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Exhibit 4.5
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WARRANT AGREEMENT
BETWEEN
THE HORN & HARDART COMPANY
AND
INTERCONTINENTAL MINING & RESOURCES LIMITED
--------------------------
Dated as of July 8, 1991
For 1,750,000 Shares
of Common Stock
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WARRANT AGREEMENT (the "Agreement") dated as of July 8, 1991,
between THE HORN & HARDART COMPANY, a Nevada corporation (the "Company"), and
INTERCONTINENTAL MINING & RESOURCES LIMITED, a Delaware corporation ("IMR").
WHEREAS, IMR has agreed to extend credit to Hanover Direct, Inc., a
Pennsylvania corporation, Ring Response, Ltd., an Illinois corporation, and
Brawn of California, Inc., a California corporation, each a wholly-owned
indirect subsidiary of the Company, pursuant to the Credit Agreement, dated as
of July 8, 1991 (the "Credit Agreement"); and
WHEREAS, as an inducement to IMR to enter into the Credit Agreement and
extend credit thereunder, the Company proposes to issue to IMR warrants as
hereinafter defined (the "Warrants") to purchase up to an aggregate of 1,750,000
shares (the "Warrant Shares") of the Company's Common Stock, par value $0.66
2/3% per share (the "Common Stock"), each Warrant entitling the holder thereof
to purchase one share of common Stock for an exercise price of $5.25, or such
other price as is established pursuant to the terms hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant Certificate. Concurrently
with the execution of this Agreement, the Company will issue and deliver the
Warrants to IMR. The number of Warrants to be issued and delivered shall be
equal to 1,750,000. The text of the Warrant Certificate (the "Warrant
Certificate") and the form of election to purchase Warrant Shares to be printed
on the reverse thereof shall be as set forth in Annex A attached hereto. The
Warrant Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the Chairman of the Board, President or Vice President of
the Company, under its corporate seal, affixed or in facsimile, attested to by
the manual or facsimile signature of the Secretary or an Assistant Secretary of
the Company.
The Warrant Certificate and any later certificate issued upon
division, exchange, substitution or transfer thereof (collectively,
"Certificates"), bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any one of them shall have ceased to
hold such offices prior to the delivery of such Warrants or did not hold such
offices on the date of this Agreement.
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Certificates shall be dated as of the date of execution thereof by
the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
2. Registration. The Warrants shall be numbered and shall be
registered in a Warrant Register as they are issued. The Company shall be
entitled to treat the registered holder of any Certificate on the Warrant
Register (the "Holder") as the owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in such
Certificate on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of the fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith. The Warrants shall be registered
initially in the name of "Intercontinental Mining & Resources Limited."
3. Exchange of Warrant Certificates. Subject to any restriction upon
transfer set forth in this Agreement, each Certificate may be exchanged for
another Certificate or Certificates entitling the Holder thereof to purchase a
like aggregate number of Warrant Shares as the Certificate or Certificates
surrendered then entitle such Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Warrant Certificates shall make such request
in writing delivered to the Company, and shall surrender, properly endorsed, the
Warrant Certificate or Warrant Certificates to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new Warrant
Certificate or Warrant Certificates, as the case may be, as so requested. The
Company may require payment by a Holder requesting such exchange of a sum
sufficient to cover any tax or other governmental charge that may be imposed
therewith.
4. Transfer of Warrants and Warrant Shares.
(a) The Warrants will not be transferable except to affiliates of
IMR. The Warrants shall be transferable only on the books of the Company (the
"Warrant Register") upon delivery thereof, duly endorsed, by the Holder or by
his duly authorized attorney or representative, or accompanied by proper
evidence of succession, assignment or authority to transfer, in each case
accompanied by any necessary transfer tax or other governmental charge imposed
upon transfer, or evidence of the payment thereof. In all cases of transfer by
an attorney, the original power of attorney, duly approved, or an official copy
thereof, duly certified, shall
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be deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited with the
Company in its discretion. Upon any registration of transfer, the Company shall
promptly deliver a new Certificate or Certificates to the persons entitled
thereto. Notwithstanding the foregoing, the Company shall have no obligation to
cause Warrants to be transferred on its books to any person, unless the holder
of such Warrants shall furnish to the Company evidence of compliance with the
Securities Act of 1933, as amended (the "Act"), in accordance with the
provisions of this Section.
(b) IMR covenants to the Company that IMR will not dispose of any
Warrants or Warrant Shares except pursuant to (i) an effective Registration
Statement or (ii) an opinion of counsel, reasonably satisfactory to counsel for
the Company, that an exemption from such registration is available.
(c) The Warrants shall be subject to a stop-transfer order and any
Certificates shall bear the following legend by which each Holder shall be
bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT FILED PURSUANT
TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN OPINION OF COUNSEL,
WHICH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THIS
CORPORATION, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE."
(d) The Warrant Shares shall be subject to a stop-transfer order and
any certificates evidencing any such shares shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT FILED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN OPINION OF
COUNSEL, WHICH OPTION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THIS
CORPORATION, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE."
5. Term of Warrants; Exercise of Warrants.
(a) Each Warrant entitles the Holder thereof to purchase, on or
after the date hereof one share of Common Stock at any time on or before 5:00
p.m., New York time, on
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the earlier to occur of (i) the 60th day after default by IMR in its obligations
under the Credit Agreement if such default shall not have been cured or waived
by such 60th day, and (ii) the fifth anniversary of the date of this Agreement
(the "Expiration Date") at the lesser of (i) $5.25 per share and (ii) if there
shall have occurred a Rights Offering (as defined in the Stock Purchase
Agreement, dated as of July 8, 1991, between the Company, Hanover Direct, Inc.
and North American Resources Limited (the "Stock Purchase Agreement")), a price
per share equal to the product of 1.75 multiplied by the Rights Offering Price
(as defined in the Stock Purchase Agreement) (the "Exercise Price"), as the same
may be adjusted pursuant to Annex B hereof.
(b) Subject to the provisions of this Agreement, and provided that
IMR shall not at the time be in default in its obligations under the Credit
Agreement, the Holder of each Warrant shall have the right, which may be
exercised as expressed in such Warrant, to purchase from the Company (and the
Company shall issue and sell to each such Holder) one fully paid and
nonassessable share of Common Stock upon surrender to the Company, or its duly
authorized agent, of the Certificate or Certificates representing such Warrant
or Warrants, with the form of election to purchase on the reverse thereof duly
filled in and signed, and upon payment to the Company of the Exercise Price.
Payment of such Exercise Price may be made in cash or by certified or official
bank check or wire transfer payable to the order of the Company.
(c) Subject to Section 6 hereof, upon such surrender of Warrants,
and payment of the Exercise Price as aforesaid, the Company shall issue and
cause to be delivered to the Holder or upon the written order of such Holder and
(subject to receipt of evidence of compliance with the Act in accordance with
the provisions of Section 4 of this Agreement) in such name or names as the
Holder may designate, a Certificate or Certificates for the number of full
Warrant Shares so purchased, together with cash or check, as provided in Section
10 of this Agreement, in respect of a fraction of a share of such stock
otherwise issuable upon such surrender and, if the number of Warrants
represented by a Certificate shall not be exercised in full, a new Certificate
or Certificates, executed by the Company, for the balance of the number of whole
Warrants represented by the surrendered Certificate.
(d) If permitted by applicable law, such Certificate or Certificates
shall deemed to have been issued and any person so designated to be named
therein shall be deemed to have become a holder of record of such shares as of
the date of the surrender of such Warrants and
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payment of the Exercise Price. The Warrants shall be exercisable, at the
election of the Holder thereof, either as an entirety or from time to time for
part of the shares specified therein.
6. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any Warrants or certificates for Warrant Shares in a
name other than that of the Holder of such Warrants.
7. Mutilated Missing Certificate. In case any Certificates shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and in substitution for and upon cancellation of the mutilated
Certificates, or in lieu of and in substitution for the Certificates lost,
stolen or destroyed, new Certificates of like tenor and representing an
equivalent right or interest; but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of such Certificates and of
indemnity or bond, if requested, also satisfactory to the Company. An applicant
for such substitute Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
8. Reservation of Warrant Shares; Authorization.
8.1 Reservation of Warrant shares. The Company has reserved and will
keep available, out of the authorized and unissued shares of Common Stock or the
authorized and issued shares of Common Stock held in the Company's Treasury, the
full number of shares sufficient to provide for the exercise of the rights of
purchase represented by all the outstanding Warrants. The transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent Transfer Agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent and with every subsequent
Transfer Agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Company will
supply such Transfer Agent with duly executed stock certificates for such
purpose and will itself provide or otherwise make available any cash or check
which may be issuable as provided in Section 10 of this Agreement. The
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Company will furnish to such Transfer Agent a copy of all notices of adjustments
and certificates related thereto, transmitted to each holder pursuant to this
Agreement. All Warrants surrendered in the exercise of the rights thereby
evidenced shall be cancelled.
8.2 Authorization. This Agreement has been duly and validly executed
and delivered by the Company and this Agreement constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms (except in
each such case as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and except that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and except as rights to indemnity and
contribution hereunder and thereunder may be limited by federal or state
securities laws). The execution, delivery and performance of this Agreement by
the Company and compliance by the Company with the terms and provisions hereof
do not and will not violate any provision of any law, rule or regulation, order,
writ, judgment, injunction, statute, decree, determination or award having
applicability to the Company, or any of its properties or assets, except that
ownership of the Warrant may violate Nevada gaming laws if the Holder has not
complied with said laws applicable to it. The execution, delivery and
performance of this Agreement by the Company and compliance by the Company with
the terms and provisions hereof do not and will not (i) conflict with or result
in a breach of or constitute a default under any provision of the charter or
by-laws of the Company; or (ii) give rise to an event of default which may
result in the acceleration of any material amount of Indebtedness (as such term
is defined in the Credit Agreement) or an event of default under any other
material contractual obligation of the company. The Company covenants that upon
issuance and delivery against payment pursuant to the term of their Warrant
Agreement, all Warrant Shares will be validly issued, fully paid and
nonassessable outstanding shares of Common Stock of the Company. The Company
represents and warrants that the number of outstanding shares of Common stock of
the Company is 13,910,177. Except as set forth on Schedule 1 attached hereto,
there are not outstanding subscriptions, convertible Securities, warrants or
other rights, agreements or commitments to subscribe for or purchase or acquire
from the Company, or any contracts providing for the issuance of, or the
granting of rights to acquire any capital stock of the Company or any securities
convertible or exchangeable for any such capital stock. There are no preemptive
rights with respect to and there are no outstanding contractual obligations of
the
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Company to repurchase, redeem or otherwise acquire any shares of the Company.
9. Adjustments of Exercise Price and Number of Shares. The Exercise
Price and Warrant shares shall be adjusted under certain circumstances in
accordance with Annex B attached hereto, and expressly incorporated herein and
made a part hereof.
10. Fractional Shares of Common Stock. The Company shall not be
required to issue fractional Warrant Shares on the exercise of Warrants. If more
than one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 10,
be issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the Closing Price for one share of
the Common Stock, on the trading day immediately preceding the date the Warrant
is presented for exercise, multiplied by such fraction. The Company may also
make any payment required by this Section 10 by check.
11. Registration Rights. The Holder shall have those registration
rights with respect to the Warrant Shares as set forth in the Registration
Rights Agreement, dated as of the date hereof, in the form attached hereto as
Annex C, between IMR, the Company and North American Resources Limited (the
"Registration Rights Agreement"), provided that if IMR shall at the time be the
Holder, IMR shall not be entitled to such registration rights if it shall be in
default under the credit Agreement, unless such default shall have been cured or
waived by the 60th day after occurence thereof,
12. Rights as Stockholders; Notices to Holders. Nothing contained in
this Agreement or in any of the Warrants shall be construed as conferring upon
the holders or their transferees the right to vote or to receive dividends or to
consent to or receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall take any action which requires an adjustment
under Annex B attached hereto; or
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(b) a merger occurs to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company as, or
substantially as, an entirety, or of any reclassification or change of
outstanding Warrant Shares issuable upon exercise of the Warrants (other
than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination);
or
(c) voluntary or involuntary dissolution, liquidation, or winding-up
of the Company;
then in any one or more of said events the Company shall give notice in writing
of such event to the Holders at least 20 days (10 days in any case specified in
clauses (a) and (b) above) prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the stockholders entitled
to such dividend, distribution, or subscription rights, or for the determination
of stockholders entitled to vote on such proposed merger, sale,
reclassification, dissolution, liquidation or winding-up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
13. Miscellaneous.
(a) Notices. Any notice pursuant to this Agreement to be given or
made by the Holder of any Warrant Certificate to the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
The Horn & Hardart Company
c/o Hanover Direct, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Executive Vice President
and General Counsel
Notices or demands authorized by this Agreement to be given or made to the
Holder of any Warrant shall sufficiently given or made (except as otherwise
provided in this Agreement) if sent by first-class postage prepaid, addressed to
such Holder at the address such holder as shown on the Warrant Register.
(b) Governing Law. This Agreement shall if governed by and
construed in accordance with the laws of the
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State of New York, without giving effect to principles of conflict
of laws.
(c) Amendments and Waivers. This Agreement may be amended, modified
or superseded only by written instrument signed by all of the parties hereto,
and any of the terms, provisions, and conditions hereof may be waived, only by
a written instrument signed by the party waiving such term, provision or
condition.
(d) Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
(e) Merger or Consolidation of the Company. So long as Warrants
remain outstanding, until the Expiration Date, the Company will not merge or
consolidate with or into, or sell, transfer to or lease all a substantially all
of its property to, any other corporation unless the successor or purchasing
corporation, as the case may be (if not the Company), shall expressly assume, by
supplemental agreement executed and delivered to the Holder, the due and
punctual performance and observance of each and every covenant and condition of
this Agreement to be performed and observed by the Company.
(f) Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holder, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holder of the Warrants and Warrant Shares.
(g) Captions. The captions of the sections and subsections of this
Agreement have been inserted for convenience only and shall have no substantive
effect.
(h) 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 together shall constitute but one and the same instrument.
(i) Termination. This Agreement shall terminate at the close of
business on the Expiration Date or any earlier date when all Warrants have been
exercised, provided that the registration rights provided for in the
Registration Rights Agreement shall remain in full force and effect to the
extent provided for therein.
(i) Specific Performance. The parties hereto acknowledge and agree
that in the event of any breach of
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this Agreement, IMR would be irreparably harmed and would not be made whole by
monetary damages. It is accordingly agreed that IMR, in addition to monetary
damage and any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of this Agreement, including,
without limitation, the Registration Rights set forth in the Registration Rights
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day, month and year first above written.
THE HORN & HARDART COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: President
INTERCONTINENTAL MINING &
RESOURCE LIMITED
By: /s/ [ILLEGIBLE]
--------------------------
Name:
Title: VP
