Exhibit 4.5


 


FIRST SUPPLEMENTAL WARRANT AGREEMENT


 


FIRST SUPPLEMENTAL WARRANT AGREEMENT (this “Supplemental Warrant
Agreement”) dated as of March 3, 2006, among NTL
Incorporated, a Delaware corporation formerly known as Telewest Global, Inc.
(“New NTL”), NTL Holdings Inc., a
Delaware corporation formerly known as NTL Incorporated (“Old NTL”), The Bank of New York, a New York banking
corporation, as the successor Warrant Agent (the “Warrant Agent”) and
Continental Stock Transfer and Trust Company, a New York banking corporation
(the “Original Warrant Agent”).


 


WHEREAS, Old
NTL and the Original Warrant Agent entered into a Series A Warrant
Agreement on January 10, 2003 (the “Warrant Agreement”), providing for the
issuance of a maximum of 12,500,000 warrants (the “Warrants”) to purchase
shares of common stock of Old NTL;


 


WHEREAS, Section 12(h)(2) of
the Warrant Agreement provides that, in the event of a merger of another person
with Old NTL, each Warrant would automatically become exercisable for the kind
and amount of stock, securities or other property or assets which the holder
would have owned had the Warrant been exercised immediately prior to such
merger;


 


WHEREAS,
pursuant to an Amended and Restated Agreement and Plan of Merger, dated as of December 14,
2005, among New NTL, Old NTL, Neptune Bridge Borrower LLC, a Delaware limited
liability company (“Merger Sub”) and a wholly-owned subsidiary of New NTL, and
Merger Sub Inc., a Delaware limited liability company and a wholly-owned
subsidiary of Old NTL, as amended by Amendment No.1 to Amended and Restated
Agreement and Plan of Merger dated as of January 30, 2006, Merger Sub has
merged (the “Merger”) with and into Old NTL and, in connection therewith, each
Warrant automatically became exercisable for 2.94645 shares of common stock of
New NTL in accordance with section 12(h)(2) of the Warrant Agreement;


 


WHEREAS, in
connection with the Merger, Old NTL changed its name from NTL Incorporated to
NTL Holdings Inc. pursuant to an amendment to its certificate of incorporation
and New NTL changed its name from Telewest Global, Inc. to NTL
Incorporated pursuant to a certificate of ownership and merger filed with the
Secretary of State of the State of Delaware;


 


WHEREAS, New
NTL desires by this Supplemental Warrant Agreement to expressly, irrevocably
and unconditionally assume the covenants, agreements, obligations and
undertakings of Old NTL under the Warrant Agreement and the Warrants;


 


WHEREAS, the
Warrant Agent desires by this Supplemental Warrant Agreement to expressly,
irrevocably and unconditionally assume the covenants, agreements, obligations
and undertakings of the Original Warrant Agent under the Warrant Agreement, and
the Original Warrant Agent desires to resign and be discharged from its
obligations as the warrant agent under the Warrant Agreement; and


 


WHEREAS, all
conditions and requirements necessary to make this Supplemental Warrant
Agreement a valid legal instrument binding upon New NTL and the Warrant Agent
in 


 

















 


accordance with its terms have been performed and fulfilled by the
applicable parties hereto, and the execution and delivery hereof have been in
all respects duly authorized by the applicable parties hereto;


 


NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, each party agrees, for the benefit
of the others and for the equal and ratable benefit of the holders of the
Warrants as follows:


 


Section 1. Definitions.
For all purposes of this Supplemental Warrant Agreement, except as otherwise
herein expressly provided or unless the context otherwise requires, the terms
and expressions used herein shall have the same meanings as corresponding terms
and expressions used in the Warrant Agreement.


 


Section 2. Notice to Holders. New
NTL hereby agrees to mail the holders of the Warrants a notice describing this
Supplemental Warrant Agreement in accordance with section 12(h)(2)(c) of
the Warrant Agreement.


 


Section 3. Assumption of
Obligations of Old NTL. New NTL hereby expressly, irrevocably and
unconditionally assumes each and every covenant, agreement, obligation and
undertaking of Old NTL in the Warrant Agreement as if New NTL had been named
the Company in the Warrant Agreement and the original issuer of the Warrants, and
also hereby expressly, irrevocably and unconditionally assumes each and every
covenant, agreement, obligation and undertaking of Old NTL in each Warrant
outstanding on the date of this Supplemental Warrant Agreement.


