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, 535,000 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 $2,166,750. 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 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 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.
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 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 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 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 Controller Title: Executive Vice President-
Finance and Administration and
Chief Financial Officer
and Secretary
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___________________________
____________________________
