NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THIS WARRANT AGREEMENT AND
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE APPLICABLE,
THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on November 15, 2000
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXX XXXXX, INC.
WARRANT dated and effective as of November 15, 1995, by and
between XXXXXXX XXXXX, INC. (the "Company"), a New York corporation with
offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXXXXX XXXXX (the
"Warrantholder"), an individual residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
FOR VALUE RECEIVED, the Company hereby certifies that the
Warrantholder is entitled to purchase from the Company, at any time or from
time to time commencing November 15, 1995, and prior to 5:00 P.M., Eastern
Standard Time, on November 15, 2000, 815,000 fully paid and nonassessable
shares of Common Stock, par value $0.01 per share, of the Company, at $4.05
per share for an aggregate purchase price of $3,300,750. Hereinafter, (i) said
Common Stock, together with any other equity securities which may be issued by
the Company with respect thereto or in substitution therefor, is referred to
as the "Common Stock," (ii) the shares of the Common Stock purchasable
hereunder are referred to as the "Warrant Shares," (iii) the aggregate
purchase price payable hereunder for the Warrant Shares is referred to as the
"Aggregate Warrant Price," (iv) the price payable hereunder for each of the
Warrant Shares is referred to as the "Per Share Warrant Price," and (v) this
Warrant, and all warrants hereafter issued in exchange or substitution for
this Warrant are referred to as the "Warrant." The number of Warrant Shares
for which
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this Warrant is exercisable is subject to adjustment as hereinafter provided.
1. This Warrant may be exercised, in whole at any time or in
part from time to time, commencing November 15, 1995, and prior to 5:00 P.M.,
Eastern Standard Time, on November 15, 2000, by the Warrantholder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) at the address of the Company set forth on the first page hereof,
evidencing proper payment of the Aggregate Warrant Price, or the proportionate
part thereof if this Warrant is exercised in part.
2. The issuance of this Warrant was approved by, and the Per
Share Warrant Price of $4.05 was determined by, the Special Committee of the
Company's Board of Directors on May 18, 1995 (the "Committee Approval Date"),
subject to approval of the Company's shareholders. The Company's shareholders
approved the issuance of this Warrant on November 15, 1995. The Per Share
Warrant Price represents a 20% premium over the closing price of the Common
Stock on the New York Stock Exchange on the date immediately preceding the
Committee Approval Date.
3. In no event shall this Warrant be converted, and this
Warrant shall no longer be exercisable, at any time after five years from the
date hereof. Any conversion of this Warrant may be either in whole at any time
or in part at any time or from time to time.
4. Neither the Warrantholder nor the Warrantholder's legal
representatives, legatees, distributees, or, successors or assigns shall be or
be deemed to be the holder of any shares of the Common Stock covered by this
Warrant unless and until certificates for such shares have been issued. Upon
payment of the purchase price thereof, shares issued upon conversion of this
Warrant shall be validly issued, fully paid and nonassessable.
5. In order to exercise this Warrant, the Warrantholder
shall give a signed written notice of intent to exercise this Warrant to the
Treasurer of the Company specifying the number of shares of the Common Stock
with respect to which this Warrant is being exercised, and accompanied by
payment to the Company of the full amount of the Aggregate Warrant Price for
the number of shares of Common Stock so specified. If permitted under
applicable securities laws, all or any portion of such payment may be made
through a "cashless exercise" arrangement with a broker designated by the
Warrantholder by delivery of shares of Common Stock having a fair market value
(as hereinafter determined) on the date of delivery equal to the portion of
the Aggregate Warrant Price so paid; provided, that in connection therewith,
the Warrantholder shall, as applicable, certify to the Company that such
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delivery will not result in "short-swing" profit to the Warrantholder under
Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder ("Section 16").
For the purposes hereof, the fair market value of a share of the
Common Stock on any date shall be equal to the closing sale price of a share
of the Common Stock as published by the national securities exchange on which
the shares of the Common Stock are primarily traded on such date or, if there
is no such sale of the Common Stock on such date, the average of the bid and
asked price on such exchange at the close of trading on such date or, if the
shares of the Common Stock are not listed on a national securities exchange on
such date, the average of the bid and asked prices in the over the counter
market on such date or, if the Common Stock is not traded on a national
securities exchange or the over-the-counter market, the fair market value of a
share of the Common Stock on such date as shall be determined in good faith by
the Company.
6. (a) In the event of the death of the Warrantholder, an
additional condition of exercising the Warrant shall be the delivery to the
Company of such tax waivers and other documents as the Company shall
reasonably determine. The executors, administrators, legal representatives,
distributees and legatees of the Warrantholder are, after the death of the
Warrantholder, referred to as the Warrantholder with respect to this Warrant.
(b) The Warrantholder shall, as an additional condition of
converting this Warrant, make appropriate arrangements with the Company for
the payment of all federal, state or local withholding taxes applicable as a
result of the exercise of this Warrant. If permitted under applicable
securities laws, all or any portion of such payment may be made through a
"cashless exercise" arrangement with a broker designated by the Warrantholder
by delivery of shares of Common Stock having a fair market value (as
determined pursuant to paragraph 5 hereof) on the date of delivery equal to
the portion of such taxes so paid; provided, that, as applicable, in
connection therewith the Warrantholder shall certify to the Company that such
delivery will not result in "short-swing" profit to the Warrantholder under
Section 16.
The Company covenants and agrees that it will pay, when due and
payable, any and all Federal and state stamp, original issue or similar taxes
that may be payable in respect of the issue of any Warrant Shares or
certificates therefor.
7. The Company agrees that, prior to the expiration of this
Warrant, the Company will at all times have authorized and in reserve, and
will keep available, solely for issuance or delivery upon the exercise of this
Warrant, the shares of the Common Stock as from time to time shall be
receivable upon the exercise of this Warrant.
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8. (a) Neither this Warrant nor the Warrant Shares issuable
upon the exercise hereof have been registered under the Securities Act of
1933, as amended (the "Act"), or under any state securities laws and unless so
registered may not be transferred, sold, pledged, hypothecated or otherwise
disposed of (any of the foregoing, a "transfer") unless an exemption from such
registration is available. In the event the Warrantholder desires to transfer
this Warrant or any of the Warrant Shares issued, the Warrantholder must give
the Company prior written notice of such proposed transfer including the name
and address of the proposed transferee. Such transfer may be made only (i)
upon publication by the Securities and Exchange Commission (the "Commission")
of a ruling, interpretation, opinion or "no action letter" based upon facts
presented to said Commission, or (ii) upon receipt by the Company of an
opinion of counsel to the Company to the effect that (A) the proposed transfer
will not violate the provisions of the Act or the rules and regulations
promulgated thereunder or (B) the Warrant or Warrant Shares to be transferred
have been registered under the Act and there is in effect a current prospectus
meeting the requirements of subsection 10(a) of the Act, which is being or
will be delivered to the transferee at or prior to the time of delivery of the
certificates evidencing the Warrant or Warrant Shares to be transferred. Upon
request of the Warrantholder, the Company will use its reasonable efforts to
register the Warrants under the Act, at the Company's expense. Any transferee
of this Warrant or the Warrant Shares issuable upon the exercise hereof is
referred to as the Warrantholder with respect to this Warrant.
(b) Prior to any such proposed transfer, and as a condition
thereto, if such transfer is not made pursuant to an effective registration
statement under the Act, the Warrantholder will, if requested by the Company,
deliver to the Company (i) an investment covenant signed by the proposed
transferee, (ii) an agreement by such transferee to the restrictive investment
legend set forth herein on the certificate or certificates representing the
shares acquired by such transferee, (iii) an agreement by such transferee that
the Company may place a "stop transfer order" with its transfer agent or
registrar, and (iv) an agreement by the transferee to indemnify the Company to
the same extent as set forth in subparagraph (c) below.
(c) The Warrantholder acknowledges that the Warrantholder
understands the meaning and legal consequences of this paragraph 8, and the
Warrantholder hereby agrees to indemnify and hold harmless the Company, its
representatives and each officer and director thereof from and against any and
all loss, damage or liability (including all attorneys' fees and costs
incurred in enforcing this indemnity provision) due to or arising out of (i)
the inaccuracy of any representation or the breach of any warranty of the
Warrantholder contained in, or any other breach by the Warrantholder of, this
Warrant, (ii) any transfer of the Warrant or any of the
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Warrant Shares in violation of the Act, the Exchange Act, or the rules and
regulations promulgated under either such act, or (iii) any untrue statement
or omission to state any material fact in connection with the investment
representations or with respect to the facts and representations supplied by
the Warrantholder to counsel to the Company upon which its opinion as to a
proposed transfer shall have been based.
(d) Upon surrender of this Warrant to the Company or at the
office of its transfer agent, with assignment documentation duly executed and
funds sufficient to pay any transfer tax, and upon compliance with the
foregoing provisions, the Company shall, without charge, execute and deliver a
new Warrant in the name of the transferee named in such instrument of
transfer, and this Warrant shall promptly be cancelled. Any transfer of this
Warrant attempted contrary to the provisions of this Warrant, or any levy of
execution, attachment or other process attempted upon the Warrant, shall be
null and void and without effect.
(e) Unless the Warrant Shares have been registered under the
Act, upon exercise of any part of the Warrant and the issuance of any of the
Warrant Shares, the Company shall instruct its transfer agent to enter stop
transfer orders with respect to such Warrant Shares, and all certificates
representing Warrant Shares shall bear on the face thereof substantially the
following legend, insofar as is consistent with New York law:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and may
not be sold, offered for sale, assigned, transferred or otherwise
disposed of unless registered pursuant to the provisions of that Act
or an opinion of counsel to the Company is obtained stating that such
disposition is in compliance with an available exemption from such
registration."