 


Section 4. Resignation of the
Original Warrant Agent. The Original Warrant Agent hereby resigns
and is discharged from the obligations created by the Warrant Agreement. The
Original Warrant Agent and Old NTL hereby waive notice of such resignation.


 


Section 5. Assumption of
Obilgations  of the Original
Warrant Agent. The Warrant Agent hereby expressly, irrevocably and
unconditionally assumes each and every covenant, agreement, obligation and
undertaking of the Original Warrant Agent in the Warrant Agreement as if the
Warrant Agent had been named the Warrant Agent in the Warrant Agreement.


 


Section 6. Further Assurances.
New NTL hereby agrees, from time to time, to do and perform any and all
acts and to execute any and all further instruments reasonably necessary to
more fully effect the purposes of this Supplemental Warrant Agreement and the
Warrant Agreement.


 


Section 7. Adjustment.
In accordance with the provisions of Section 12(h)(2) of the Warrant
Agreement, concurrent with the effective time of the Merger, each Warrant
automatically becomes exercisable for 2.94645 shares of common stock of New NTL
at the Exercise Price of $105.17 per share.


 


Section 8. Effect of
Supplemental Warrant Agreement. Upon the execution and delivery of
this Supplemental Warrant Agreement by New NTL, Old NTL and the Warrant Agent,
the Warrant Agreement shall be supplemented in accordance herewith, and this
Supplemental Warrant Agreement shall form a part of the Warrant
Agreement for all purposes, and every 


 

















 


holder of a Warrant heretofore or hereafter countersigned and delivered
under the Warrant Agreement shall be bound hereby.


 


Section 9. Warrant Certificates.
The registered holder of a Warrant Certificate may request New
NTL to exchange his or her Warrant Certificate for a warrant certificate
substantially in the form set forth in Exhibit A attached hereto (a “New
Warrant Certificate”), and New NTL may issue New Warrant Certificates in
its sole discretion.


 


Section 10. Warrant Agreement
Remains in Full Force and Effect. Except as expressly amended and
supplemented hereby, the Warrant Agreement is in all respects ratified and
confirmed and all terms, conditions and provisions of the Warrant Agreement
shall remain in full force and effect.


 


Section 11.
Warrant Agreement and Supplemental Warrant
Agreement Construed Together. This Supplemental Warrant Agreement is
a warrant agreement supplemental to and in implementation of the Warrant
Agreement, and the Warrant Agreement and this Supplemental Warrant Agreement
shall be read and construed together.


 


Section 12.
Notices to New NTL and the Warrant Agent. Any
notice or demand authorized or permitted by the Warrant Agreement to be given
or made by the Warrant Agent or by the registered holder of any Warrant
Certificate to or on New NTL shall be sufficiently given or made when and if
deposited in the mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by New NTL with the
Warrant Agent), as follows:


 


NTL Incorporated


909 Third Avenue, Suite 2863


New York, New York 10022


United States of America


Attention: General Counsel


 


With a copy to:


 


NTL Incorporated


Bartley Wood Business Park


Bartley Way


Hook, Hampshire


RG27 9UP


United Kingdom


Attention: General Counsel


Facsimile No.: +44 1256 752
100


 


Any
notice pursuant to this Supplemental Warrant Agreement or the Warrant Agreement
to be given by New NTL or by the registered holder(s) of any Warrant
Certificate to the Warrant Agent shall be sufficiently given when and if
deposited in the mail, first-class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
New NTL) to the Warrant Agent at the Warrant Agent Office as follows:


 

















 


The Bank of New York


101 Barclay Street, Floor 11E


New York, New York  10286


United States of America


Facsimile No. +1 212 815 6979


Attention: Stock Transfer Administration


 


Section 13.
Successors. All the covenants and
provisions of this Supplemental Warrant Agreement by or for the benefit of New
NTL or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.


 


Section 14.
Governing Law; Jurisdiction. This
Supplemental Warrant Agreement shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the internal laws of said state. The parties
hereto irrevocably consent to the jurisdiction of the courts of the state of
New York and any federal court located in such state in connection with any
action, suit or proceeding arising out of or relating to this Supplemental
Warrant Agreement. Each of the parties hereto also irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim arising out of this
Agreement or the transactions contemplated hereby.


