EXHIBIT 1.01(b)
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THIS WARRANT AND ANY SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT ARE SUBJECT TO THE
TRANSFER RESTRICTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN THE TRANSACTION
DOCUMENTS (AS DEFINED IN THE PURCHASE AGREEMENT DATED AS OF THE DATE HEREOF). A
COPY OF SUCH DOCUMENTS MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.
Warrant No. 1 Number of Shares: 126,759
(subject to adjustment)
Date of Issuance: March 27, 2007
XXXXX XXXXX HOLDINGS, INC.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
THIS CERTIFIES THAT, for value received, OHCP DR CO-INVESTORS 2007, LLC, a
Delaware limited liability company, or its permitted assigns (collectively, the
"HOLDER") is entitled to subscribe for and purchase from XXXXX XXXXX HOLDINGS,
INC., a Delaware corporation (the "COMPANY") 126,759 shares (the "WARRANT
SHARES") of validly issued, fully paid and nonassessable common stock of the
Company, par value $0.01 per share (the "COMMON STOCK"), as adjusted from time
to time pursuant to the provisions of this Warrant, at the exercise price per
share and subject to the terms and conditions set forth below. As used herein,
the term "DATE OF GRANT" shall mean the Date of Grant listed on the signature
page hereof. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Purchase Agreement between the Company and the Holder,
dated as of March 27, 2007 (the "PURCHASE AGREEMENT").
1. NUMBER OF WARRANT SHARES, EXERCISE PRICE AND TERM:
In relation to the exercise of this Warrant, the number of
shares of Common Stock, the Exercise Price and the term are as set forth below:
LAST DAY TO EXERCISE
NUMBER OF SHARES EXERCISE PRICE PER SHARE WITH RESPECT TO THESE SHARES
---------------- ------------------------ ----------------------------
126,759 $75.00 March 27, 2019
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2. WARRANT PRICE. The exercise price per share at which this
Warrant may be exercised shall be as set forth in SECTION 1, and such other
price as shall result, from time to time, from the adjustments specified in
SECTION 5 and is herein referred to as the "WARRANT PRICE".
3. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT. Subject
to the terms and conditions set forth herein, the purchase right represented by
this Warrant may be exercised by the Holder, in whole or in part at any time,
or from time to time, on or after the date hereof and on or prior to 5 p.m. New
York City local time on March 27, 2019 (the "EXPIRATION DATE"):
(a) by the presentation and surrender of this Warrant (with
the notice of exercise substantially in the form attached hereto as EXHIBIT 1
duly completed and executed) to the principal office of the Company and
accompanied by the payment to the Company of an amount equal to the Warrant
Price multiplied by the number of Warrant Shares as to which this Warrant is
then being exercised by (i) cash, (ii) certified or bank check or wire transfer
to an account designated by the Company (a "WIRE TRANSFER"), (iii) the
cancellation by the Holder hereof of indebtedness or other obligations of the
Company to such Holder of an amount equal to the then applicable Warrant Price
multiplied by the number of Warrant Shares then being purchased, or (iv) the
surrender (which surrender shall be evidenced by cancellation of the Warrant
represented by any Warrant certificate presented in connection with a Cashless
Exercise (as defined below)) of this Warrant, and without the payment of the
Warrant Price in cash or certified check in return for the delivery to the
surrendering Holder of such number of shares of Common Stock equal to the
number of shares of Common Stock for which such Warrant is exercisable as of
the date of exercise (if the Warrant Price were being paid in cash or certified
or official bank check) reduced by that number of shares equal to the quotient
obtained by dividing (x) the aggregate Warrant Price to be paid by (y) the
Market Price (as defined below) of one (1) share of Common Stock on the
Business Day immediately preceding the day of exercise of the Warrant. An
exercise of this Warrant in accordance with clause (iii) or (iv) is herein
referred to as a "CASHLESS EXERCISE." "MARKET PRICE" shall mean, per share of
Common Stock, on any date specified herein: (a) if the Common Stock is not then
listed or admitted to trading on any national securities exchange but is
designated as a national market system security, the average of the last
trading price of the Common Stock on each of the ten days immediately prior to
such date; or (b) if there shall have been no trading on any such date or if
the Common Stock is not so designated, the average of the reported closing bid
and asked price of the Common Stock, on any such date as shown by NASDAQ and
reported by any member firm of the NYSE selected by the Company; or (c) if
neither (a) nor (b) is applicable, the fair market value per such share as
determined by the Board of Directors of the Company in good faith.
