants
previously issued and outstanding under this Agreement, and in
connection therewith the Global Warrant Certificate may be exchanged
for a new Global Warrant Certificate to reflect the issuance by the
Company of such additional Warrants. To effect such an exchange, the
Company shall deliver to the Warrant Agent a new Global Warrant
Certificate duly executed on behalf of the Company as provided in
Section 1.02. The Warrant Agent shall countersign the new Global
Warrant Certificate as provided in this Section 1.07 and shall deliver
the new Global Warrant Certificate to the Depository in exchange for,
and upon receipt of, the Global Warrant Certificate then held by the
Depository. The Warrant Agent shall cancel the Global Warrant
Certificate delivered to it by the Depository, destroy such Global
Warrant Certificate and provide a certificate with respect to such
destruction to the Company.
(c) The Global Warrant Certificate will initially be
registered in the name of a nominee of The Depository Trust Company,
New York, New York (the "Depository", which term, as used herein,
includes any successor securities depository selected by the Company).
The interest of each Participant in the Global Warrant Certificate
will be recorded on the books of the Depository. The beneficial
interest of each customer of a Participant in the Global Warrant
Certificate and the identity of such customer will be reflected on the
books and records of such Participants and will not be known to the
Warrant Agent, the Company or the Depository. The Global Warrant
Certificate will be held by the Depository or its agent.
The Company may from time to time select a new entity to act
as Depository with respect to the Warrants. If such selection is
made, the Company shall promptly give the Warrant
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Agent notice to such effect identifying the new Depository, and the
Global Warrant Certificate shall be delivered to the Warrant Agent and
shall be transferred to the new Depository as provided below as
promptly as possible. Appropriate changes may be made in the forms of
the Global Warrant Certificate, the notice of exercise and the related
notices to be delivered in connection with an exercise to reflect the
selection of the new Depository.
(d) 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 its records
(which may be maintained electronically), subject to such reasonable
regulations as the Company or the Warrant Agent may prescribe, only to
the Depository, to a nominee of the Depository, to a successor
Depository or to a nominee of a successor Depository, upon surrender
of such Global Warrant Certificate duly endorsed, 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 thereof or by the duly appointed legal representative thereof,
or by its 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 member of a national securities exchange. Upon any such
registration of transfer, a new Global Warrant Certificate shall be
issued to the transferee and the surrendered Global Warrant
Certificate shall be canceled by the Warrant Agent.
The Global Warrant Certificate may be transferred as
provided above at the option of the holder thereof, when surrendered
to the Warrant Agent's Office, or at the office of any successor
Warrant Agent (as provided in Section 5.03), for another Global
Warrant Certificate of like tenor and representing a like number of
unexercised Warrants.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. DURATION OF WARRANTS; MINIMUM EXERCISE AMOUNTS;
NOTICE OF EXERCISE. (a) Subject to the limitations set forth herein and
in Section 2.03, each Warrant may be irrevocably exercised, in whole but
not in part, at or prior to 3:00 p.m., New York City time, on any New
York Business Day (as defined herein) from its date of issuance until
3:00 p.m., New York City time, on the New York Business Day
immediately preceding the earlier of (i) ___________, 1997 (the
"Expiration Date"), or (ii) the Delisting Date (as defined herein).
Except in the case of automatic exercise, each Warrant shall be
irrevocably exercised either (i) in the case of Warrants represented
by Warrant Certificates ("Certificated Warrants") including Certi-
ficated Warrants held through CEDEL (as defined herein) or
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Euroclear (as defined herein), by surrender to the Warrant Agent (at
its address as set forth in the Notice of Exercise (as defined below)
or at such other address as the Warrant Agent may specify from time to
time) of the Warrant Certificate representing such Warrant, with the
Notice of Exercise duly completed and executed by the Registered
Holder of such Warrant (or in the case of Certificated Warrants held
through the facilities of CEDEL or Euroclear, by an entity entitled to
execute, clear and settle transactions through CEDEL or Euroclear (a
"CEDEL or Euroclear Participant"), as the case may be) or (ii) in the
case of Warrants represented by the Global Warrant Certificate ("Book-
Entry Warrants") by causing (x) such Warrant to be transferred free to
the Warrant Agent on the records of the Depository in accordance with
the Depository's Deposit/Withdrawal at Custodian procedures, as
provided in the Letter of Representations, dated ____ __, 1994 (the
"Representations Letter"), among the Company, the Warrant Agent and
the Depository and (y) a duly completed and executed Notice of
Exercise to be received by the Warrant Agent from a Participant, in
the case of Book-Entry Warrants held through the Depository, or a
CEDEL or Euroclear Participant, in the case of such Warrants held
through CEDEL or Euroclear, acting, directly or indirectly, on behalf
of the Warrantholder; provided, however, that Notices of Exercise are
subject to rejection by the Warrant Agent as provided herein.
(b) No fewer than 500 Warrants in either certificated or
book-entry form may be exercised by or on behalf of any one
Warrantholder at any one time, except that no such minimum exercise
amount shall apply in the case of automatic exercise on the Expiration
Date or the Delisting Date, or in the case of cancellation of the
Warrants as a result of an Extraordinary Event (as defined herein).
Each Notice of Exercise shall be unconditional, subject to the
provisions of Section 2.02(h). Except as provided in Section 2.02(b),
the Warrant Agent shall be entitled, with no duty of inquiry, to rely
conclusively on any Notice of Exercise received by it and on any
representation of the exercising Warrantholder contained therein.
(c) "Notice of Exercise" means an irrevocable notice of
exercise to the Warrant Agent at its address, which notice (A) for
Certificated Warrants, shall be on the reverse of the Warrant
Certificate or such other form as the Company and the Warrant Agent
may approve, and (B) for Book-Entry Warrants, shall be substantially
in the form set forth in Exhibit A-2 hereto or such other form as the
Company and the Warrant Agent may approve and may be given by
facsimile transmission. For purposes of this Agreement, "New York
Business Day" means any day other than a Saturday or a Sunday in New
York City or a day on which either the American Stock Exchange (the
"AMEX") or the New York Stock Exchange is not open for securities
trading or commercial banks
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in New York City are required or authorized by law or executive order
to remain closed.
SECTION 2.02. EXERCISE AND DELIVERY OF WARRANTS.
(a) Except if the Company has determined that an Extraordinary Event
or an Exercise Limitation Event has occurred and is continuing, the
valuation date (the "Valuation Date") for a Warrant shall be the first
Index Calculation Date (as defined herein) following the applicable
Exercise Date (as defined herein).
The "Exercise Date" for a Warrant will be the New York
Business Day on which the Warrant Agent has received (A) in the case
of Warrants other than those held through the facilities of Cedel S.A.
("CEDEL") or the Euroclear System ("Euroclear"), either (i) for
Certificated Warrants, the Warrant Certificate representing such
Warrant, with the Notice of Exercise or (ii) for Book-Entry Warrants,
the Warrant with the Notice of Exercise duly completed and executed,
in either case, at or prior to 3:00 p.m., New York City time; and if
the Warrant Agent shall receive any such Warrant Certificate or
Warrant or Notice of Exercise after 3:00 p.m., New York City time, on
such date, then such Warrant Certificate or Warrant shall be deemed to
have been received at or prior to 3:00 p.m., New York City time, on
the next succeeding New York Business Day (which shall be considered
the Exercise Date), and in such event the Valuation Date shall be the
next Index Calculation Date following the New York Business Day on
which the Warrant Agent is deemed to have received such Warrant
Certificate or Warrant together with the Notice of Exercise or (B) in
the case of Warrants held through the facilities of CEDEL or
Euroclear, the Notice of Exercise (by facsimile transmission) at or
prior to 3:00 p.m., New York City time; provided that the Warrant or
Warrant Certificate is received by the Warrant Agent by 3:00 p.m., New
York City time, on the applicable Valuation Date; and if the Warrant
Agent shall receive such Notice of Exercise after 3:00 p.m., New York
City time, on any New York Business Day, then the Notice of Exercise
shall be deemed to have been received at or prior to 3:00 p.m., New
York City time, on the next succeeding New York Business Day (which
shall be considered the Exercise Date), and in such event the
Valuation Date shall be the next Index Calculation Date following the
New York Business Day on which the Warrant Agent is deemed to have
received such Notice of Exercise; provided, that if the Warrant Agent
receives the Warrant or Warrant Certificate after 3:00 p.m., New York
City time, on the Valuation Date, then the Exercise Date for such
Warrant shall be the day on which such Warrant is received or, if such
day is not a New York Business Day, the next succeeding New York
Business Day, and the Valuation Date for such Warrant shall be the
first Index Calculation Date following such Exercise Date; provided,
further, however, that in the case of exercises by Euroclear
Participants, Euroclear must by facsimile to the Warrant Agent by 9:00
a.m., New York City
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time, on the Valuation Date confirm (a "Euroclear Confirmation") that
the Warrants will be received by the Warrant Agent by 3:00 p.m., New
York City time, on such date. If such Euroclear Confirmation is
received after 9:00 a.m., New York City time, on the Valuation Date,
the Company will be entitled to direct the Warrant Agent to reject the
related Notice of Exercise or waive the requirement for timely
delivery of such Euroclear Confirmation.
Any Warrant Certificate or Warrant received after 3:00 p.m.,
New York City time, on the New York Business Day immediately preceding
the earlier of (i) the Expiration Date or (ii) the effective date on
which the Warrants are delisted from, or permanently suspended from
trading (within the meaning of the Securities Exchange Act of 1934 and
the rules and regulations of the Securities and Exchange Commission
thereunder) on, the AMEX and not accepted at the same time for listing
on another United States national securities exchange (such effective
date being the "Delisting Date") (or, in the case of Warrants held
through the facilities of CEDEL or Euroclear, after 3:00 p.m., New
York City time, on the first Index Calculation Date following such New
York Business Day), shall be deemed not to have been delivered and the
related Notice of Exercise shall be void and of no effect; provided,
however, that if the Company first receives notice of the delisting or
suspension of the Warrants on the same day on which such Warrants are
delisted or suspended, such day will nevertheless be deemed the
Delisting Date for purposes of this Agreement. For purposes of this
Agreement, "Index Calculation Date" means any Tokyo Business Day (as
defined herein) on which the Index (as herein defined) is calculated
and published.