 


Section 15. Benefits of
Supplemental Warrant Agreement. Nothing in this Supplemental Warrant
Agreement shall be construed to give to any person other than New NTL, Old NTL,
the Warrant Agent, the Original Warrant Agent and the registered holders of the
Warrant Certificates any legal or equitable right, remedy or claim under this
Supplemental Warrant Agreement; but this Supplemental Warrant Agreement shall
be for the sole and exclusive benefit of New NTL, Old NTL, the Warrant Agent,
the Original Warrant Agent and the registered holders of the Warrant
Certificates.


 


Section 16.
Counterparts. This Supplemental
Warrant Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.


 


Section 17.
Certain Duties and Responsibilities of
Warrant Agent. In entering into this Supplemental Warrant Agreement,
the Warrant Agent shall be entitled to the benefit of every provision of the
Warrant Agreement relating to the conduct or affecting the liability of or
affording protection to the Warrant Agent, whether or not elsewhere herein so
provided. The Warrant Agent shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Warrant
Agreement.


 


Section 18.
Certain  Amendments  to the Warrant Agreement.


 


(a)                                  Section 1 of the
Warrant Agreement is hereby amended by inserting the following at the end of
the first sentence thereof:


 


“The Company may from
time to time appoint such Co-Warrant Agents as is may deem necessary or
desirable upon ten (10) days’ prior written notice to the Warrant Agent. The



 

















 


Warrant Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such Co-Warrant Agent.”


 


(b)                                 Section 17 of the
Warrant Agreement is hereby amended by inserting the following immediately
preceding the word “upon” in the first sentence thereof: “(and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent)”.


 


(c)                                  Section 17(c) of
the Warrant Agreement is hereby amended by inserting the following:


 


“The Warrant
Agent may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Warrant Agent shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder”.


 


(d)                                 Section 17(d) of
the Warrant Agreement is hereby amended by (i) inserting the following at
the beginning of such subsection:


 


“The Warrant
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Warrant Agent and conforming to the requirements of this
Agreement.”;


 


and  (ii) inserting the following between “instrument”
and “believed”:  “(whether in its
original or facsimile form)”.


 


(e)                                  Section 17(e) of
the Warrant Agreement is hereby amended in its entirety to read as follows:


 


“(e)                            The
Company agrees to pay to the Warrant Agent such compensation for all services
rendered by the Warrant Agent in the administration and execution of this
Agreement as the Company and the Warrant Agent shall agree in writing to
reimburse the Warrant Agent for all expenses, taxes and governmental charges
and other charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement (including fees and expenses of its counsel) and to
indemnify the Warrant Agent (and any predecessor Warrant Agent) and save it
harmless against any and all claims (whether asserted by the Company, a holder
or any other person), damages, losses, expenses (including taxes other than
taxes based on the income of the Warrant Agent), liabilities, including
judgments, costs and counsel fees and expenses, for anything done or omitted by
the Warrant Agent in the execution of this Agreement except as a result of its
gross negligence or willful misconduct. The provisions of this Section 17(e) shall
survive the expiration of the Warrants and the termination of this Agreement.”


 


(f)                                    Section 17(h) of
the Warrant Agreement is hereby amended in its entirety to read as follows:


 


“(h)                           The
Warrant Agent shall act hereunder solely as agent for the Company, and its
duties shall be determined solely by the provisions hereof. The Warrant Agent
shall not 


 

















 


be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own gross negligence or willful
misconduct. The Warrant Agent shall not be liable for any error of judgment
made in good faith by it, unless it shall be proved that the Warrant Agent was
grossly negligent in ascertaining the pertinent facts. Notwithstanding anything
in this Agreement to the contrary, in no event shall the Warrant Agent be
liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the
Warrant Agent has been advised of the likelihood of the loss or damage and
regardless of the form of the action.”


 


(g)                                 The
Warrant Agreement is hereby amended by adding the following new subsections to Section 17:


 


“(j)                               Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Warrant
Agent shall have any liability to any holder of a Warrant Certificate or other
Person as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority prohibiting or otherwise restraining performance of such
obligation; provided that the Company must use its
reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.