(b) if in connection with a registered public offering of
the Company's securities, the surrender of this Warrant (with the notice of
exercise form attached hereto as EXHIBIT 1 duly completed and executed) to the
principal office of the Company together with notice of arrangements reasonably
satisfactory to the Company for payment to the Company either by certified or
bank check or Wire Transfer from the proceeds of
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the sale of securities to be sold by the Holder in such public offering of an
amount equal to the then applicable Warrant Price per share multiplied by the
number of shares of Common Stock then being purchased.
The person or persons in whose name(s) any certificate(s)
representing shares of Common Stock shall be issuable upon exercise of this
Warrant shall be deemed to have become the holder(s) of record of, and shall be
treated for all purposes as the record holder(s) of, the shares represented
thereby (and such shares shall be deemed to have been issued) immediately prior
to the close of business on the date or dates upon which this Warrant is
exercised. In the event of any exercise of the rights represented by this
Warrant, certificates for the shares of Common Stock so purchased shall be
delivered to the Holder hereof by the Company at the Company's expense as soon
as possible and in any event within thirty (30) days after such exercise and,
unless this Warrant has been fully exercised or expired, a new Warrant
representing the portion of the shares of Common Stock, if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the Holder hereof as soon as possible and in any event within such thirty
(30)-day period.
4. STOCK FULLY PAID; RESERVATION OF SHARES. All Warrant Shares
that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance pursuant to the terms and conditions herein, be duly
authorized, validly issued, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issue thereof. During the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserved for the purpose of the
issue upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant and from time to time, will take all steps
necessary to amend its Certificate of Incorporation to provide sufficient
shares of its Common Stock for issuance on exercise of this Warrant (and
reserves of shares of Common Stock issuable upon exercise of the Warrant).
5. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number
and kind of securities purchasable upon exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) DIVIDEND, SUBDIVISION, COMBINATION OR RECLASSIFICATION
OF COMMON STOCK. If the Company shall, at any time or from time to time after
the issuance of this Warrant but prior to the exercise hereof: (i) make a
dividend or distribution on the outstanding shares of Common Stock payable in
capital stock, (ii) subdivide or reclassify or reorganize its outstanding
shares of Common Stock into a greater number of shares or (iii) combine or
reclassify or reorganize its outstanding shares of Common Stock into a smaller
number of shares, then in each such case, the number and kind of Warrant Shares
purchasable upon exercise of this Warrant shall be automatically adjusted so
that the Holder upon exercise hereof shall be entitled to receive the kind and
number of Warrant Shares or other securities of the Company that the Holder
would have owned or have been entitled to receive after the happening of any of
the events described above had this
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Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. Whenever the number of Warrant Shares
purchasable upon exercise hereof is adjusted as herein provided, the Warrant
Price shall be adjusted by multiplying the Warrant Price by a fraction, the
numerator of which is equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which is equal to the number of
shares of Common Stock purchasable after the adjustment. An adjustment made
pursuant to this SECTION 5(A) shall become effective retroactively (A) in the
case of any such dividend or distribution, on the close of business on the
record date for the determination of holders of Common Stock entitled to
receive such dividend or distribution or (B) in the case of any such
subdivision, combination or reclassification, on the close of business on the
day upon which such corporate action becomes effective.
(b) ISSUANCE OF COMMON STOCK OR COMMON STOCK EQUIVALENTS
BELOW MARKET PRICE.