(b) The Warrant Agent shall, in the case of Warrants other
than Warrants held through CEDEL or Euroclear, following receipt of
proper delivery of a Warrant in accordance with Section 2.02(a),
accompanied by a completed Notice of Exercise, and, in the case of
Warrants held through CEDEL or Euroclear, following receipt of proper
delivery of a completed Notice of Exercise in accordance with Section
2.02(a):
(i) promptly (1) for Certificated Warrants not held through
CEDEL or Euroclear, determine whether such Notice of Exercise has
been duly completed and is in proper form duly executed by the
Registered Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, (2) for
Certificated Warrants held through CEDEL or Euroclear, determine
whether such Notice of Exercise has been duly completed and is in
proper form duly executed by the CEDEL or Euroclear Participant
tendering such Warrant, as applicable, (3) for Book-Entry
Warrants not held through CEDEL or Euroclear, determine whether
such
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Notice of Exercise has been duly completed and is in proper form and
(4) for Book-Entry Warrants held through CEDEL or Euroclear, determine
whether such Notice of Exercise has been duly completed and is in
proper form duly executed by the CEDEL or Euroclear Participant
tendering such Warrant, as applicable; and if the Warrant Agent
determines that the Notice of Exercise has not been duly completed or
is not in proper form or, in the case of Certificated Warrants, has
not been so executed, the Warrant Agent promptly (X) shall reject such
Notice of Exercise and shall send to the entity that executed such
Notice of Exercise a notice of rejection substantially in the form set
forth in Exhibit B or Exhibit B-1 hereto, as the case may be, and, in
the case of Certificated Warrants, shall return to the Registered
Holder that submitted such Notice of Exercise, by first class mail,
the Warrant Certificates evidencing such Warrants (to the extent
received in the case of Warrants held through CEDEL or Euroclear), or,
in the case of Book-Entry Warrants, shall redeliver such Warrants (to
the extent received in the case of Warrants held through CEDEL or
Euroclear) free through the facilities of the Depository to the
account from which they were transferred to the Warrant Agent and (Y)
in either case, shall not take the actions required by clauses (ii) -
(viii) below with respect to such Notice of Exercise or the related
Warrants; provided, however, that the Warrant Agent shall deliver a
copy of the Notice of Exercise relating to such Warrants to the
Company as required by Section 2.02(b)(viii) below and the Company may
waive any defect in the form of such Notice of Exercise;
(ii) notify the Company and the Determination Agent (and
such other parties (not to exceed two) as the Company shall
designate in writing) by 4:00 p.m., New York City time, on the
New York Business Day that such Notice of Exercise has been
received (or shall be deemed to have been received) of (A) the
total number of Warrants covered by such Notice of Exercise, (B)
the number of such Warrants subject to the Limit Option (as
defined herein) ("Contingently Tendered Warrants"), and (C) the
number of such Warrants not subject to the Limit Option;
(iii) with respect to Warrants held through Euroclear,
determine whether the Warrant Agent has received by 9:00 a.m.,
New York City time, on the Valuation Date relating to such
Warrants, Euroclear Confirmations with respect to such Warrants,
and if the Warrant Agent has not received any such Euroclear
Confirmation by such time, notify the Company (and such other
parties (not to exceed two) as the Company shall designate in
writing) by 10:00 a.m., New York City time, on such Valuation
Date (or if the Valuation Date is not a New York Business Day on
the next succeeding New York Business
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Day) of the number of such Warrants in respect of which the
Warrant Agent has not received such Euroclear Confirmations and
(except to the extent the Company has notified the Warrant Agent
that it has waived the timing requirement of timely delivery of
such Euroclear Confirmation) send to the Euroclear Participant
that executed such Notice of Exercise for which no related
Euroclear Confirmation was received (at the address specified in
such notice) a notice of rejection substantially in the form set
forth in Exhibit B or Exhibit B-1 hereto, as the case may be;
(iv) if any of the Warrants covered by such Notice of
Exercise constitute Contingently Tendered Warrants, the Warrant
Agent shall, by 5:00 p.m., New York City time, on the Valuation
Date (or, if such Valuation Date is not a New York Business Day,
on the next succeeding New York Business Day) (A) determine the
Reference Index (as defined herein) for such Warrants and the
Spot Index (as defined herein) for the Index Calculation Date
that, but for the provisions of Section 2.02(h), would be the
Valuation Date for such Warrants; (B) determine in accordance
with Section 2.02(h) whether such Contingently Tendered Warrants
will be subject to exercise after giving effect to the Limit
Option and, if such Warrants will not be subject to exercise,
send to the Registered Holder (or the entity that executed the
Notice of Exercise, in the case of Certificated Warrants held
through CEDEL or Euroclear), in the case of Certificated
Warrants, or to the Participant, in the case of Book-Entry
Warrants, that submitted such Notice of Exercise a notice of
rejection substantially in the form set forth in Exhibit C-1 or
Exhibit C-2 hereto, as appropriate, with respect to such Warrants
and return to the Registered Holder (or the entity that executed
the Notice of Exercise, in the case of Certificated Warrants held
through CEDEL or Euroclear) that submitted such Notice of
Exercise, by first class mail, the Warrant Certificates (to the
extent received in the case of Warrants held through CEDEL or
Euroclear) evidencing such Warrants, or, in the case of Book-
Entry Warrants (to the extent received in the case of Warrants
held through CEDEL or Euroclear), redeliver the Warrants free
through the facilities of the Depository to the account of such
Participant; and (C) notify the Company and the Determination
Agent as to whether such Contingently Exercised Warrants will be
subject to exercise;
(v) by 5:00 p.m., New York City time, on the Valuation Date
(or, if such Valuation Date is not a New York Business Day, on
the next succeeding New York Business Day) (A) determine the sum
of (1) the number of such Warrants not subject to the Limit
Option (i.e., the number of Warrants determined pursuant to
clause (ii)(C) above) plus (2) the
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number of such Warrants that are Contingently Exercised Warrants
that will be subject to exercise notwithstanding the Limit Option
(i.e., the number of Warrants so identified pursuant to clause
(iv)(B) above) (all of such Warrants, the "Exercised Warrants")
and (B) notify the Company and the Determination Agent of the
total number of Exercised Warrants so determined (if such number
is zero, the Warrant Agent shall not take the actions required by
clauses (vi) and (vii) with respect to such Notice of Exercise or
the related Warrants);
(vi) calculate the Cash Settlement Value of the Exercised
Warrants (excluding any Warrants held through CEDEL or Euroclear
as to which timely delivery of the related Warrant has not been
made or as to which a notice of rejection has been or is to be
sent pursuant to clause (iii) above) as of their Valuation Date
in the manner set forth in Section 2.02(d) by no later than 5:00
p.m., New York City time, on the Valuation Date (or, if such
Valuation Date is not a New York Business Day on the next
succeeding New York Business Day) (unless the Cash Settlement
Value shall be calculated by the Determination Agent);
(vii) notify the Company (and such other parties (not to
exceed two) as the Company shall designate in writing) no later
than 5:00 p.m., New York City time, on the Valuation Date (or, if
such Valuation Date is not a New York Business Day, on the New
York Business Day next succeeding the Valuation Date) of the Cash
Settlement Value payable in respect of the exercise of such
Exercised Warrants, and send notices of confirmation
substantially in the form included in Exhibit B or Exhibit B-1
hereto, as the case may be, to the appropriate Registered Holder
(or the entity that executed the related Notice of Exercise in
the case of Certificated Warrants held through CEDEL or
Euroclear) or Participant specifying therein the reference number
assigned by the Warrant Agent to each accepted Notice of
Exercise; and
(viii) promptly deliver a copy of each Notice of Exercise to
the Company and advise the Company of such other matters relating
to the Exercised 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 Section 2.03 shall be by
telephone (promptly confirmed in writing) or telecopy.
Except in the case of Warrants subject to automatic exercise
and Warrants that upon exercise entitle the holder thereof to receive
an Alternative Settlement Amount in lieu of the Cash Settlement Value,
if on any Valuation Date the Cash Settlement Value for any Warrants
then exercised would be zero,
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then, in such case, the exercise of such Warrants shall be ignored and
either (i) for Certificated Warrants, the Warrant Certificate
evidencing such Warrants (to the extent received in the case of
Warrants held through CEDEL or Euroclear) shall be promptly returned
by the Warrant Agent to the Registered Holder (or the entity that
executed the related Notice of Exercise in the case of Certificated
Warrants held through CEDEL or Euroclear) by first class mail or (ii)
for Book-Entry Warrants, the Warrants will be transferred by the
Warrant Agent back to the Participant that submitted them free on the
records of the Depository (to the extent received in the case of
Warrants held through CEDEL or Euroclear) and, in either case, such
Warrantholder shall be permitted to exercise such Warrants prior to
the Expiration Date or the Delisting Date, as the case may be.
(c) Provided that the Company has made 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 fourth New
York Business Day following a Valuation Date (or, if the Valuation
Date is not a New York Business Day, on the fourth New York Business
Day following the New York Business Day next succeeding the Valuation
Date) (the "Settlement Date"), the Warrant Agent will be responsible
for making its payment available either (i) for Certificated Warrants,
to each appropriate Registered Holder in the form of a cashier's check
or an official bank check, or (in the case of payments of at least
$100,000) by wire transfer to a U.S. dollar account maintained by such
Registered Holder in the United States (at such Registered Holder's
election as specified in the applicable Notice of Exercise), after
3:00 p.m., New York City time, but prior to the close of business, on
the first New York Business Day immediately succeeding such Settlement
Date or (ii) for Book-Entry Warrants, to each appropriate Participant
in the form of a cashier's check or an official bank check, or (in the
case of payments of at least $100,000) by wire transfer to a U.S.
Dollar account maintained by such Participant in the United States (at
the Participant's election as specified in the Notice of Exercise),
after 3:00 p.m., New York City time, but prior to the close of
business, on the first New York Business Day immediately succeeding
such Settlement Date. For either clause (i) or (ii) above, such
payment shall be in the amount of the aggregate Cash Settlement Value
in respect of the Warrant Certificates or Warrants that were delivered
to the Warrant Agent (together with the related Notice of Exercise) as
provided in Sections 2.01 and 2.02(a) and (b).
(d) The "Cash Settlement Value" of an Exercised Warrant
shall be an amount in U.S. dollars equal to the quotient (rounded down
to the nearest cent) of (A) the amount, if any, by which the Strike
Index (as defined herein) exceeds the closing level of the Index (as
defined herein), as calculated and
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published, on the applicable Valuation Date for such Warrant (the
"Spot Index"), divided by (B) the Warrant Divisor (as defined herein);
provided, however, that if such amount is less than zero, then the
Cash Settlement Value shall be zero.
The "Index" shall initially be the AMEX Japan Index
published by the AMEX (the "Japan Index"). Under the circumstances
set forth in Section 2.07, a New Japan Index (as defined herein) will
be substituted for the Japan Index, in which event such New Japan
Index shall (i) be used in calculating any Cash Settlement Value or
Alternative Settlement Amount (as defined herein) for the Warrants for
any Valuation Date on or after the Substitution Date (as defined
herein) and (ii) be the "Index" for purpose of this Agreement and the
Warrant Certificates.
If the Japan Index is not published by the AMEX (or, if a
New Japan Index has been substituted, the New Japan Index is not
published by the AMEX or another United States national securities
exchange), but is published by another person not affiliated with the
Company and acceptable to the Company (the "Third Party"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Japan Index (or, if a New Japan Index has been
substituted, the New Japan Index) as published by such Third Party and
(ii) the Japan Index (or, if a New Japan Index has been substituted,
the New Japan Index) published by such Third Party shall be the
"Index" for purposes of this Agreement and the Warrant Certificates.
If the AMEX or any Third Party discontinues publication of the Japan
Index (or, if a New Japan Index has been substituted, the New Japan
Index) and publishes a successor or substitute index that the Company
determines, in its sole discretion, to be comparable to the Japan
Index (or, if a New Japan Index has been substituted, the New Japan
Index) (any such index being a "Successor Index"), then
(i) any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Successor Index on such date and (ii) such Successor
Index shall be the "Index" for purposes of this Agreement and the
Warrant Certificates.
The "Strike Index" shall initially be _____ and the "Warrant
Divisor" shall initially be ____. If a New Japan Index is substituted
for the Japan Index pursuant to Section 2.07, the Strike Index and the
Warrant Divisor shall each be adjusted as provided in Section 2.07.
For purposes of this Agreement, "Tokyo Business Day" means
any day other than (i) a Saturday or a Sunday, (ii) a day on which
banks are not open for business in Tokyo, or (iii) a day on which the
Tokyo Stock Exchange (the "TSE"), the Singapore
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International Monetary Exchange Ltd. (the "SIMEX") or the Osaka
Securities Exchange (the "OSE") is not open for business.
(e) In the event a Global Warrant Certificate is issued,
the Warrant Agent shall cause its records, which may be kept
electronically, to be marked to reflect the reduction in the number of
Warrants represented by the Global Warrant Certificate by the number
of Warrants that were delivered to the Warrant Agent and for which
payment has been made as provided in Section 2.02(c) promptly after
such delivery and payment. Absent manifest error, the Warrant Agent's
records shall be conclusive evidence of such matters.
(f) The Company hereby appoints Bear, Stearns & Co. Inc.,
and Bear, Stearns & Co. Inc. accepts such appointment, to be the
Company's Determination Agent to make such calculations as may be
required upon the occurrence of any of the circumstances described in
Section 2.02(g) or 2.03, including, without limitation, calculation of
the Cash Settlement Value or the Alternative Settlement Amount, as
applicable, of a Warrant. The Determination Agent shall act as an
independent expert and not as an agent of the Company, 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, the
Warrantholders and any Participant. Any such calculations will be
made available to a Warrantholder for inspection at the Warrant
Agent's Office.
The Company agrees, for the benefit of the Warrantholders
from time to time of the Warrants, that there shall at all times be a
Determination Agent hereunder until (i) all the Warrants are no longer
outstanding or (ii) until moneys for the payment of all outstanding
Warrants, if any, shall have been paid to the Warrant Agent and shall
have been returned to the Company as provided in Section 2.06,
whichever occurs earlier. Resignation, removal and appointment of the
Determination Agent shall be in accordance with the procedures set
forth for the resignation, removal and appointment of the Warrant
Agent, as provided in Section 5.03, except that a successor
Determination Agent need not be a banking institution with offices in
the Borough of Manhattan, the City of New York, and may only be
appointed if such successor has been nominated by the Company and
approved by the predecessor Determination Agent.
The Company agrees promptly to pay the Determination Agent
the compensation to be agreed upon with the Company for all services
rendered by the Determination Agent hereunder. The Company also
agrees to indemnify the Determination Agent for, and to hold it
harmless against, any loss, liability, cost or expense (including
reasonable attorneys' fees and expenses) incurred by the Determination
Agent by reason of its being made a party to a
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suit or claim arising out of this Agreement; provided, however, that
such indemnity shall in no event apply to the extent that any such
loss, liability, cost or expense is a result of the negligence, bad
faith or breach of this Agreement on its part in connection with the
services rendered by it hereunder. The indemnity obligation of the
Company shall continue notwithstanding the termination of this
Agreement or the resignation or removal of the Determination Agent.
(g) In the event that the AMEX or the Third Party makes a
material change in the formula for, or the method of, calculating the
Index, the Determination Agent shall make such calculations as may be
required to determine the applicable Cash Settlement Value and/or
Alternative Settlement Amount using the formula and method of
calculating the Index as was in effect prior to such change or
modification.
If the AMEX and/or any Third Party discontinues publication
of the Index and, after giving effect thereto, there is no published
index used for purposes of determining the applicable Cash Settlement
Value and/or Alternative Settlement Amount, the Company will cause the
Determination Agent to determine the applicable Cash Settlement Value
and/or Alternative Settlement Amount based on the formula and method
used in calculating the Index as in effect on the date the Index was
last published.
If calculation or publication of the Index is modified,
discontinued or suspended, as provided in this Section 2.02(g) or in
Section 2.02(d), then the Determination Agent shall promptly notify
the Warrant Agent, and the Warrant Agent shall in turn promptly notify
the Warrantholders in accordance with Section 6.04 hereof, of such
modification, discontinuance or suspension and of any modification or
adjustment to be made with respect to calculation of the Cash
Settlement Value or Alternative Settlement Amount, as applicable.
The Determination Agent will have no responsibility for good
faith errors or omissions in calculating or disseminating information
regarding the Index, any Successor Index, adjustments or calculations
by the Determination Agent (as provided above) in order to arrive at a
calculation of a stock index comparable to the Index or any Successor
Index, or the Cash Settlement Value or the Alternative Settlement
Amount, as applicable.
(h) Except in the case of an automatic exercise (as
provided in Section 2.03 below) and except upon the occurrence of an
Extraordinary Event or Exercise Limitation Event as a result of which
an Alternative Settlement Amount is payable (as provided in Section
2.03 below) in connection with any exercise of Warrants, the related
Notice of Exercise may specify that such
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exercise (including any exercise following a postponed Valuation Date
pursuant to Section 2.03(b), if the Cash Settlement Value is to be
paid with respect to such Warrants), be subject to the condition that
the Spot Index that would otherwise be used to determine the Cash
Settlement Value of such Warrants not be 5% or more higher than the
Reference Index for such Warrants. "Reference Index", with respect to
any Contingently Tendered Warrants, means the Spot Index on the New
York Business Day that, but for the provisions of Section 2.02(h),
would be the Exercise Date in respect of such Contingently Tendered
Warrants (or, if such New York Business Day is not an Index
Calculation Date, on the Index Calculation Date immediately preceding
such New York Business Day). The option of a Warrantholder to
condition an exercise of Warrants as provided in this Section 2.02(h)
is herein referred to as the "Limit Option". If a Warrantholder
elects the Limit Option, in connection with any exercise of Warrants,
the following provisions shall apply:
(i) To be valid, such election must be specified in the
related Notice of Exercise. Each of the Warrant Agent and the
Company shall be entitled to rely conclusively on such Notice of
Exercise, as received by the Warrant Agent, in determining
whether such election has been validly made. In connection with
any exercise of Warrants, a Warrantholder may elect to subject
only a portion of such Warrants to the Limit Option; provided
that the number of such Warrants subject to the Limit Option and
the number of such Warrants not subject to the Limit Option shall
in each case not be less than 500. Registered Holders and
Participants shall be required to certify that the number of
Warrants exercised on behalf of any Warrantholder pursuant to the
related Notice of Exercise that are subject to the Limit Option
is an amount that is not less than 500.
(ii) The Reference Index shall be determined by the Warrant
Agent which determination shall be conclusive and binding for all
purposes relating to such exercise.
(iii) In the event that the Spot Index for the day that, but
for the provisions of Section 2.02(h), would be the Valuation
Date for such Warrants is 5% or more higher than the Reference
Index for such Warrants, such Warrants (A) shall not be subject
to exercise and shall be treated for all purposes of this
Agreement and the Warrant Certificates and Global Warrant
Certificate as if the related Notice of Exercise had never been
received by the Warrant Agent, and (B) shall not constitute
"Exercised Warrants" for purposes of Section 2.02(b). If such
Spot Index is not 5% or more higher than such Reference Index,
such Warrants shall be subject to exercise as provided in this
Section 2.02 and shall be deemed to be "Exercised
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Warrants" for such purposes. The Warrant Agent's determination
shall be conclusive and binding for all purposes relating to such
Warrants.
(iv) Except as provided in Section 2.03(b), the Limit Option
(based on the Reference Index as determined for the New York
Business Day that, but for the provisions of Section 2.02(h),
would be the Exercise Date in respect of such Contingently
Tendered Warrants, or, if applicable, the Index Calculation Date
immediately preceding such New York Business Day) shall continue
to be applicable to any Exercised Warrant for which the Valuation
Date has been postponed as a result of the occurrence of an
Extraordinary Event or an Exercise Limitation Event until the
Warrants are canceled as provided in Section 2.03(b) or until the
Expiration Date or the Delisting Date.
SECTION 2.03. AUTOMATIC EXERCISE OF WARRANTS; EXERCISE UPON
AN EXTRAORDINARY EVENT OR EXERCISE LIMITATION EVENT. (a) All
Warrants for which the Warrant Agent has not received a Notice of
Exercise in proper form by 3:00 p.m., New York City time, on the New
York Business Day immediately preceding the earlier of (i) the
Expiration Date or (ii) the Delisting Date, as the case may be, or for
which the Warrant Agent has received a Notice of Exercise in proper
form but with respect to which timely delivery of the relevant
Warrants has not been made, and which have not been canceled prior to
such time, will be deemed automatically exercised on such New York
Business Day without any requirement of a Notice of Exercise, or a
delivery of Warrants, to the Warrant Agent. The Exercise Date for
such Warrants shall be such New York Business Day and the Valuation
Date for such Warrants shall be the first Index Calculation Date
following the Exercise Date for such Warrants.
The Warrant Agent shall by 5:00 p.m., New York City time, on
the New York Business Day immediately preceding the Expiration Date or
the Delisting Date, as the case may be, notify the Company (and such
other parties (not to exceed two) as the Company shall designate in
writing) of the number of Warrants to be automatically exercised on
such day. On the Valuation Date for such Warrants (or, if such
Valuation Date is not a New York Business Day, on the next succeeding
New York Business Day), the Warrant Agent shall (i) determine the Cash
Settlement Value (in the manner provided in Section 2.02(d)) of the
Warrants to be automatically exercised; (ii) by 5:00 p.m., New York
City time, on the Valuation Date, notify the Company (and such other
parties (not to exceed two) as the Company shall designate in writing)
of the Cash Settlement Value payable in respect of such exercised
Warrants; and (iii) advise the Company of such other matters relating
to the exercised Warrants as the Company shall reasonably request.
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If the Company determines that an Extraordinary Event or an
Exercise Limitation Event (as defined herein) has occurred and is
continuing on the Expiration Date or the Delisting Date, the Company
shall so notify the Warrant Agent and the Determination Agent, and the
Cash Settlement Value with respect to the exercised Warrants shall be
equal to, be calculated in the same manner, and be payable at the same
time, as an "Alternative Settlement Amount", in accordance with
Section 2.03(b) herein (treating the Expiration Date or the Delisting
Date, as the case may be, as the date on which the Warrants were
canceled for the purposes of Section 2.03(b)).
Except if an Extraordinary Event or an Exercise Limitation
Event has occurred and is continuing on the Expiration Date or the
Delisting Date, as the case may be, with respect to all Warrants
subject to automatic exercise (other than Book-Entry Warrants and
Warrants subject to postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event as described in
Section 2.03(b)), the Company shall make available to the Warrant
Agent, not later than 3:00 p.m., New York City time, on the fourth New
York Business Day following the Valuation Date for automatically
exercised Warrants (or if such Valuation Date is not a New York
Business Day, on the fourth New York Business Day following the New
York Business Day next succeeding the Valuation Date) (in any such
case, the "Automatic Settlement Date"), funds in an amount equal to,
and for the payment of, the aggregate Cash Settlement Value of such
Warrants. Subject to such funds having been made available as
provided in the preceding sentence, the Warrant Agent will be
responsible for making its payment available to the appropriate
Registered Holder in the form of a cashier's check or an official bank
check, or (in the case of payments of at least $100,000) by wire
transfer to a U.S. dollar account maintained by such Registered Holder
in the United States (at such Registered Holder's election), after
3:00 p.m., New York City time, but prior to the close of business, on
the Automatic Settlement Date, against receipt by the Warrant Agent at
the Warrant Agent's Office from such Registered Holder of its Warrant
Certificates. Such payment shall be in the amount of the aggregate
Cash Settlement Value in respect of the Warrants, evidenced by such
Warrant Certificates, that were exercised automatically on the
Expiration Date or the Delisting Date, as the case may be. Warrant
Certificates delivered to the Warrant Agent shall thereafter be
promptly canceled by the Warrant Agent.
Except if an Extraordinary Event or an Exercise Limitation
Event has occurred and is continuing on the Expiration Date or the
Delisting Date, as the case may be, in the case of Book-Entry Warrants
subject to automatic exercise (other than Warrants subject to
postponed exercise following the occurrence of an Extraordinary Event
or an Exercise Limitation Event as described
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in Section 2.03(b)), the Company shall make available to the Warrant
Agent, not later than 3:00 p.m., New York City time, on the Automatic
Settlement Date, funds in an amount equal to, and for the payment of,
the aggregate Cash Settlement Value of such Warrants. Subject to such
funds having been made available as provided in the preceding
sentence, the Warrant Agent will be responsible for making funds
available to the Depository, against receipt of the Global Warrant
Certificate, after 3:00 p.m., New York City time, but prior to the
close of business, on the Automatic Settlement Date, such funds to be
in an amount equal to the aggregate Cash Settlement Value of the
Warrants subject to such automatic exercise.
The Company will advise the Warrant Agent as soon as
practicable of the date of any expected delisting or permanent
suspension of trading of the Warrants and will immediately inform the
Warrant Agent after the Company has received notice that such
delisting or suspension has occurred, but in no event will notice of
such delisting or suspension be given to the Warrant Agent later than
9:30 a.m., New York City time, on the New York Business Day following
the date that such delisting or suspension occurs. The Company will
use its best efforts to notify the Warrantholders, or cause the
Warrantholders to be notified, as promptly as practicable of any
expected delisting or suspension of trading of the Warrants.
(b) Upon the occurrence of an Extraordinary Event or an
Exercise Limitation Event, the Company shall use its best efforts to
notify the Warrant Agent and the Determination Agent promptly that an
Extraordinary Event or Exercise Limitation Event, as the case may be,
has occurred and shall promptly notify the Warrantholders, through
publication in a United States newspaper with a national circulation,
or through other means deemed appropriate by the Company
("Publication"), that an Extraordinary Event or an Exercise Limitation
Event has occurred.
Anything in this Agreement to the contrary notwithstanding,
if the Company determines that an Extraordinary Event or Exercise
Limitation Event has occurred and is continuing on the Tokyo Business
Day with respect to which the Spot Index on a Valuation Date is to be
determined (the "Applicable Tokyo Business Day"), then the Cash
Settlement Value of any Warrants shall be calculated on the basis that
the Valuation Date shall be the next Index Calculation Date following
such Applicable Tokyo Business Day on which there is no Extraordinary
Event or Exercise Limitation Event; provided, however, that, if the
Cash Settlement Value of such Warrants is not calculated on or prior
to the Expiration Date or the Delisting Date, then the Warrantholders
shall receive the Alternative Settlement Amount in lieu of the Cash
Settlement Value which shall be calculated as if such
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Warrants had been canceled on the Expiration Date or the Delisting
Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing, and if it is expected by the Company to
continue, the Company may immediately cancel the Warrants by notifying
the Warrant Agent of such cancellation (the date such notice is given
being the "Cancellation Date"), and each Warrantholder's rights with
respect to the Warrants and under this Agreement shall thereupon
cease; provided, however, that each Warrant shall be exercised (even
if such Warrant would not otherwise be exercisable on such date
because of the Limit Option) on the basis that the Valuation Date for
such Warrant shall be the Cancellation Date and each Warrantholder
shall have the right to receive an Alternative Settlement Amount with
respect to its Warrants. The Company shall use its best efforts to
promptly notify the Warrantholders through Publication of such
cancellation.
With respect to all Warrants as to which the Valuation Date
has been postponed or which have been canceled as described above, the
Company shall make available to the Warrant Agent not later than 3:00
p.m., New York City time, on the third New York Business Day following
the date on which the Cash Settlement Value or Alternative Settlement
Amount, as the case may be, has been calculated (the "Alternative
Settlement Date"), funds in an amount equal to, and for the payment
of, the aggregate Cash Settlement Value or Alternative Settlement
Amount, as applicable, of such Warrants. Subject to such funds having
been made available as provided in the preceding sentence, the Warrant
Agent will be responsible for making a payment (i) in the case of
Certificated Warrants, to each Registered Holder that submitted a
Warrant Certificate for exercise or (ii) in the case of Book-Entry
Warrants, to the Depository, after 3:00 p.m., New York City time, but
prior to the close of business on, the Alternative Settlement Date, in
an amount equal to the aggregate Cash Settlement Value or Alternative
Settlement Amount of such exercised Warrants.
The "Alternative Settlement Amount" shall be an amount,
determined by the Determination Agent, which is equal to the amount
"X" calculated using the formula set forth below:
x = I + [(T/2) x (A/B)]
where
I = the Cash Settlement Value of the Warrants determined as
described under Section 2.02(d), but calculated with a Spot
Index determined by the Determination Agent which, subject
to approval by the Company (such approval not
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to be unreasonably withheld), in the reasonable opinion of
the Determination Agent, fairly reflects the value of the
stocks which comprise the Index on the Cancellation Date;
T = U.S.$____, the initial offering price per Warrant;
A = the total number of days from but excluding the Cancellation
Date for such Warrants to and including the Expiration Date;
and
B = the total number of days from but excluding the date the
Warrants were initially sold to and including the Expiration
Date.
For purposes of determining "I" in the above formula, in the
event that the Determination Agent and the Company are required, but
have not, after good faith consultation with each other and within
five days following the first day on which such Alternative Settlement
Amount may be calculated in accordance with the above formula, agreed
upon a Spot Index which fairly reflects the value of the stocks which
comprise the Index on the Cancellation Date, then the Determination
Agent shall promptly nominate a third party subject to approval by the
Company (such approval not to be unreasonably withheld), to determine
such figure and calculate the Alternative Settlement Amount in
accordance with the above formula. Such party shall act as an
independent expert and not as an agent of the Company or the
Determination Agent, and its calculation and determination of the
Alternative Settlement Amount shall, absent manifest error, be final
and binding on the Company, the Warrant Agent, the Determination Agent
and the Warrantholders. Any such calculations will be made available
to a Warrantholder for inspection at the Warrant Agent's Office.
Neither the Company, the Determination Agent nor such third party
shall have any responsibility for good faith errors or omissions in
calculating the Alternative Settlement Amount.
(c) For purposes of this Agreement, an "Extraordinary
Event" shall mean any one of the events, circumstances or causes
listed below:
(i) a suspension or absence of trading on the TSE of all
the underlying stocks which then comprise the Index; or
(ii) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any
U.S. or non-U.S. governmental authority or court that would make
it unlawful for the Company to perform any of its obligations
under the Warrant Agreement or the Warrants or that has or, in
the judgment of the Company, is likely to
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have, a material adverse effect on the ability of the Company to
perform its obligations under the Warrants or to modify the hedge
of its position with respect to the Index; or
(iii) any outbreak or escalation of hostilities or other
national or international calamity or crisis (including, without
limitation, natural calamities which, in the opinion of the
Company, may materially and adversely affect the economy of Japan
or the trading of securities generally on the TSE) that has, or,
in the judgment of the Company, is likely to have, a material
adverse effect on the ability of the Company to perform its
obligations under the Warrants or to modify the hedge of its
position with respect to the Index.
For the purposes of determining whether an Extraordinary
Event has occurred: (1) a limitation on the hours or number of days of
trading will not constitute an Extraordinary Event if it results from
an announced change in the regular business hours of the TSE, and (2)
an "absence of trading" on the TSE will not include any time when the
TSE itself is closed for trading under ordinary circumstances.
(d) For purposes of this Agreement, an "Exercise Limitation
Event" shall mean any one of the events, circumstances or causes
listed below:
(i) a suspension or absence of trading on the TSE of 20% or
more (in number) of the underlying stocks which then comprise the
Index; or
(ii) the suspension or material limitation on the SIMEX, the
OSE or the AMEX or any other major futures, options or securities
market of trading in futures or options contracts related to the
Nikkei 225 Index (or, in the event of a substitution of the New
Japan Index for the Japan Index, the Nikkei 300 Index) or the
Index.
For purposes of determining whether an Exercise Limitation
Event has occurred: (1) a limitation on the hours or number of days
of trading will not constitute an Exercise Limitation Event if it
results from an announced change in the regular business hours of the
relevant exchange, (2) a decision to permanently discontinue trading
in the relevant futures or options contract will not constitute an
Exercise Limitation Event, (3) a suspension of trading in 20% or more
(in number) of the underlying stocks referred to in clause (i) above
or in a futures or options contract referred to in clause (ii) above,
by reason of (x) a price change violating limits set by the TSE,
SIMEX, OSE or AMEX or other futures or securities market on which
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futures or options contracts related to the Nikkei 225 Index (or, in
the event of a substitution of the New Japan Index for the Japan
Index, the Nikkei 300 Index) or the Index are traded or (y) an
imbalance of orders relating to such underlying stocks or such
contracts will constitute a suspension or material limitation of
trading, (4) an "absence of trading" on the TSE will not include any
time when the TSE is closed for trading under ordinary circumstances
and (5) the occurrence of an Extraordinary Event described in clause
(i) of the definition of Extraordinary Event will not constitute, and
will supersede the occurrence of, an Exercise Limitation Event.
SECTION 2.04. COVENANT OF THE COMPANY. The Company
covenants, for the benefit of the Warrantholders, that it will not
seek the delisting of the Warrants from, or suspension of their
trading on, the AMEX unless the Company has at the same time arranged
for listing on another United States national securities exchange.
SECTION 2.05. RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS.
Except as otherwise provided herein, any money deposited with or paid
to the Warrant Agent for the payment of the Cash Settlement Value or
Alternative Settlement Amount of any Warrants and not applied but
remaining unclaimed for two years after the date upon which such Cash
Settlement Value or Alternative Settlement Amount shall have become
due and payable shall be repaid by the Warrant Agent to the Company
and the holders of such 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 at the expense of the Company notify (i) in
the case of Certificated Warrants, the Registered Holders or (ii) in
the case of Book-Entry Warrants, the Participants concerned, 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.
SECTION 2.06. RETURN OF GLOBAL WARRANT CERTIFICATE. In the
event a Global Warrant Certificate is issued, at such time as all of
the Warrants evidenced by such certificate shall have been exercised
(including pursuant to an automatic exercise) or otherwise canceled
and all payments to the Participants made as provided herein, the
Warrant Agent shall cancel and destroy such Global Warrant Certificate
(unless instructed by the Company to deliver the Global Warrant
Certificate to the Company) and shall provide a certificate with
respect to such destruction to the Company.
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SECTION 2.07. SUBSTITUTION OF NEW JAPAN INDEX. For
purposes of this Agreement, the following terms shall have the
following meanings:
"Nikkei 225 Index" shall mean the Nikkei 225 Index published
by Nihon Keizai Shimbun, Inc.
"Nikkei 225 Futures Contracts" shall mean futures contracts
on the Nikkei 225 Index.
"Nikkei 300 Index" shall mean the Nikkei 300 Index published
by Nihon Keizai Shimbun, Inc.
"Nikkei 300 Futures Contracts" shall mean futures contracts
on the Nikkei 300 Index.
On the thirtieth calendar day (or, if such day is not a New
York Business Day, the next succeeding New York Business Day) (a
"Substitution Date") following a Substitution Event (as defined
herein), the New Japan Index shall be substituted for the Japan Index.
Upon the occurrence of a Substitution Event, the Company shall cause
prompt notice of the occurrence of such Substitution Event and the
Substitution Date to be given to the Warrantholders. The notice shall
also state that on the Substitution Date, for purposes of calculating
any Cash Settlement Value or the Alternative Settlement Amount,
(i) the Spot Japan Index will be determined by reference to the
closing level of the New Japan Index, (ii) an adjusted Strike Japan
Index will be substituted for the original Strike Japan Index and
(iii) an adjusted Warrant Divisor will be substituted for the original
Warrant Divisor. The adjusted Strike Japan shall be calculated as
follows:
initial Strike Japan Index X Current Level of New Japan Index =
--------------------------------
Current Level of Japan Index
adjusted Strike Japan Index
The adjusted Warrant Divisor shall be calculated as follows:
initial Warrant Divisor X Current Level of New Japan Index =
--------------------------------
Current Level of Japan Index
adjusted Warrant Divisor
For purposes of the above calculations, the "Current Level"
of the Japan Index and the New Japan Index will equal their respective
levels at the close of business on the Tokyo Business Day immediately
preceding the Substitution Date.
A "Substitution Event" will occur if and when, as determined
by the Determination Agent (whose opinion shall be conclusive and
binding on the Company and the Warrantholders), the following
conditions are fulfilled:
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(a) Nikkei 300 Futures Contracts shall at the time of the
Substitution Event be publicly traded on the OSE;
(b) The AMEX or another United States national securities
exchange shall publish (on a basis not less regularly than each
day on which it and the TSE are open for trading) an index (the
"New Japan Index") that for a period of 90 calendar days
immediately preceding the date of the Substitution Event shall
have had a correlation (based on daily closing value to closing
value percentage changes) of not less than 90% with the Nikkei
300 Index;
(c) An option or warrant that has payments determined by
reference to the New Japan Index shall at the time of the
Substitution Event have been approved to be listed on a national
securities exchange by the Securities and Exchange Commission;
(d) Either of the following shall have occurred:
(i) the Nikkei 225 Index shall no longer be published
and/or the Nikkei 225 Futures Contracts shall have been
delisted from trading on the OSE; or
(ii) the Nikkei 300 Futures Contracts publicly traded
on the OSE have (A) greater average daily volume and (B)
greater average daily open interest than the Nikkei 225
Futures Contracts that trade on the OSE, each for any three-
month period prior to the date of the Substitution Event,
commencing on a futures expiration date on the OSE and
ending on the following futures expiration date; and
(e) To the extent required, the Company shall have obtained
any license necessary to use the New Japan Index as described
herein. The Company agrees to make reasonable efforts to obtain
any license necessary to use the New Japan Index as described
herein.
Notwithstanding the foregoing provisions of this Section 2.07, unless
the Nikkei 225 Index is no longer published and/or the Nikkei 225
Futures Contracts shall have been delisted from trading on the OSE, a
Substitution Event will not be deemed to have occurred on any of the
60 days next preceding the Expiration Date.
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ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANTHOLDERS
SECTION 3.01. WARRANTHOLDER OF WARRANT MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any
Warrantholder, without the consent of the Warrant Agent, may, 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, and to receive payment
for, its Warrants as provided in this Agreement.
ARTICLE IV
WARRANTS ACQUIRED BY THE COMPANY;
PAYMENT OF TAXES
SECTION 4.01. WARRANTS ACQUIRED BY THE COMPANY. In the event
the Company shall purchase or otherwise acquire Warrants, such Warrants
may, at the option of the Company, be (i) in the case of Certificated
Warrants, delivered to the Warrant Agent, and if so delivered the
Warrant Agent shall promptly note the cancellation of such Warrants on
the records of the Warrant Agent or (ii) in the case of Book-Entry
Warrants, surrendered free through a Participant to the Depository for
credit to the account of the Warrant Agent maintained at the
Depository, and if so credited, the Warrant Agent shall promptly note
the cancellation of such Warrants by notation on the records of the
Warrant Agent. In the case of Book-Entry Warrants, such Warrants 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 Depository. No Warrant Certificate shall be countersigned in lieu
of, or in exchange for, any Warrant which is canceled as provided
herein, except as otherwise expressly permitted by this Agreement.
Any canceled Warrant Certificate held by the Warrant Agent
under this Agreement shall be destroyed by the Warrant Agent unless
otherwise directed by the Company, and the Warrant Agent shall deliver
a certificate with respect to such destruction to the Company.
SECTION 4.02. PAYMENT OF TAXES. The Company will pay all
stamp, withholding and other duties, if any, attributable to the
initial issuance of Warrants; provided, however, that, anything in
this Agreement to the contrary notwithstanding, the Company shall not
be required to pay any tax or other governmental charge which may be
payable in respect of any
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transfer involving any beneficial or record interest in, or ownership
interest of, any Warrants, Warrant Certificates or Global Warrant
Certificate which tax or other governmental charge shall be paid by
the appropriate Warrantholder or Registered Holder.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. WARRANT AGENT. (a) The Company hereby appoints
Chemical Bank ("Chemical") as the Warrant Agent of the Company in
respect of the Warrants, upon the terms and subject to the conditions
set forth herein; and Chemical 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. All of the terms and provisions with
respect to such powers and authority contained in any Warrant
Certificates or the Global Warrant Certificate are subject to and
governed by the terms and provisions hereof.
(b) Chemical covenants and agrees to maintain an office staffed
by qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Agreement, including, without limitation,
the computation of Cash Settlement Value 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, 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 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, 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 for, and to hold it 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, arising out of, or in
connection with,
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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.
(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 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 thing suffered by
it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by
it to be genuine and to have been presented or signed by the proper
parties.
(e) The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any 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 depository, 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 moneys at any time received by it pursuant to any of
the provisions of this Agreement nor shall it be obligated to
segregate such moneys from other moneys 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 tb the
validity or execution of the Warrant Certificates or the Global
Warrant Certificate (except its countersignature thereof).
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(h) The recitals contained herein and in any Warrant
Certificates or the Global Warrant Certificate (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 herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement 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 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.
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 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, 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
hereof, 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 Warrants, that there shall at all times be a Warrant Agent
hereunder until (i) all the Warrants are no longer outstanding or (ii)
until moneys for the payment of all outstanding Warrants, if any,
shall have been paid to the Warrant Agent and shall have been returned
to the Company as provided in Section 2.06, whichever occurs earlier.
(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 in the Borough of
Manhattan, the City of New York) and the acceptance of such
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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. 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.
(c) In case at any time the Warrant Agent shall give notice of
its intent to resign, or be removed, or become incapable of acting, or
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 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
the 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, trust,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive,
all moneys, securities and other property on deposit with or held by
such predecessor (including, without limitation, the Warrant
Register), as the 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
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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. (a) This Agreement and the terms
of the Warrants may be amended by the Company, the Warrant Agent and
the Determination Agent, without the consent of the Warrantholders,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein
or therein or in any other manner which the Company may deem necessary
or desirable and which will not 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 countersigning by the Warrant Agent of Warrant Certificates evi-
dencing in the aggregate in excess of 1,150,000 Warrants unless and
until the Warrant Agent has received notice from the AMEX or any
successor United States national securities exchange that the
additional Warrants in excess of 1,150,000 have been approved for
listing on such exchange.
(b) The Company, the Warrant Agent and the Determination
Agent may modify or amend this Agreement, with the consent of
Warrantholders holding not less than a majority in number of the then
outstanding Warrants affected by such modification or amendment, for
any purpose; provided, however, that no such modification or amendment
that decreases the Strike Index, shortens the period of time during
which the Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Warrantholders or reduces
the percentage of the number of outstanding Warrants, 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, THE
WARRANT AGENT AND THE DETERMINATION AGENT. If the Warrant Agent or
the Determination Agent shall receive any notice or demand addressed
to the Company by any Warrantholder pursuant to the provisions of this
Agreement, the Warrant Agent or the Determination Agent, as the case
may be, 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 addressed to
Chemical Bank, 450 West 33rd
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Street, New York, New York 10001, Attn: Corporate and Municipal
Agency Department, 15th Floor (telephone: (212) 971-3276; facsimile:
(212) 971-3498), and any communications to the Company with respect to
this Agreement shall be addressed to The Bear Stearns Companies Inc.,
245 Park Avenue, New York, New York 10167, Attention: Secretary
(telephone: (212) 272-4394; facsimile: (212) 272-8904), and any
communications to the Determination Agent with respect to this
Agreement shall be addressed to Bear, Stearns & Co. Inc., 245 Park
Avenue, New York, New York 10167, Attention: Tim Murray (telephone:
(212) 272-5138; facsimile: (212) 272-9857) (or such other address as
shall be specified in writing by the Warrant Agent, the Company or the
Determination Agent, respectively).
SECTION 6.04. NOTICES TO HOLDERS. The Company may cause to
have notice given to the holders of Warrants by providing the Warrant
Agent with a form of notice to be distributed by (i) in the case of
Certificated Warrants, the Warrant Agent to the Warrantholders or (ii)
in the case of Book-Entry Warrants, the Depository with a form of such
notice to be distributed by the Depository to Participants in
accordance with the custom and practices of the Depository.
SECTION 6.05. OBTAINING OF APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and
keep effective (a) any and all permits, consents and approvals of
governmental agencies and authorities and the AMEX or any successor
national securities exchange and (b) any and all filings or notices
under United States Federal and state securities laws, which may be or
become required in connection with the issuance, sale, trading,
transfer or delivery of the Warrant Certificates, the Global Warrant
Certificate or the exercise of the 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, the registered holder of the
Global Warrant Certificate 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, and their respective successors, the
registered holder of the Global Warrant Certificate 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,
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Participants or any person certified by any Participant to be an
indirect participant of the Depository or any person certified by any
Participant to be a Warrantholder, in each case, on behalf of whom
such Participant holds Warrants.
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. APPLICABLE LAW. THIS AGREEMENT AND EACH
WARRANT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto as of the day and year first above written.
THE BEAR STEARNS COMPANIES INC.
By:_________________________________
Name:
Title:
CHEMICAL BANK
By:_________________________________
Name:
Title:
BEAR, STEARNS & CO. INC.
By:_________________________________
Name:
Title:
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
No. CUSIP No.
THE BEAR STEARNS COMPANIES INC.
Japan Index Put Warrants
Expiring ______ __, 1997
This Warrant Certificate certifies that
, or registered assigns, is the registered holder of
Japan Index Put Warrants Expiring ______ __, 1997 (the "Warrants").
Upon receipt by the Warrant Agent of this Warrant Certificate and the
notice of exercise on the reverse hereof (or a notice of exercise in
substantially identical form delivered herewith), duly completed and
executed, at the offices" of the Warrant Agent in the Borough of
Manhattan, The City of New York, each Warrant entitles the beneficial
owner thereof (each a "Warrantholder") to receive, subject to the
conditions set forth herein and in the Warrant Agreement, from The
Bear Stearns Companies Inc. (the "Company") the cash settlement value
in U.S. dollars (the "Cash Settlement Value") equal to the quotient
(rounded down to the nearest cent) of (A) the amount, if any, by which
the Strike Index (as defined herein) exceeds the closing level of the
Index (as defined herein), as calculated and published, on the
applicable Valuation Date for such Warrant (the "Spot Index"), divided
by (B) the Warrant Divisor (as defined herein); provided, however,
that if such amount is less than or equal to zero, then the Cash
Settlement Value shall be zero. In no event shall a Warrantholder be
entitled to any interest on any amount payable on the exercise
(including automatic exercise) of Warrants.
Subject to the terms of the Warrant Agreement, each Warrant
may be irrevocably exercised, in whole but not in part, at or prior to
3:00 p.m., New York City time, on any New York Business Day from its
date of issuance until 3:00 p.m., New York City time, on the New York
Business Day immediately preceding the earlier of (i) _____ __, 1997
(the "Expiration Date") or (ii) the Delisting Date (as defined
herein), at which time the Warrants shall expire and all Warrants
evidenced hereby shall be automatically exercised and otherwise shall
be void. Except in the case of automatic exercise or cancellation of
the Warrants, as set forth herein and in the Warrant Agreement, not
fewer than 500 Warrants may be exercised by or on behalf of any one
Warrantholder at any one time.
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Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
IN WITNESS WHEREOF, The Bear Stearns Companies Inc. has
caused this instrument to be duly executed.
Dated: ______________ __, 1994
THE BEAR STEARNS COMPANIES INC.
By:_____________________________
Name:
Title:
SEAL:
Attest:
By:_____________________________
Name:
Title:
Countersigned as of the date above written:
CHEMICAL BANK, as Warrant Agent
By:______________________________
Authorized Officer
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FORM OF WARRANT CERTIFICATE
REVERSE
THE BEAR STEARNS COMPANIES INC.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a
Warrant Agreement, dated as of ____ __, 1994 (the "Warrant
Agreement"), among the Company, Chemical Bank (the "Warrant Agent")
and Bear, Stearns & Co. Inc. (the "Determination Agent") and is
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 and which Warrant
Agreement is hereby incorporated by reference in, and made a part of,
this Warrant Certificate. A copy of the Warrant Agreement is on file
at the Warrant Agent's Office (as defined herein).
The Warrants constitute direct, unconditional and unsecured
obligations of the Company and rank on a parity with the Company's
other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
Subject to the provisions hereof and of the Warrant
Agreement, each Warrant may be irrevocably exercised, in whole but not
in part, at or prior to 3:00 p.m., New York City time, on any New York
Business Day (as defined herein) from its date of issuance until 3:00
p.m., New York City time, on the New York Business Day immediately
preceding the earlier of (i) the Expiration Date or (ii) the Delisting
Date (as defined herein). The holder of Warrants evidenced by this
Warrant Certificate may exercise them by surrendering this Warrant
Certificate and attached notice of exercise (or a notice of exercise
in substantially identical form), duly completed and executed, to the
Warrant Agent's offices in the Borough of Manhattan, The City of New
York (the "Warrant Agent's Office"), which is, on the date hereof,
located at 450 West 33rd Street, New York, New York 10001. Not fewer
than 500 Warrants may be exercised by or on behalf of any one
Warrantholder at any one time.
The "Cash Settlement Value" of an exercised Warrant shall be
an amount in U.S. Dollars equal to the quotient (rounded down to the
nearest cent) of (A) the amount, if any, by which the Strike Index
exceeds the closing level of the Index, as calculated and published,
on the applicable Valuation Date (as defined herein) for such Warrant
(the "Spot Index"), divided by (B) the Warrant Divisor; provided,
however, that if such amount is less than or equal to zero, then the
Cash Settlement Value shall be zero.
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The "Index" shall initially be the American Stock Exchange,
Inc. ("AMEX") Japan Index published by the AMEX (the "Japan Index").
Under certain circumstances set forth in the Warrant Agreement, a New
Japan Index (as defined in the Warrant Agreement) will be substituted
for the Japan Index, in which event such New Japan Index shall on and
after the Substitution Date (as defined herein) (i) be used in
calculating any Cash Settlement Value or Alternative Settlement Amount
(as defined herein) for the Warrants for any Valuation Date and (ii)
be the "Index" for purposes of the Warrant Agreement and the Warrant
Certificates.
If the Japan Index is not published by the AMEX (or, if a
New Japan Index has been substituted, the New Japan Index is not
published by the AMEX or another United States national securities
exchange), but is published by another person not affiliated with the
Company and acceptable to the Company (the "Third Party"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Japan Index (or, if a New Japan Index has been
substituted, the New Japan Index) as published by such Third Party and
(ii) the Japan Index (or, if a New Japan Index has been substituted,
the New Japan Index) published by such Third Party shall be the
"Index" for purposes of the Warrant Agreement and the Warrant
Certificates. If the AMEX or any Third Party discontinues publication
of the Japan Index (or, if a New Japan Index has been substituted, the
New Japan Index) and publishes a successor or substitute index that
the Company determines, in its sole discretion, to be comparable to
the Japan Index (or, if a New Japan Index has been substituted, the
New Japan Index) (any such index being a "Successor Index"), then (i)
any Cash Settlement Value or Alternative Settlement Amount for any
Valuation Date thereafter shall be determined based on the closing
level of the Successor Index on such date and (ii) such Successor
Index shall be the "Index" for purposes of the Warrant Agreement and
the Warrant Certificates.
The "Strike Index" shall initially be _____ and the "Warrant
Divisor" shall initially be __. If a New Japan Index is substituted
for the Japan Index pursuant to the Warrant Agreement, the Strike
Index and the Warrant Divisor shall each be adjusted as provided in
the Warrant Agreement.
"Tokyo Business Day" means any day other than (i) a Saturday
or a Sunday, (ii) a day on which banks are not open for business in
Tokyo, or (iii) a day on which the Tokyo Stock Exchange (the "TSE"),
the Singapore International Monetary Exchange Ltd. (the "SIMEX") or
the Osaka Securities Exchange (the "OSE") is not open for business.
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The Company has appointed Bear, Stearns & Co. Inc. to be the
Determination Agent to make such calculations as may be required upon
the occurrence of certain circumstances, as described in the Warrant
Agreement and herein, including, without limitation, calculation of
the Cash Settlement Value under certain circumstances or the
Alternative Settlement Amount, as applicable, of a Warrant. The
Determination Agent shall act as an independent expert and not as an
agent of the Company, and, unless otherwise provided by the Warrant
Agreement, its calculations and determinations under the Warrant
Agreement and this Warrant Certificate shall, absent manifest error,
be final and binding on the Company, the Warrant Agent and the
Warrantholders.
In the event that the AMEX or the Third Party makes a
material change in the formula for, or the method of, calculating the
Index, the Determination Agent shall make such calculations as may be
required to determine the applicable Cash Settlement Value and/or
Alternative Settlement Amount using the formula and method of
calculating the Index as was in effect prior to such change or
modification.
If the AMEX and/or any Third Party discontinues publication
of the Index and, after giving effect thereto, there is no published
index used for purposes of determining the applicable Cash Settlement
Value and/or Alternative Settlement Amount, the Company will cause the
Determination Agent to determine the applicable Cash Settlement Value
and/or Alternative Settlement Amount based on the formula and method
used in calculating the Index as in effect on the date the Index was
last published.
The Determination Agent will have no responsibility for good
faith errors or omissions in calculating or disseminating information
regarding the Index, adjustments or calculations by the Determination
Agent in order to arrive at a calculation of a stock index comparable
to the Index or the Cash Settlement Value or the Alternative
Settlement Amount, as applicable.
Subject to the Warrant Agreement and this Warrant Certi-
ficate, and except in the event of an Extraordinary Event or Exercise
Limitation Event (as such terms are defined herein), the valuation
date (the "Valuation Date") for a Warrant shall be the first Index
Calculation Date (as defined herein) following the applicable Exercise
Date (as defined herein). The Exercise Date for a Warrant will be the
first New York Business Day on which the Warrant Agent has received
(i) in the case of Warrants other than those held through the
facilities of Cedel S.A. ("CEDEL") or the Euroclear System
("Euroclear"), the Warrant Certificate representing such Warrant, with
the notice of exercise below (or a notice of exercise in substantially
identical form delivered herewith), duly completed and executed, at or
prior to 3:00 p.m.,
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New York City time; and if the Warrant Agent shall receive any such
Warrant Certificate or notice of exercise after 3:00 p.m., New York
City time, on such date, then such Warrant Certificate shall be deemed
to have been received at or prior to 3:00 p.m., New York City time, on
the next succeeding New York Business Day (which shall be considered
the Exercise Date), and in such event the Valuation Date shall be the
next Index Calculation Date following the New York Business Day on
which the Warrant Agent is deemed to have received such Warrant
Certificate together with the notice of exercise or (ii) in the case
of Warrants held through the facilities of CEDEL or Euroclear, the
notice of exercise (by facsimile transmission) at or prior to 3:00
p.m., New York City time; provided that the Warrant Certificate is
received by the Warrant Agent by 3:00 p.m., New York City time, on the
applicable Valuation Date; and if the Warrant Agent shall receive such
notice of exercise after 3:00 p.m., New York City time, on such date,
then the notice of exercise shall be deemed to have been received at
or prior to 3:00 p.m., New York City time, on the next succeeding New
York Business Day (which shall be considered the Exercise Date), and
in such event the Valuation Date shall be the next Index Calculation
Date following the New York Business Day on which the Warrant Agent is
deemed to have received such notice of exercise; provided, however,
that if the Warrant Agent receives the Warrant Certificate after 3:00
p.m., New York City time, on the Valuation Date, then the Exercise
Date for such Warrant shall be the day on which such Warrant
Certificate is received or, if such day is not a New York Business
Day, the next succeeding New York Business Day, and the Valuation Date
for such Warrant shall be the first Index Calculation Date following
such Exercise Date; provided, further, however, in the case of
exercises by Euroclear Participants, Euroclear must by facsimile to
the Warrant Agent by 9:00 a.m., New York City time, on the Valuation
Date confirm that the Warrants will be received by the Warrant Agent
on such date, provided, that if such facsimile is received after 9:00
a.m., New York City time, on the Valuation Date, the Company will be
entitled to direct the Warrant Agent to reject the related notice of
exercise or waive the requirement for timely delivery of such
facsimile. Any Warrant Certificate received after 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) the Expiration Date or (ii) the effective date on which
the Warrants are delisted from, or permanently suspended from trading
(within the meaning of the Securities Exchange Act of 1934 and the
rules and regulations of the Securities and Exchange Commission
thereunder) on, the AMEX and not accepted at the same time for listing
on another United States national securities exchange (such effective
date being the "Delisting Date") or, in the case of Warrants held
through the facilities of CEDEL or Euroclear, after 3:00 p.m., New
York City time, on the first Index Calculation Date following such New
York Business Day, shall be deemed not to have been delivered and
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the related notice of exercise shall be void and of no effect;
provided, however, that if the Company first receives notice of the
delisting or suspension of the Warrants on the same day on which such
Warrants are delisted or suspended, such day will nevertheless be
deemed the Delisting Date for purposes of the Warrant Agreement and
this Warrant Certificate.
If the notice of exercise is not rejected as provided in the
Warrant Agreement, then the Warrant Agent or the Determination Agent,
as the case may be, will determine the Cash Settlement Value of the
exercised Warrants in accordance with the terms of the Warrant
Agreement. Except in the case of Warrants subject to automatic
exercise and Warrants that upon exercise entitle the holder thereof to
receive an Alternative Settlement Amount in lieu of the Cash
Settlement Value, if on any Valuation Date the Cash Settlement Value
for any Warrants then exercised would be zero, then in such case, the
exercise of such Warrants shall be ignored and the Warrant Certificate
evidencing such Warrants will be promptly returned by the Warrant
Agent to the registered holder of the Warrant by first class mail at
the Company's expense and such holder shall be permitted to re-
exercise such Warrants prior to the Expiration Date or the Delisting
Date.
Except in the case of Warrants subject to automatic exercise
and for Warrants that upon exercise entitle the holder thereof to
receive an Alternative Settlement Amount in lieu of the Cash
Settlement Value, payment shall be made available to the appropriate
holders on the fifth New York Business Day following the Valuation
Date for such Warrants (or, if the Valuation Date is not a New York
Business Day, on the fifth New York Business Day following the New
York Business Day next succeeding the Valuation Date) in the form of a
cashier's check or an official bank check, or (in the case of payments
of at least $100,000) by wire transfer to a U.S. dollar bank account
maintained by such holder in the United States (at the holder's
election as specified in the notice of exercise), in an amount equal
to the aggregate Cash Settlement Value of the exercised Warrants.
All Warrant Certificates for which the Warrant Agent has not
received a notice of exercise in proper form by 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) the Expiration Date or (ii) the Delisting Date, as the
case may be, or for which the Warrant Agent has received a notice of
exercise in proper form but with respect to which timely delivery of
the relevant Warrant Certificate has not been made, and which have not
been canceled prior to such time, will be deemed automatically
exercised on such New York Business Day without any requirement of a
notice of exercise to the Warrant Agent. The Exercise Date for such
Warrants shall be such New York Business Day and the Valuation
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Date for such Warrants shall be the first Index Calculation Date
following the Exercise Date for such Warrants.
If the Company determines that an Extraordinary Event or an
Exercise Limitation Event has occurred and is continuing on the
Expiration Date or the Delisting Date, the Cash Settlement Value with
respect to the exercised Warrants shall be equal to, and be calculated
in the same manner and be payable at the same time as, the Alternative
Settlement Amount (treating the Expiration Date or the Delisting Date,
as the case may be, as the date on which the Warrants were canceled),
as provided below and in the Warrant Agreement.
Except as provided in the preceding paragraph, payment with
respect to automatically exercised Warrants shall be made available to
the appropriate registered holders of the Warrants in the form of a
cashier's check or an official bank check, or (in the case of payments
of at least $100,000) by wire transfer to a U.S. dollar bank account
maintained by such holder in the United States (at such holder's
election), on the fourth New York Business Day following the Valuation
Date for automatically exercised Warrants (or if such Valuation Date
is not a New York Business Day, on the fourth New York Business Day
following the New York Business Day next succeeding such Valuation
Date), against receipt by the Warrant Agent at the Warrant Agent's
Office from the holder of its Warrant Certificates. Such payment
shall be in the amount of the aggregate Cash Settlement Value in
respect of the Warrants evidenced by the Warrant Certificates that
were automatically exercised.
Anything in the Warrant Agreement or in this Warrant
Certificate to the contrary notwithstanding, if the Company determines
that an Extraordinary Event or an Exercise Limitation Event has
occurred and is continuing on the Tokyo Business Day with respect to
which the Spot Index on a Valuation Date is to be determined (the
"Applicable Tokyo Business Day"), then the Cash Settlement Value of
any Warrants in respect of an exercise shall be calculated on the
basis that the Valuation Date shall be the next Index Calculation Date
following such Applicable Tokyo Business Day on which there is no
Extraordinary Event or Exercise Limitation Event; provided, however,
that if the Cash Settlement Value of such Warrants is not calculated
on or prior to the Expiration Date or the Delisting Date, then the
Warrantholders will receive the Alternative Settlement Amount in lieu
of the Cash Settlement Value which shall be calculated as if the
Warrants had been canceled on the Expiration Date or the Delisting
Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing and if it is expected by the Company to
continue, the Company may immediately cancel the
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Warrants by notifying the Warrant Agent of such cancellation (the date
such Warrants are canceled being the "Cancellation Date"), and each
Warrantholder's rights with respect to the Warrants and under the
Warrant Agreement shall thereupon cease; provided however, that each
Warrant shall be exercised (even if such Warrant would not otherwise
be exercisable on such date because of the Limit Option (as defined in
the Warrant Agreement)) on the basis that the Valuation Date for such
Warrant shall be the Cancellation Date and each Warrantholder shall
have the right to receive an Alternative Settlement Amount with
respect to its Warrants. The Company shall use its best efforts to
notify the Warrantholders promptly of such cancellation.
With respect to all Warrant Certificates as to which the
Valuation Date has been postponed or which have been canceled as
described above, payment shall be made available to the appropriate
registered holders of the Warrants on the third New York Business Day
following the date on which the Cash Settlement Value or Alternative
Settlement Amount, as the case may be, has been calculated, against
receipt by the Warrant Agent at the Warrant Agent's Office from such
holder of its Warrant Certificates. Such payment shall be in the
amount of the aggregate Cash Settlement Value or Alternative
Settlement Amount, as the case may be, in respect of the Warrants
evidenced by such Warrant Certificates.
The "Alternative Settlement Amount" shall be an amount,
determined by the Determination Agent, which is equal to the amount
"X" calculated using the formula set forth below:
X = I + [(T/2) x (A/B)]
where
I = the Cash Settlement Value of the Warrants determined as
described above but calculated with a Spot Index
determined by the Determination Agent which, subject to
approval by the Company (such approval not to be unrea-
sonably withheld), in the reasonable opinion of the
Determination Agent, fairly reflects the value of the
stocks which comprise the Index on the Cancellation
Date;
T = U.S.$____, the initial offering price per Warrant;
A = the total number of days from but excluding the
Cancellation Date for such Warrants to and including
the Expiration Date; and
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B = the total number of days from but excluding the date
the Warrants were initially sold to and including the
Expiration Date.
For purposes of determining "I" in the above formula, in
event that the Determination Agent and the Company are required, but
have not, after good faith consultation with each other and within
five days following the first day upon which such Alternative
Settlement Amount may be calculated in accordance with the above
formula, agreed upon a Spot Index which fairly reflects the value of
the stocks which comprise the Index on the Cancellation Date, then the
Determination Agent shall promptly nominate a third party, subject to
approval by the Company (such approval not to be unreasonably
withheld), to determine such figure and calculate the Alternative
Settlement Amount in accordance with the above formula. Such party
shall act as an independent expert and not as an agent of the Company
or the Determination Agent, and its calculation and determination of
the Alternative Settlement Amount shall, absent manifest error, be
final and binding on the Company, the Warrant Agent, the Determination
Agent and the Warrantholders. Any such calculations will be made
available to a Warrantholder for inspection at the Warrant Agent's
Office. Neither the Company, the Determination Agent nor such third
party shall have any responsibility for good faith errors or omissions
in calculating the Alternative Settlement Amount.
An "Extraordinary Event" shall mean any one of the events,
circumstances or causes listed below:
(i) a suspension or absence of trading on the TSE of
all the underlying stocks which then comprise the Index; or
(ii) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of
any U.S. or non-U.S. governmental authority or court that
would make it unlawful for the Company to perform any of its
obligations under the Warrant Agreement or the Warrants or
that has or, in the judgment of the Company, is likely to
have, a material adverse effect on the ability of the
Company to perform its obligations under the Warrants or to
modify the hedge of its position with respect to the Index;
or
(iii) any outbreak or escalation of hostilities or other
national or international calamity or crisis (including,
without limitation, natural calamities which, in the opinion
of the Company, may materially and adversely affect the
economy of Japan or the trading of securities generally on
the TSE) that has,
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or, in the judgment of the Company, is likely to have, a
material adverse effect on the ability of the Company to
perform its obligations under the Warrants or to modify the
hedge of its position with respect to the Index.
An "Exercise Limitation Event" shall mean any one of the
events, circumstances or causes listed below:
(i) a suspension or absence of trading on the TSE of
20% or more (in number) of the underlying stocks which then
comprise the Index; or
(ii) the suspension or material limitation on the
SIMEX, the OSE or the AMEX or any other major futures,
options or securities market of trading in futures or
options contracts related to the Nikkei 225 Index (or, in
the event of a substitution of the New Japan Index for the
Japan Index, the Nikkei 300 Index) or the Index.
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 registered owner hereof as the
absolute owner of the Warrants evidenced hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose
whatsoever, 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.
The Warrant Agent shall, in accordance with the Warrant
Agreement, from time to time register the transfer of this Warrant
Certificate upon the records to be maintained by it for that purpose
at the Warrant Agent's Office upon surrender hereof, duly endorsed, or
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent duly executed, by the registered
holder(s) hereof or by their duly appointed legal representative or
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 member of a national securities exchange. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to
the transferee(s).
As provided in the Warrant Agreement and subject to certain
limitations, this Warrant Certificate may be exchanged for other
Warrant Certificates, representing a like number of Warrants, upon
surrender to the Warrant Agent of this Warrant Certificate at the
Warrant Agent's Office.
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No service charge shall be made for any registration of
transfer or exchange of this Warrant Certificate, 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 this Warrant Certificate,
other than exchanges pursuant to the Warrant Agreement not involving
any transfer.
Capitalized terms included herein but not defined herein
have the meanings assigned thereto in the Warrant Agreement.
References herein to "U.S. dollars", "U.S.$" or "$" are to
the lawful currency of the United States of America. As used herein,
a "New York Business Day" means any day other than a Saturday or a
Sunday in New York City or a day on which either the AMEX or the New
York Stock Exchange is not open for securities trading or commercial
banks in New York City are required or authorized by law or executive
order to remain closed; and an "Index Calculation Date" means any
Tokyo Business Day on which the Index is calculated and published.
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.
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NOTICE OF EXERCISE
Chemical Bank
450 West 33rd Street
New York, New York 10001
1. This Notice DOES DOES NOT relate to
"Contingently Tendered Warrants" subject to a Limit Option, as
provided for in the Warrant Agreement. If any of the Warrants to
which this Notice of Exercise relates are Contingently Tendered
Warrants, ______________________ of such Warrants (not less than 500)
are Contingently Tendered Warrants and ____________ (must be either
zero or not less than 500) are not. If the Spot Index used to
determine the Cash Settlement Value of Contingently Tendered Warrants
is higher than the Reference Index by 5% or more, a Notice of Exercise
with respect to such Contingently Tendered Warrants shall be void and
of no effect (and shall be disregarded for all purposes of the Warrant
Agreement).
2. Subject to paragraph 1, the undersigned (the
"Owner") hereby irrevocably exercises Warrants
(the "Exercised Warrants") and delivers to you herewith a Warrant
Certificate or Certificates, registered in the Owner's name,
representing a number of Warrants at least equal to the number of
Exercised Warrants. Each beneficial owner of Warrants that is
exercising Warrants pursuant to this Notice of Exercise is exercising
no fewer than 500 Warrants.
3. The Owner hereby directs the Warrant Agent
(a) to pay the Cash Settlement Value, if any, with respect to the
Exercised Warrants:
By cashier's check or an official bank check;
or
By wire transfer to the following U.S. dollar bank
account in the United States:
(Minimum payments of $100,000 only)
Bank:
ABA Routing No.:
Account No.: Reference:
; and (b) if the number of Exercised Warrants is less than the number
of Warrants represented by the enclosed Warrant
<PAGE>
<PAGE>
Certificate, to deliver a Warrant Certificate representing
the unexercised Warrants to .
Dated: , 19
____________________________
(Owner)
by _________________________
Authorized Signature
Address:
Telephone: ( )
<PAGE>
<PAGE>
EXHIBIT A-1
FORM OF GLOBAL WARRANT CERTIFICATE
No. _______________CUSIP No. _________
THE BEAR STEARNS COMPANIES INC.
Global Warrant Certificate Representing
AMEX Japan Index Put Warrants
Expiring _________, 1997
This certifies that CEDE & CO., or registered assigns, is the
registered holder of AMEX Japan Index Put Warrants
Expiring _______ __, 1997 (the "Warrants"). Each Warrant entitles the
beneficial owner thereof (each a "Warrantholder") to receive, subject
to the conditions set forth herein and in the Warrant Agreement, from
The Bear Stearns Companies Inc. (the "Company") the cash settlement
value in U.S. dollars (the "Cash Settlement Value") equal to the
quotient (rounded down to the nearest cent) of (A) the amount, if any,
by which the Strike Index (as defined in the Warrant Agreement)
exceeds the closing level of the Index (as defined in the Warrant
Agreement) on the applicable Valuation Date for such Warrant (the
"Spot Index"), divided by (B) the Warrant Divisor (as defined in the
Warrant Agreement); provided, however, that if such amount is less
than or equal to zero, then the Cash Settlement Value shall be zero.
In no event shall a Warrantholder be entitled to any interest on any
amount payable on the exercise (including automatic exercise) of
Warrants.
Subject to the terms of the Warrant Agreement, each Warrant
may be irrevocably exercised, in whole but not in part, at or prior to
3:00 p.m., New York City time, on any New York Business Day (as
defined herein) from its date of issuance until 3:00 p.m., New York
City time, on the New York Business Day immediately preceding the
earlier of (i) _______, 1997 (the "Expiration Date") or (ii) the
Delisting Date (as defined herein), at which time the Warrants shall
expire and all Warrants evidenced hereby shall be automatically
exercised and otherwise shall be void. The holder of Warrants
evidenced by this Warrant Certificate may exercise them only upon the
delivery of such Warrant free to the Warrant Agent and pursuant to an
irrevocable Notice of Exercise to the Warrant Agent from a Participant
(as defined in the Warrant Agreement) acting on behalf of such
Warrantholder. Except in the case of automatic exercise or
cancellation of the Warrants, as set forth herein and in the Warrant
Agreement, not fewer than 500 Warrants may be exercised by or on
behalf of any one Warrantholder at any one time.
<PAGE>
<PAGE>
This Global Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
The Warrants evidenced by this Global Warrant Certificate
are part of a duly authorized issue of Warrants issued by the Company
pursuant to a Warrant Agreement, dated as of ________ __, 1994 (the
"Warrant Agreement"), among the Company, Chemical Bank (the "Warrant
Agent") and Bear, Stearns & Co. Inc. (the "Determination Agent"), and
is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Warrantholders,
the entities through which such Warrantholders hold their beneficial
interests in the Warrants and the registered holder of this Global
Warrant Certificate consent by acceptance of this Warrant Certificate
by the Depository and which Warrant Agreement is hereby incorporated
by reference in and made a part of this Warrant Certificate. A copy
of the Warrant Agreement is on file at the Warrant Agent's Office,
which is located at 450 West 33rd Street, New York, New York 10001.
The Warrants constitute direct, unconditional and unsecured
obligations of the Company and rank on a parity with the Company's
other unsecured contractual obligations and with the Company's
unsecured and unsubordinated debt.
Subject to the Warrant Agreement and this Global Warrant
Certificate, and except in the event an Extraordinary Event or
Exercise Limitation Event (as such terms are defined in the Warrant
Agreement), the valuation date (the "Valuation Date") for a Warrant
shall be the first Index Calculation Date (as defined herein)
following the Exercise Date (as defined herein). The Exercise Date
for a Warrant will be the first New York Business Day (as defined
herein) on which the Warrant Agent has received (i) in the case of
Warrants other than those held through the facilities of Cedel S.A.
("CEDEL") or the Euroclear System ("Euroclear"), the Warrant, with the
Notice of Exercise (as defined in the Warrant Agreement) (or a Notice
of Exercise in substantially identical form delivered herewith), duly
completed and executed, at or prior to 3:00 p.m., New York City time;
and if the Warrant Agent shall receive any such Warrant or Notice of
Exercise after 3:00 p.m., New York City time, on such date, then such
Warrant shall be deemed to have been received at or prior to 3:00
p.m., New York City time, on the next succeeding New York Business Day
(which shall be considered the Exercise Date), and in such event the
Valuation Date shall be the next Index Calculation Date following the
New York Business Day on which the Warrant Agent is deemed to have
received such Warrant together with the Notice of Exercise or (ii) in
the case of Warrants held through the facilities of CEDEL or
Euroclear, the Notice of Exercise (by facsimile transmission) at or
prior to 3:00 p.m., New York City time; provided that the Warrant is
received by the
<PAGE>
<PAGE>
Warrant Agent by 3:00 p.m., New York City time, on the applicable
Valuation Date; and if the Warrant Agent shall receive such Notice of
Exercise after 3:00 p.m., New York City time, on any New York Business
Day, then the Notice of Exercise shall be deemed to have been received
at or prior to 3:00 p.m., New York City time, on the next succeeding
New York Business Day (which shall be considered the Exercise Date),
and in such event the Valuation Date shall be the next Index
Calculation Date following the New York Business Day on which the
Warrant Agent is deemed to have received such Notice of Exercise;
provided, however, that if the Warrant Agent receives the Warrant
after 3:00 p.m., New York City time, on the Valuation Date, then the
Exercise Date for such Warrant shall be the day on which such Warrant
is received or, if such day is not a New York Business Day, the next
succeeding New York Business Day, and the Valuation Date for such
Warrant shall be the first Index Calculation Date following such
Exercise Date; provided, further, however, in the case of exercises by
Euroclear Participants, Euroclear must by facsimile to the Warrant
Agent by 9:00 a.m., New York City time, on the Valuation Date confirm
that the Warrants will be received by the Warrant Agent on such date,
provided that if such facsimile is received after 9:00 a.m., New York
City time, on the Valuation Date, the Company will be entitled to
direct the Warrant Agent to reject the related Notice of Exercise or
waive the requirement for timely delivery of such facsimile. Any
Warrant received after 3:00 p.m., New York City time, on the New York
Business Day immediately preceding the earlier of (i) the Expiration
Date or (ii) the effective date on which the Warrants are delisted
from, or permanently suspended from trading (within the meaning of the
Securities Exchange Act of 1934 and the rules and regulations of the
Securities and Exchange Commission thereunder) on, the AMEX and not
accepted at the same time for listing on another United States
national securities exchange (such effective date being the "Delisting
Date") (or, in the case of Warrants held through the facilities of
CEDEL or Euroclear, after 3:00 p.m., New York City time, on the first
Index Calculation Date following such New York Business Day), shall be
deemed not to have been delivered and the related Notice of Exercise
shall be void and of no effect; provided, however, that if the Company
first receives notice of the delisting or suspension of the Warrants
on the same day on which such Warrants are delisted or suspended, such
day will nevertheless be deemed the Delisting Date for purposes of the
Warrant Agreement and this Global Warrant Certificate.
All Warrants for which the Warrant Agent has not received a
Notice of Exercise in proper form by 3:00 p.m., New York City time, on
the New York Business Day immediately preceding the earlier of (i) the
Expiration Date or (ii) the Delisting Date, as the case may be, or for
which the Warrant Agent has received a notice of exercise in proper
form but with respect to which timely delivery of the related Warrant
has not
<PAGE>
<PAGE>
been made, and which have not been canceled prior to such time, will
be deemed automatically exercised on such New York Business Day
without any requirement of a Notice of Exercise to the Warrant Agent.
The Exercise Date for such Warrants shall be such New York Business
Day and the Valuation Date for such Warrants shall be the first Index
Calculation Date following the Exercise Date for such Warrants.
If the Company determines that an Extraordinary Event or an
Exercise Limitation Event has occurred and is continuing on the
Expiration Date or the Delisting Date, the Cash Settlement Value with
respect to the exercised Warrants shall be equal to, and be calculated
in the same manner as, an Alternative Settlement Amount (treating the
Expiration Date or the Delisting Date, as the case may be, as the date
on which the Warrants were canceled), as provided below and in the
Warrant Agreement.
Anything in the Warrant Agreement or in this Global Warrant
Certificate to the contrary notwithstanding, if the Company determines
that an Extraordinary Event or an Exercise Limitation Event has
occurred and is continuing on the Tokyo Business Day (as defined
herein) with respect to which the Spot Index on a Valuation Date is to
be determined (the "Applicable Tokyo Business Day"), then the Cash
Settlement Value of any Warrants in respect of an exercise shall be
calculated on the basis that the Valuation Date shall be the next
Index Calculation Date following such Applicable Tokyo Business Day on
which there is no Extraordinary Event or Exercise Limitation Event;
provided, however, that if the Cash Settlement Value of such Warrants
is not calculated on or prior to the Expiration Date or the Delisting
Date, then the Warrantholders will receive the Alternative Settlement
Amount in lieu of the Cash Settlement Value which shall be calculated
as if the Warrants had been canceled on the Expiration Date or the
Delisting Date, as the case may be.
If the Company determines that an Extraordinary Event has
occurred and is continuing and if it is expected by the Company to
continue, the Company may immediately cancel the Warrants by notifying
the Warrant Agent of such cancellation (the date such Warrants are
canceled being the "Cancellation Date"), and each Warrantholder's
rights with respect to the Warrants and under the Warrant Agreement
shall thereupon cease; provided however, that each Warrant shall be
exercised (even if such Warrant would not otherwise be exercisable on
such date because of the Limit Option (as defined in the Warrant
Agreement)) on the basis that the Valuation Date for such Warrant
shall be the Cancellation Date and each Warrantholder shall have the
right to receive an Alternative Settlement Amount with respect to its
Warrants. The Company shall use its best efforts to notify the
Warrantholders promptly of such cancellation.
<PAGE>
<PAGE>
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 registered owner hereof as the
absolute owner of the Warrants evidenced hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose
whatsoever, 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.
The Warrant Agent shall, in accordance with the Warrant
Agreement, from time to time register the transfer of this Global
Warrant Certificate in its records (which may be maintained
electronically) to be maintained by it for that purpose at the Warrant
Agent's Office upon surrender hereof, duly endorsed, or accompanied by
a written instrument or instruments of transfer in form satisfactory
to the Warrant Agent duly executed, by the registered holder hereof or
by the duly appointed legal representative or duly authorized attorney
thereof, such signature to be guaranteed by a bank or trust company
with a correspondent office in the City of New York or by a member of
a national securities exchange. Upon any such registration of
transfer, a New Global Warrant Certificate shall be issued to the
transferee(s).
Exercises of Warrants are subject to the Limit Option as
provided in the Warrant Agreement.
Capitalized terms included herein but not defined herein
have the meanings assigned thereto in the Warrant Agreement.
References herein to "U.S. dollars", "U.S.$" or "$"
are to the lawful currency of the United States of America. As used
herein, a "New York Business Day" means any day other than a Saturday,
Sunday or a day on which either the AMEX or the New York Stock
Exchange is not open for securities trading or commercial banks in New
York City are required or authorized by law or executive order to
remain closed; a "Tokyo Business Day" means any day other than (i) a
Saturday or a Sunday, (ii) a day on which banks are not open for
business in Tokyo or (iii) a day on which the Tokyo Stock Exchange
(the "TSE"), the Singapore International Monetary Exchange Ltd. (the
"SIMEX") or the Osaka Securities Exchange (the "OSE") is not open for
business; and an "Index Calculation Date" means any Tokyo Business Day
on which the Index is calculated and published.
The Warrant Agreement and the terms of the Warrants are
subject to amendment, as provided in the Warrant Agreement.
<PAGE>
<PAGE>
THIS GLOBAL WARRANT CERTIFICATE SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, The Bear Stearns Companies Inc. has
caused this instrument to be duly executed.
Dated: , 1994 THE BEAR STEARNS COMPANIES INC.
By_____________________________
Name:
Title:
Corporate Seal:
Attest:
By_____________________
Secretary
Countersigned as of the date above written:
CHEMICAL BANK, as Warrant Agent
By_____________________
Authorized Officer
<PAGE>
<PAGE>
EXHIBIT A-2
NOTICE OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
Chemical Bank
450 West 33rd Street
New York, New York 10001
(Facsimile: (212) 422-2648)
(Telephone: (212) 623-0692)
1.We refer to the Warrant Agreement, dated as of _______, 1994 (the
"Warrant Agreement"), among The Bear Stearns Companies (the
"Company"), Chemical Bank, as warrant agent (the "Warrant Agent"), and
Bear, Stearns & Co. Inc., as determination agent (the "Determination
Agent"). On behalf of certain beneficial owners, each of whom is
exercising no fewer than 500 Warrants that are covered by this Notice
of Exercise and whose Warrants have been, or will be, transferred to
the Warrant Agent in accordance with the provisions of the
Representations Letter, we hereby irrevocably exercise
Warrants (the "Tendered Warrants"). We hereby acknowledge that the
Warrants being exercised and this Notice of Exercise must be received
by you by 3:00 p.m., New York City time, on a New York Business Day in
order for the Valuation Date for the Tendered Warrants to be the Index
Calculation Date following such New York Business Day and that, if the
Warrants being exercised and this Notice of Exercise are received by
you after 3:00 p.m., New York City time, on a New York Business Day
(or, in the case of Warrants held through CEDEL or Euroclear, if the
Warrants are not received by 3:00 p.m., New York City time, on the
first Index Calculation Date following such New York Business Day),
the Valuation Date of the Tendered Warrants shall be the Index
Calculation Date next succeeding the New York Business Day on which
you have received or are deemed to have received by 3:00 P.M., New
York City Time, on such New York Business Day the Tendered Warrants
and this Notice of Exercise, in each case subject to certain
provisions of the Warrant Agreement.
2. If you determine that this Notice of Exercise has not
been duly completed or is not in proper form, this Notice of Exercise
will be void and of no effect and will be deemed not to have been
delivered.
3. We hereby direct you to make payment to us of amounts
payable to our clients as a result of the exercise of the Warrants
hereunder as follows:
<PAGE>
<PAGE>
By cashier's check or an official bank check;
or
By wire transfer to the following U.S. dollar bank account
in the United States:
(Minimum payments of $100,000 only)
Bank:
Account No.:
ABA Routing No.:
Reference:
4. The exercised Warrants covered hereby
ARE ARE NOT subject to the Limit Option.<F1>
FOR PARTICIPANTS - 5. We hereby certify that we are a
Participant of The Depository Trust Company (the "Depository") with
the present right to use and receive its services.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
Dated: , 19
NAME OF DEPOSITORY
PARTICIPANT
Participant Number
NAME OF EUROCLEAR
PARTICIPANT
NAME OF CEDEL
PARTICIPANT
By___________________________
Authorized Signature
Address:
Telephone: ( )
<F1> A separate Notice of Exercise shall be submitted with
respect to Warrants subject to the Limit Option and
Warrants not subject to the Limit Option.
<PAGE>
<PAGE>
EXHIBIT B
CONFIRMATION OF EXERCISE
For Warrants Represented by Warrant Certificates
We hereby confirm receipt of your Notice of Exercise with respect to
Warrants (the "Exercised Warrants") and the related
Warrant Certificates, which we have found to be duly completed and in
proper form. The Valuation Date of the Exercised Warrants was the
close
of business on ________________, 19__.
We hereby confirm that the aggregate Cash Settlement Value of the
Exercised Warrants is $ ($ per Warrant), which will
be made available to you in the form of a cashier's check or an
official bank check, or by wire transfer to the bank account
designated in your Irrevocable Notice of Exercise, in New York
Clearing House funds, for payment on the fifth New York Business Day
following the Valuation Date for such Warrants (or, if such Valuation
Date is not a New York Business Day, on the fifth New York Business
Day following the New York Business Day next succeeding the Valuation
Date for such Warrants).
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement, dated as of
__________, 1994, among The Bear Stearns Companies, Inc., Chemical
Bank and Bear, Stearns & Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B
NOTICE OF REJECTION
You are hereby notified that [the Notice of Exercise delivered by you
was determined by us not to have been properly completed in proper
form] [we did not receive from Euroclear a Euroclear Confirmation that
proper delivery of the Warrants to which the Notice of Exercise
delivered by you relates would be made on a timely basis, as set forth
in the Warrant Agreement, dated as of ____________, 1994, among The
Bear Stearns Companies Inc., Chemical Bank and Bear, Stearns & Co.
Inc.]. Accordingly, we have rejected your Notice of Exercise being
unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Warrant Agreement.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B-1
CONFIRMATION OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
We hereby confirm receipt of your Notice of Exercise with respect
toWarrants (the "Exercised Warrants") which were transferred by you
(or on your behalf) to our DTC Participant Account No.. Such Notice
we have found to be duly completed and in proper form. The Valuation
Date of Exercised Warrants was the close of business on
__________________, 19___.
[As set forth in your Notice of Exercise, none of the Warrants covered
thereby is subject to the Limit Option. Accordingly, for purposes
hereof, all such Warrants shall constitute Exercised Warrants which
number we hereby confirm to be .] [Your Notice of
Exercise stated that the Warrants covered thereby are subject to the
Limit Option. The applicable Reference Index for such Warrants is
and the Spot Index for the date that would otherwise be the
Valuation Date for such Warrants is . Such Spot Index
does not exceed such Reference Index by 5% or more. Accordingly, for
purposes hereof, all such Warrants shall constitute Exercised
Warrants. We hereby confirm the number of such Exercised Warrants to
be .]
We hereby confirm that the aggregate Cash Settlement Value
of the Exercised Warrants is $ ($
per Warrant), which will be made available to you in the form of a
cashier's check or an official bank check, or wire transfer to the
bank account designated in your Irrevocable Notice of Exercise, in New
York Clearing House funds, for payment on the fifth New York Business
Day following the Valuation Date for such Warrants (or, if such
Valuation Date is not a New York Business Day, on the fifth New York
Business Day following the New York Business Day next succeeding the
Valuation Date for such Warrants).
<PAGE>
<PAGE>
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement dated as of
________, 1994, among The Bear Stearns Companies Inc., Chemical Bank,
as Warrant Agent, and Bear, Stearns & Co. Inc., as Determination
Agent.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT B-1
NOTICE OF REJECTION
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
Witness:
You are hereby notified that [the Notice of Exercise delivered by you
was determined by us not to have been properly completed in proper
form] [we did not receive from Euroclear a Euroclear Confirmation that
proper delivery of the Warrants to which the Notice of Exercise
delivered by you relates would be made on a timely basis, as set forth
in the Warrant Agreement, dated as of ________, 1994, among The Bear
Stearns Companies, Inc., Chemical Bank, as Warrant Agent, and Bear,
Stearns & Co. Inc.]. Accordingly, we have rejected your Notice of
Exercise being unsatisfactory as to form.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_________________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT C-1
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by Warrant Certificates
We refer to your Notice of Exercise dated , 19 , with
respect toWarrants that were subject to the Limit Option. The
applicable Reference Index for such Warrants isand the Spot Index for
the date that would otherwise be the Valuation Date for such Warrants
is . Such Spot Index is higher than the Reference Index
on the Exercise Date (or if such date was not an Index Calculation
Date, on the Index Calculation Date prior to the Exercise Date for
such Warrants) by 5% or more. Accordingly, we have rejected such
Notice of Exercise pursuant to the Limit Option.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Warrant Agreement dated as of __________,1994,
among The Bear Stearns Companies Inc., Chemical Bank and Bear, Stearns
& Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
<PAGE>
<PAGE>
EXHIBIT C-2
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by the Global Warrant Certificate
Name of Depository Participant:
Name of Euroclear Participant:
Name of CEDEL Participant:
Address:
Witness:
We refer to your Notice of Exercise dated ,
19 , with respect to Warrants that were subject to the Limit Option.
The applicable Reference Index for such Warrants is and
the Spot Index for the date that would otherwise be the Valuation Date
for such Warrants is . Such Spot Index is higher than the Reference
Index on the Exercise Date (or if such date was not an Index
Calculation Date, on the Index Calculation Date prior to the Exercise
Date for such Warrants) by 5% or more. Accordingly, we have rejected
such Notice of Exercise pursuant to the Limit Option.
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement dated as of
____________, 1994, among The Bear Stearns Companies Inc., Chemical
Bank and Bear, Stearns & Co. Inc.
Dated: , 19
CHEMICAL BANK, as Warrant
Agent
By_______________________
Authorized Signature