 


(k)                                  Any
application by the Warrant Agent for written instructions from the Company may,
at the option of the Warrant Agent, set forth in writing any action proposed to
be taken or omitted by the Warrant Agent under this Agreement and the date on
and/or after which such action shall be taken or such omission shall be
effective. The Warrant Agent shall not be liable for any action taken by, or
omission of, the Warrant Agent in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Warrant Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.


 


(l)                                     No
provision of this Agreement shall require the Warrant Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of its rights.


 


(m)                               In
addition to the foregoing, the Warrant Agent shall be protected and shall incur
no liability for, or in respect of, any action taken or omitted by it in
connection with its administration of this Agreement if such acts or omissions
are in reliance upon (i) the proper execution of the certification
concerning beneficial ownership appended to the form of assignment and the
form of the election attached hereto unless the Warrant Agent shall have
actual knowledge that, as executed, such certification is untrue, or (ii) the
non-execution of such certification including, without limitation, any refusal
to honor any otherwise permissible assignment or election by reason of such
non-execution.


 

















 


(n)                                 The
Company acknowledges that the Warrant Agent is subject to the customer
identification program requirements under the USA PATRIOT Act and its
implementing regulations, and that the Warrant Agent must obtain, verify and
record information that allows the Warrant Agent to identify the Company. Accordingly,
prior to opening an account hereunder the Warrant Agent may request
information (including but not limited to the Company’s name, physical address,
tax identification number and other information) that will help the Warrant
Agent to identify the organization such as organizational documents,
certificate of good standing, license to do business, or any other information
that will allow the Warrant Agent to identify the Company. The Company agrees
that the Warrant Agent cannot open an account hereunder unless and until the
Warrant Agent verifies the Company’s identity in accordance with its customer
identification program.”


 


(h)                                 Section 21
of the Warrant Agreement is hereby amended by adding the following after the
first sentence thereof:


 


“Upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the
terms of this Section 21, the Warrant Agent shall execute such supplement
or amendment. Notwithstanding anything in this Agreement to the contrary, the
prior written consent of the Warrant Agent must be obtained in connection with
any supplement or amendment which alters the rights or duties of the Warrant
Agent.”


 


(i)                                     Section 24
of the Warrant Agreement is hereby amended by adding the following immediately
after the second sentence thereof:


 


“Each of the
parties hereto also irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of this Agreement or the
transactions contemplated hereby.”


 


(j)                                     The
Warrant Agreement is hereby amended by adding the following new Section 28
thereto:


 


“SECTION 28. Force Majeure. In no event shall the Warrant
Agent be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software
or hardware) services.”


 

















 


IN WITNESS
WHEREOF, the parties have caused this Supplemental Warrant Agreement to be duly
executed as of the date first written above.


 


	
   

  	
   

  	
  NTL
  INCORPORATED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Bryan Hall

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Bryan
  Hall

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NTL
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Bryan Hall

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Bryan
  Hall

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  BANK OF NEW YORK

  
	
   

  	
   

  	
   

  	
  as
  Warrant Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kerri Shenkin

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kerri
  Shenkin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CONTINENTAL
  STOCK TRANSFER & TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  William Seegraber

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  	
  William
  Seegraber

  
	
   

  	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  
									



 

















 


EXHIBIT A to the


First Supplemental Warrant
Agreement


 


Form of Warrant Certificate
[Face of Warrant Certificate]
 
EXERCISABLE ON OR AFTER THE DATE OF THIS CERTIFICATE AND
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON JANUARY 10, 2011 AND
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT
 
NTL INCORPORATED
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
 
No. NIW                                                                                                                                                                    CUSIP No. 62941W 11 9                                                                                                                                    Warrants
 
SERIES A WARRANTS
 
This certifies that                                                   , or registered assigns, is the registered holder of                        Series A warrants (the “Warrants”), to purchase shares of common stock, par value $0.01 per share, together with associated preferred stock purchase rights (the “Common Stock”), of NTL Incorporated, a Delaware corporation (the “Company”). Each Warrant entitles the holder upon exercise at any time on or after the date of this Warrant Certificate and prior to 5:00 p.m., New York City Time, on January 10, 2011 to receive from the Company 2.94645 fully paid and nonassessable shares of Common Stock (each a “Warrant Share”) for each Warrant at the initial exercise price (the “Exercise Price”) of $105.17 per share payable (i) in United States dollars or (ii) by certified or official bank check for United States Dollars made payable to the order of “NTL Incorporated”. In lieu of payment of the aggregate Exercise Price as aforesaid and subject to applicable law, the holder of a Warrant may request the payment by the Company of the “Spread”, which shall, subject to Section 14 of the Series A Warrant Agreement, dated as of January 10, 2003, by and between NTL Incorporated and Continental Stock Transfer & Trust Company, as Warrant Agent, as supplemented by the First Supplemental Warrant Agreement, dated as of March 3, 2006 among the Company, NTL Holdings Inc., Continental Stock Transfer and Trust Company and The Bank of New York, as Warrant Agent (the “Warrant Agreement”), be delivered by the Company by delivering to such Warrant holder a number of shares of Common Stock equal to (a)(i) the product of (x) the current market price per share of Common Stock (as of the date of receipt of the request to the Company), multiplied by (y) the number of Warrant Shares underlying the Warrants being exercised, minus (ii) the product of (x) the Exercise Price, multiplied by (y) the number of Warrant Shares underlying the Warrants being exercised, divided by (b) the current market price per share of Common Stock (as of the date of receipt of the request to the Company). The Exercise Price and number of Warrant Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. No Warrant may be exercised after 5:00 p.m., New York City Time, on January 10, 2011, and to the extent not exercised by such time such Warrants shall become void. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. Reference is made to the further provisions of this Warrant Certificate set forth on 


 

















 


the reverse hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall be governed and construed in accordance with the internal laws of the State of New York.
 
IN WITNESS WHEREOF, NTL Incorporated has caused this Warrant Certificate to be signed by the undersigned President and the undersigned Secretary of the Company and has caused its corporate seal to be imprinted hereon.
 


Dated:

NTL Incorporated


[Corporate
Seal]


 


	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  President

  	
  Secretary

  
	
   

  	
   

  
	
  Countersigned:
  

  	
   

  
	
  [                                 ]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized
  Officer

  	
   

  



 















 
[Reverse of Warrant Certificate]
 
NTL INCORPORATED (SERIES A WARRANT)
 
By accepting a Warrant Certificate, each holder shall be bound by all of the terms and provisions of the Warrant Agreement (a copy of which is available on request to the Secretary of the Company) and any amendments thereto as fully and effectively as if such holder had signed the same.
 
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants by the Company expiring at 5:00 p.m., New York City Time, on January 10, 2011, entitling the holder upon proper exercise to receive shares of Common Stock and are issued or to be issued pursuant to the Warrant Agreement, which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the registered holders or registered holder) of the Warrants.
 
The holder of the Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth below on this Warrant Certificate properly completed and executed, together with payment of the aggregate Exercise Price in accordance with the provisions set forth on the face of this Warrant Certificate. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised.
 
The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price and the number of shares of Common Stock issuable upon exercise of this Warrant, in each case, set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that the number of shares of Common Stock issuable upon the exercise of each Warrant may be adjusted. No fractions of a share of Common Stock will be issued upon the exercise of any Warrant, but the Company will pay the cash value in lieu thereof determined as provided in the Warrant Agreement.
 
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
 
Upon due presentation for registration of transfer of this Warrant Certificate at the principal corporate trust office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be 


 

















 


issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
 
The Company and the Warrant Agent may deem and treat the registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.
 
The Warrant Agreement permits, with certain exceptions therein provided, the supplementing or amendment thereof at any time by the Company and the Warrant Agent with the written consent of registered holders of a majority of the then outstanding Warrants (excluding Warrants held by the Company or any of its controlled affiliates). Any such consent by or on behalf of a holder of a Warrant shall be conclusive and binding upon such holder and upon all future holders of this Warrant and any Warrant issued upon the registration of transfer thereof or in exchange thereof whether or not notation of such consent is made upon such Warrant or any other Warrant.
 
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE ACCOMPANIED BY CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT (THE “RIGHTS AGREEMENT”) BY AND BETWEEN THE COMPANY AND THE BANK OF NEW YORK (THE “RIGHTS AGENT”), THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY. THE COMPANY WILL MAIL TO THE HOLDER OF THIS WARRANT CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN EFFECT ON THE DATE OF MAILING, WITHOUT CHARGE, PROMPTLY AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR TO THE SECRETARY OF THE COMPANY. UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.