(i) If the Company shall at any time or from time
to time, after the issuance of this Warrant but prior to the exercise hereof,
issue or sell any shares of Common Stock or Common Stock Equivalent (as defined
below) (excluding any such issuance or sale for which an adjustment is made
under the foregoing SECTION 5(A)), for a price per share of Common Stock (the
"NEW ISSUE Price") that is less than the Market Price as of the close of
business on the last Business Day immediately prior to the announcement of such
issuance (or if no such announcement is made, the record date for the
determination of stockholders entitled to receive such shares of Common Stock
or Common Stock Equivalents (the "RELEVANT DATE")) (treating the price per
share of Common Stock, in the case of the issuance of any Common Stock
Equivalent, as equal to the sum of the lowest amounts of consideration (if any)
received or receivable by the Company with respect to any one share of Common
Stock (1) upon granting or sale of the Common Stock Equivalent, (2) upon
exercise of the Common Stock Equivalent and (3) upon conversion or exchange or
exercise of any convertible security issuable upon exercise of such Common
Stock Equivalent), other than (x) issuances or sales for which an adjustment is
made pursuant to another subsection of this SECTION 5 and (y) issuances in
connection with an Excluded Transaction (as defined below), then in such event,
the Warrant Price shall be reduced to the price determined by multiplying the
Warrant Price in effect immediately prior to such issue date by a fraction (A)
the numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issuance calculated on a fully diluted,
as converted basis PLUS the number of shares of Common Stock which the
aggregate consideration received by the Company for the total number of such
additional shares of Common Stock so issued would purchase at the Market Price
as of the Relevant Date (or, in the case of Common Stock Equivalents, the
number of shares of Common Stock which the aggregate consideration received by
the Company upon the issuance of such Common Stock Equivalents and receivable
by the Company upon the conversion, exchange or exercise of such Common Stock
Equivalents (as calculated in accordance with this SECTION 5(B)) would purchase
at the Market Price as of the Relevant Date) and (B) the denominator of which
shall be the sum of the number of shares of Common Stock outstanding
immediately following such issuance calculated on a fully diluted, as converted
basis (I.E., including the number of
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additional shares of Common Stock issued or to be issued (or, in the case of
Common Stock Equivalents, the maximum number of shares of Common Stock into
which such Common Stock Equivalents initially may convert, exchange or be
exercised)).
(ii) Such adjustment shall be made whenever such
shares of Common Stock or Common Stock Equivalents are issued, and shall become
effective retroactively in the case of an issuance to the stockholders of the
Company to the close of business on the record date for the determination of
stockholders entitled to receive such shares of Common Stock or Common Stock
Equivalents; PROVIDED, HOWEVER, that the determination as to whether an
adjustment is required to be made pursuant to this shall only be made upon the
issuance of such shares of Common Stock or Common Stock Equivalents, and not
upon the issuance of any security into which the Common Stock Equivalents
convert, exchange or may be exercised.
(iii) In case at any time any shares of Common Stock
or Common Stock Equivalents or any rights or options to purchase any shares of
Common Stock or Common Stock Equivalents shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by
the Company therefor, without deduction therefrom of any expenses incurred or
any underwriting commissions or concessions or discounts paid or allowed by the
Company in connection therewith. In case any shares of Common Stock or Common
Stock Equivalents or any rights or options to purchase any Common Stock or
Common Stock Equivalents shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the fair market value of such consideration, without
deduction therefrom of any expenses incurred or any underwriting commissions or
concessions or discounts paid or allowed by the Company in connection
therewith, as determined by the Board of Directors of the Company in good
faith.
(iv) If from time to time any Common Stock
Equivalents (or any portions thereof) which shall have given rise to an
adjustment pursuant to this SECTION 5(B) shall have expired or terminated
without the exercise thereof and/or if by reason of the terms of such Common
Stock Equivalents there shall have been an increase or decrease, with the
passage of time or otherwise, in the price payable upon the exercise or
conversion thereof, then the conversion price hereunder shall be readjusted in
accordance with SECTION 5(B)(I), in order to (x) eliminate from the computation
any additional shares of Common Stock corresponding to such Common Stock
Equivalents as shall have expired or terminated, (y) treat the additional
shares of Common Stock, if any, actually issued or issuable pursuant to the
previous exercise of such Common Stock Equivalents as having been issued for
the consideration actually received and receivable therefor and (z) treat any
of such Common Stock Equivalents which remain outstanding as being subject to
exercise or conversion on the basis of such exercise or conversion price as
shall be in effect at the time.