9. In the event that a dividend shall be declared upon the
Common Stock payable in shares of the Common Stock, the Warrant Shares shall
be adjusted by adding to each such share the number of shares which would be
distributable thereon if such shares had been outstanding on the date fixed
for determining the shareholders entitled to receive such stock dividend. In
the event that the outstanding shares of the Common Stock shall be changed
into or exchanged for a different number or kind of shares of stock and/or
other securities of the Company or of another corporation or cash or other
property, whether through reorganization, recapitalization, extraordinary
dividend, stock split-up, combination of shares, sale of assets, spin off or
merger or consolidation in which the Company is the surviving corporation,
then, there shall be substituted for each Warrant Share the number and kind of
shares of stock and/or other securities, cash or other property into which
each outstanding share of the Common Stock shall be so changed or for which
each such share shall be
-5-
exchanged. In the event that there shall be any change, other than as
specified in this paragraph 9, in the number or kind of outstanding shares of
the Common Stock, or of any stock or other securities into which the Common
Stock shall have been changed, or for which it shall have been exchanged, then
the Board of Directors of Company shall, in its reasonable discretion,
equitably adjust this Warrant with respect to the number or kind of Warrant
Shares and the Warrant Price, such adjustment to be made by the Company and
notice thereof shall be delivered to the Warrantholder within 30 calendar days
thereafter, accompanied by a certificate of the Chief Financial Officer of the
Company setting forth such adjustment, the method of calculation of such
adjustment and the facts upon which such adjustment was based, all in
reasonable detail. In the case of any such substitution or adjustment as
provided for in this paragraph 9, the Warrant Price for each Warrant Share
shall be the Warrant Price for all shares of stock or other securities which
shall have been substituted for such Warrant Share or to which such shares
shall have been adjusted in accordance with the provisions in this paragraph
9. No adjustment or substitution provided for in this paragraph 9 shall
require the Company to sell a fractional share hereunder. Notwithstanding the
foregoing, the issuance by the Company of additional shares of Common Stock
(or securities convertible into shares of Common Stock), for fair
consideration (which need not be cash), as determined by the Board of
Directors of the Company in good faith, shall not give rise to any equitable
adjustment of this Warrant pursuant to this paragraph 9.
10. The existence of this Warrant shall not affect in any
way the right or power of the Company or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other corporate act or
proceeding whether of a similar character or otherwise.
11. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant if mutilated, the Company shall
execute and deliver to the Warrantholder a new Warrant of like date, tenor and
denomination.
13. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt
-6-
requested, or delivered against receipt to the party to whom it is to be given
at the address of such party set forth in the preamble to this Warrant (or to
such other address as the party shall have furnished in writing in accordance
with the provisions of this paragraph 13). Notice to the estate of the
Warrantholder shall be sufficient if addressed to the Warrantholder as
provided in this paragraph 13. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
14. The provisions of this Warrant shall be binding upon and
inure to the benefit of the Warrantholder and the Warrantholder's heirs,
personal representatives, successors and assigns under this Warrant.
15. This Warrant does not create, and shall not be construed
as creating, any rights enforceable by any person not a party to this Warrant
(except as expressly provided in this Warrant).
IN WITNESS WHEREOF, XXXXXXX XXXXX, INC. has caused this
Warrant to be signed by a duly authorized officer the day and year first above
written.
ATTEST: XXXXXXX XXXXX, INC.
\s\ Xxxxx X. Xxxxxxx By: \s\ Xxxxx X. Xxxxxx
----------------------- ---------------------------
Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Vice President - Corporate Title: Executive Vice President -
Controller Finance and Administration,
Chief Financial Officer and
Secretary
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SUBSCRIPTION
The undersigned, ____________________________ , pursuant to
the provisions of the foregoing Warrant, hereby agrees to subscribe for the
purchase of _________ shares of the Common Stock of XXXXXXX XXXXX, INC. covered
by said Warrant, and makes payment therefor in full at the price per share
provided by said Warrant.
Dated ____________ Signature__________________
Address __________________
__________________
ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby sells,
assigns and transfers unto _______________________________________ the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _______________________, attorney, to transfer said
Warrant on the books of XXXXXXX XXXXX, INC.
Dated ______________________ Signature__________________________
Address____________________________
____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells,
assigns and transfers unto _______________________ the right to purchase
_____________________ shares of the Common Stock of XXXXXXX XXXXX, INC. by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced hereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of XXXXXXX XXXXX, INC.
Dated___________________ Signature_________________________
Address___________________________
___________________________
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