"COMMON STOCK EQUIVALENT" means any security or obligation
which is by its terms convertible into or exchangeable or exercisable into
shares of Common Stock or another Common Stock equivalent, and any option,
warrant or other subscription or purchase right with respect to Common Stock.
"EXCLUDED TRANSACTIONS" mean
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(i) Common Stock issued upon exercise of Common Stock Equivalents outstanding
as of the date hereof or issued pursuant to the Purchase Agreement, (ii) the
issuance of any Warrants pursuant to the Purchase Agreement, (iii) Common Stock
issued or sold in connection with a strategic transaction by the Company or any
of its Affiliates, and (iv) options for Common Stock of the Company issued from
time to time to directors, officers, employees or consultants of the Company
and any Subsidiary pursuant to any qualified or non-qualified stock option
plan, employee stock ownership plan, employee benefit plan, stock plan, or such
other options, arrangements, agreements or plans intended principally as a
means of providing compensation or incentive compensation for employment or
services approved by the Board of Directors of the Company.
(c) CERTAIN DISTRIBUTIONS. If the Company shall at any time
or from time to time, after the issuance of this Warrant but prior to the
exercise hereof, distribute to all holders of shares of Common Stock (including
any such distribution made in connection with a merger or consolidation in
which the Company is the resulting or surviving Person and the Common Stock is
not changed or exchanged) cash, evidences of indebtedness of the Company or
another issuer, securities of the Company (other than Common Stock) or another
issuer or other assets (excluding dividends payable in shares of Common Stock
for which adjustment is made under another paragraph of this SECTION 5) or
rights or warrants to subscribe for or purchase of any of the foregoing, then,
and in each such case, the Warrant Price then in effect shall be adjusted (and
any other appropriate actions shall be taken by the Company) by multiplying the
Warrant Price in effect immediately prior to the date of such distribution by a
fraction (x) the numerator of which shall be the Market Price of the Common
Stock as of the date of business on the Business Day immediately prior to the
announcement of such distribution (or, if no such announcement is made, the
record date for the determination of the stockholders entitled to receive such
distribution) less the then fair market value (as determined in good faith by
the Board of Directors) of the portion of the cash, evidences of indebtedness,
securities or other assets so distributed or of such rights or warrants
applicable to one share of Common Stock and (y) the denominator of which shall
be the Market Price of the Common Stock immediately prior to the date
determined pursuant to clause (x) above (but such fraction shall not be greater
than one); PROVIDED, HOWEVER, that no adjustment shall be made with respect to
any distribution of rights or warrants to subscribe for or purchase securities
of the Company if the Holder would otherwise be entitled to receive such rights
or warrants upon the exercise of this Warrant. Such adjustment shall be made
whenever any such distribution is made and shall become effective retroactively
to the close of business on the record date for the determination of
stockholders entitled to receive such distribution).
(d) OTHER CHANGES. If the Company shall at any time or from
time to time, after the issuance of this Warrant but prior to the exercise
hereof, take any action affecting its Common Stock similar to or having an
effect similar to any of the actions described in any of Section 5(a) through
(C) above (but not including any action described in any such section) and the
Board of Directors in good faith determines that it would be equitable in the
circumstances to adjust the Warrant Price as a result of such action, then, and
in each such case, the Warrant Price shall be adjusted in such manner and at
such time as the Board of Directors in good faith determines would be equitable
in the
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circumstances (such determination to be evidenced in a resolution, a certified
copy of which shall be mailed to the Holders).
(e) RIGHTS. The rights applicable to the shares of Common
Stock purchasable hereunder are set forth in the Company's Certificate of
Incorporation, as amended through the Date of Grant, a true and complete copy
of which has been supplied to the holder of this Warrant (the "CHARTER").
Following the initial public offering of shares of Common Stock, the Company
shall promptly provide the holder hereof with any restatement, amendment,
modification or waiver of the Charter promptly after the same has been made.
(f) NO ADJUSTMENTS. Notwithstanding anything herein to the
contrary, no adjustment under this SECTION 5 need be made to the Warrant Price
or the number of shares of Common Stock purchasable hereunder if the Company
receives written notice from all the Holders that no such adjustment is
required.
6. CERTIFICATE OF ADJUSTMENTS. Whenever the Warrant Price or the
number of Warrant Shares purchasable hereunder shall be adjusted pursuant to
SECTION 5 hereof, the Company shall deliver a certificate signed by its chief
financial officer setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the Warrant Price and the number of shares of Common Stock
purchasable hereunder after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (without regard to SECTION 12 hereof,
by internationally recognized overnight courier, specifying next day delivery)
to the Holder of this Warrant. In addition, whenever the conversion price or
conversion ratio of the shares of Common Stock shall be adjusted, the Company
shall make a certificate signed by its chief financial officer setting forth,
in reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the
conversion price or ratio of the shares of Common Stock after giving effect to
such adjustment, and shall cause copies of such certificate to be mailed
(without regard to SECTION 12 hereof, by internationally recognized overnight
courier, specifying next day delivery) to the Holder of this Warrant.
7. FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor based on the
fair market value of the Common Stock on the date of exercise as reasonably
determined in good faith by the Company's Board of Directors.
8. NOTICE OF PROPOSED ACTIONS. Following the initial public
offering of shares of Common Stock, in the event the Company proposes at any
time or from time to time (a) to declare or pay any dividend payable in stock
or to make any other distribution to the holders of the shares of Common Stock
(other than a regularly scheduled cash dividend), (b) to offer to the holders
of the shares of Common Stock rights or warrants to subscribe for or to
purchase any additional shares of Common Stock or shares of stock of any class
or any other securities, rights or options, (c) to effect any combination,
reorganization or reclassification of its Common Stock, (d) to effect any
consolidation,
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merger or sale, transfer or other disposition of all or substantially all of
the property, assets or business of the Company (e) to effect the liquidation,
dissolution or winding up of the Company, or (f) to take any other action that
would require a vote of the Company's stockholders, then, in each such case,
the Company shall give to the Holder, in accordance with SECTION 12, a written
notice of such proposed action, which shall specify (i) the record date for the
purposes of such stock dividend, distribution of rights or warrants or vote of
the stockholders of the Company, or if a record is not to be taken, the date as
of which the holders of shares of Common Stock of record to be entitled to such
dividend, distribution of rights or warrants, or vote is to be determined, or
(ii) the date on which such combination, reorganization, reclassification,
consolidation, merger, sale, transfer, disposition, liquidation, dissolution or
winding up is expected to become effective, and such notice shall be so given
as promptly as possible but in any event at least twenty (20) Business Days
prior to the applicable record, determination or effective date specified in
such notice.
9. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this
Warrant against dilution or other impairment.
10. RIGHTS AS STOCKHOLDERS; INFORMATION. Holder, as such, shall not
be entitled to vote or receive dividends or be deemed the holder of shares of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the Holder, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting thereof, or to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise until this Warrant shall have been exercised and the shares of Common
Stock purchasable upon the exercise hereof shall have become deliverable, as
provided herein.
11. TRANSFER. Subject to any restrictions on transfer contained in
the Purchase Agreement and referred to in the legends endorsed hereon, this
Warrant and all rights hereunder are transferable, in whole or in part, without
charge to the Holder hereof upon surrender of this Warrant with a properly
executed Form of Assignment, attached hereto as EXHIBIT 2, at the principal
office of the Company. Upon any partial transfer, the Company will at its
expense issue and deliver to the Holder a new Warrant of like tenor, in the
name of the Holder, which shall be exercisable for such number of shares of
Common Stock with respect to which rights under this Warrant were not so
transferred.
12. NOTICES. Except as provided for in SECTION 6, wherever
provision is made in this Warrant for the giving of any notice, such notice
shall be in writing and shall be delivered personally to such party, or sent by
facsimile transmission or overnight courier, in each case to the addresses or
facsimile telephone numbers set forth as follows:
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If to the Company:
Xxxxx Xxxxx Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to the Holder:
OHCP DR Co-Investors 2007, LLC
c/o Oak Hill Capital Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or to such other address, in any such case, as any party hereto shall have last
designated by notice to the other party. Notice shall be deemed to have been
given on the day that it is so delivered personally or sent by facsimile
transmission and the appropriate confirmation of successful transmission is
received. If sent by overnight courier, notice shall be deemed to have been
given the next Business Day after such communication is sent to the specified
address. The Holder may change their address for notices by giving written
notice of such change to the Company.
13. LOST WARRANTS OR STOCK CERTIFICATES. The Company covenants to
the Holder hereof that, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will, at its expense, make and deliver a new Warrant
or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
14. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
15. GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with, the laws of the State of Delaware without reference to
conflict of law principles.
16. AMENDMENT. Any provision of this Warrant may be amended and the
observance thereof waived only with the written consent of the Company and the
Holder or, if there is more than one Holder, the holders of Warrants to
purchase a majority of the Warrant Shares.
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17. REMEDIES. In case any one or more of the covenants and
agreements contained in this Warrant shall have been breached, the Holder
hereof (in the case of a breach by the Company), or the Company (in the case of
a breach by Holder), may proceed to protect and enforce their or its rights
either by suit in equity and/or by action at law, including, but not limited
to, an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Warrant.
18. SEVERABILITY. In case any one or more of the provisions of this
Warrant shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
19. WAIVER OF JURY TRIAL. THE COMPANY AND THE HOLDER HEREBY WAIVE
TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION
WITH, OR ARISING OUT OF THIS WARRANT OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT TO THIS WARRANT, OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER
ARISING, BETWEEN THE COMPANY AND THE HOLDER.
20. CONSENT TO JURISDICTION. The Company hereby irrevocably
consents to the exclusive jurisdiction of the courts of the State of New York
and of any Federal court located in such State in connection with any action or
proceeding arising out of or relating to this Warrant or any document or
instrument delivered pursuant hereto.
21. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
any prior understanding or agreement (oral or written) concerning such subject
matter. This Warrant (together with the Transaction Documents (as defined in
the Purchase Agreement)) constitutes the entire agreement among the parties
with respect to the transactions contemplated hereby and by the other
Transaction Documents, and supersedes any prior understanding or agreement
(oral or written) concerning such transactions.
[SIGNATURE PAGE FOLLOWS]
In witness whereof, the Company has caused this Warrant to be
duly executed on this 27th day of March, 2007.
XXXXX XXXXX HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
Date of Grant: March 27, 2007
EXHIBIT 1
---------
[FORM OF]
ELECTION TO PURCHASE SHARES
The undersigned hereby irrevocably elects to exercise the
Warrant to purchase [____] shares of fully paid and nonassessable common stock
("Common Stock") of XXXXX XXXXX HOLDINGS, INC. (the "Company") and hereby
[makes payment of $[______] therefor] [or] [makes payment therefor by the
surrender pursuant to Section 3 of a portion of the Warrant with respect to
[_____] shares]. The undersigned hereby requests that certificates for such
shares be issued and delivered as follows:
ISSUE TO:
Name: _______________________________
Address: ______________________________________________________________________
Social Security Number (or other Identifying Number): _________________________
DELIVER TO:
Name: _______________________________
Address: ______________________________________________________________________
If the number of shares of Common Stock purchased hereby is
less than the number of shares covered by the Warrant, the undersigned requests
that a new Warrant representing the number of shares of Common Stock not
purchased be issued and delivered as follows:
ISSUE TO:
Name: _______________________________
Address: ______________________________________________________________________
Social Security Number (or other Identifying Number): _________________________
DELIVER TO:
Name: _______________________________
Address: ______________________________________________________________________
Dated: _______________________________
[NAME OF HOLDER]
By: ___________________________
Name:
Title:
EXHIBIT 2
---------
[FORM OF]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto the Assignee named below all of the rights of the undersigned to
purchase shares of fully paid and nonassessable common stock (the "COMMON
STOCK") of XXXXX XXXXX HOLDINGS, INC. (the "COMPANY") represented by Warrant
No. 1, dated March 27, 2007, with respect to the number of shares set forth
below:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
---------------- ------- -------------
and does hereby irrevocably constitute and appoint any officer of the Company
to make such transfer on the books of the Company maintained for that purpose,
with full power of substitution in the premises.
Dated:________________
[NAME OF HOLDER]
By: ___________________________
Name:
Title:
