EXHIBIT 4.22
[PLACE LEGEND HERE]
No. W-_____ Warrants to Purchase
_______ Shares
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
XXXXXXX ACQUISITION CORP.
(to be known as Xxxxxxx Products, Inc.)
Void after August 15, 2005
THIS CERTIFIES THAT, for value received,
or registered assigns, is entitled to purchase from Xxxxxxx Acquisition Corp., a
Delaware corporation (to be known from and after the Closing and the
transactions contemplated thereby as Xxxxxxx Products, Inc.) (the "Company"), at
any time on or before 5:00 p.m., New York City time, on August 15, 2005 (the
"Expiration Date"), _____ fully paid and nonassessable shares of Common Stock
(the Common Stock and other consideration deliverable on exercise of the
Warrants being referred to herein as the "Warrant Shares"), subject to the
adjustments and on the terms and conditions hereinafter set forth, at the
exercise price of $.01 per Warrant Share (the "Exercise Price").
The terms that are capitalized herein shall have the meanings
specified in Section 14 unless the context shall otherwise require.
SECTION 1. Exercise of Warrant.
(a) Subject to the conditions hereinafter set forth, this Warrant may
be exercised on or prior to the Expiration Date in whole at any time or from
time to time in part by the holder hereof (the "Holder"), by the surrender of
this Warrant (with the subscription form at the end hereof duly executed) at the
office of the Company specified in Section 13 hereof and upon payment to the
Company of the aggregate Exercise Price (or the proportionate part thereof if
exercised in part) for the Warrant Shares so purchased. Payment for the Warrant
Shares purchased by the Holder pursuant to this Section 1 shall be made in
cash or by certified or official bank check in lawful money of the United States
of America to the order of the Company. The
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date of exercise of this Warrant (or any portion hereof if exercised in part)
shall be deemed to be the date of receipt by the Company of this Warrant duly
filled in and signed and accompanied by proper payment as herein provided.
(b) Upon receipt of this Warrant, with the appropriate form of
election to exercise duly executed, accompanied by payment of the Exercise Price
for the Warrant Shares to be purchased, the Company shall promptly (but in any
event within three trading days) (i) requisition from any transfer agent of the
Warrant Shares certificates for the number of Warrant Shares to be purchased and
cause the same to be delivered to or upon the order of the Holder, registered in
such name or names as may be designated by such Holder and (ii) when
appropriate, deliver to or upon the order of the Holder cash in lieu of issuance
of fractional Warrant Shares in accordance with Section 4. Unless otherwise
requested by the Holder, the Warrant Shares issuable hereunder shall be voting
stock.
(c) If this Warrant is exercised in respect of fewer than all of the
Warrant Shares at the time purchasable hereunder, the Holder shall be entitled
to receive a new Warrant covering the number of Warrant Shares in respect of
which this Warrant shall not have been exercised; provided, however, that this
Warrant and all rights and options hereunder shall expire on the Expiration
Date, and shall be null and void to the extent this Warrant is not exercised
before it expires.
SECTION 2. Reservation of Warrant Shares. The Company shall at all
times on and prior to the Expiration Date reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, the
maximum number of shares of Common Stock that may then be deliverable upon the
exercise of the rights represented by this Warrant.
The Company covenants that all Warrant Shares issued upon exercise of
this Warrant shall, upon issue, be fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issue thereof.
SECTION 3. Adjustments. The number of Warrant Shares issuable upon
the exercise of this Warrant is subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 3.
(a) Adjustment for Change in Capital Stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock or other shares of its capital stock;
(ii) subdivides its outstanding shares of Common Stock into a
greater number of shares;
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(iii) combines its outstanding shares of Common Stock into a
smaller number of shares; or
(iv) issues by reclassification of its Common Stock any shares
of its capital stock;
then the number of Warrant Shares deliverable upon exercise of this Warrant
immediately prior to such action shall be proportionately adjusted so that the
Holder may thereafter receive the aggregate number and kind of shares of capital
stock of the Company that the Holder would have owned immediately following such
action if this Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Distributions. If the Company distributes to holders of its
Common Stock any of its assets (including but not limited to cash), securities
(other than capital stock), or any rights or warrants to purchase securities of
the Company (including but not limited to capital stock), then the Company shall
make the same distribution to the Holder as though, immediately prior to the
record date with respect to such distribution, the Holder owned the number of
shares of Common Stock it could have purchased upon the exercise of this
Warrant.
(c) Reorganization of Company. If the Company consolidates or merges
with or into, or transfers or leases all or substantially all of its assets to,
any person, upon consummation of such transaction this Warrant shall
automatically become exercisable for the kind and amount of securities, cash or
other assets that the Holder would have owned immediately after the
consolidation, merger or transfer or lease if the Holder had exercised the
Warrant immediately before the effective date of the transaction. Concurrently
with the consummation of such transaction, the corporation formed by or
surviving any such consolidation or merger if other than the Company, or the
person to which such sale or conveyance shall have been made, shall assume by
written instrument executed and mailed or delivered to the Holder the obligation
to deliver to the Holder, such securities, cash or other assets to which, in
accordance with the foregoing provisions, such Holder is entitled upon exercise
of this Warrant, and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this
Section 3.
If the issuer of securities deliverable upon exercise of this Warrant
following such a transaction is an Affiliate of the formed, surviving,
transferee or lessee corporation, that issuer shall join in the written
undertaking specified in the foregoing paragraph.
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If this subsection (c) applies to any transaction, subsections 3(a)
and (b) shall not apply to such transaction.
(d) Form of Warrants. Irrespective of any adjustments in the number
or kind of shares purchasable upon the exercise of this Warrant, this Warrant
may continue to express the same number and kind of shares as are stated
initially.
(e) Notice of Adjustments. Whenever the number of shares deliverable
upon exercise of this Warrant shall be adjusted pursuant to this Section 3, the
Company shall promptly prepare a certificate signed by the President or a Vice
President and by the principal financial officer or principal accounting officer
of the Company setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board of
Directors of the Company made any determination hereunder), and shall promptly
cause copies of such certificate to be mailed (by first-class mail, postage
prepaid) to the Holder. In addition, if the adjustment or action arises
pursuant to subsection 3(a), the Company shall deliver, or cause to be
delivered, to the Holder a certificate of a firm of independent public
accountants selected by the Board of Directors of the Company (who may be the
regular accountants employed by the Company) setting forth the number of Warrant
Shares issuable upon exercise of this Warrant after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and setting forth
the computation by which such adjustment was made. Where appropriate, such
notice may be given in advance and may be included as a part of the notice
required to be sent under the other provisions of Section 11.
SECTION 4. Fractional Interests. The Company shall not be required
to issue fractional Warrant Shares on the exercise of this Warrant. 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 4,
be issuable on the exercise of any Warrants (or specified portion thereof), upon
payment in full of the Exercise Price with respect to such fraction of a Warrant
Share the Company shall pay an amount in cash equal to the same fraction of the
Current Market Price of such Warrant Share on the day immediately preceding the
date the Warrant is presented for exercise, provided, that at the request of the
Holder, the Exercise Price with respect to such fraction of a Warrant Share may
be netted against the cash to be paid by the Company under this Section 4.
SECTION 5. Exchange of Warrant Certificates. This Warrant may be
exchanged for another Warrant or Warrants entitling the holder thereof to
purchase a like aggregate number of Warrant Shares as this Warrant then entitles
the Holder to purchase. If the Holder desires to exchange this Warrant the
Holder shall make such request in writing delivered to the Company and shall
surrender, properly endorsed, this Warrant at the office of the Company
designated for such purpose. Thereupon, the Company shall deliver to the person
entitled
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thereto, without expense to the Holder, a new Warrant or Warrants, as the case
may be, as so requested.
SECTION 6. Transfers. This Warrant shall be transferable only on the
Warrant Register upon delivery of this Warrant duly endorsed by the Holder or by
a duly authorized attorney or representative, or accompanied by proper evidence
of succession, assignment or authority to transfer. In all cases of transfer by
an attorney, the original power of attorney, duly approved, or an official copy
thereof, duly certified, shall be deposited and remain 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 deliver to the
persons entitled thereto a new Warrant or Warrants, as the case may be. Upon
the request of the Holder, the Company shall provide the information required by
Rule 144A(d)(4) under the Securities Act.
SECTION 7. Partial Exercise and Partial Assignment. If this Warrant
is exercised in part only, the Holder shall be entitled to receive a new Warrant
covering the number of shares in respect of which this Warrant shall not have
been exercised as provided in Section 1. If this Warrant is partially assigned,
this Warrant shall be surrendered at the principal office of the Company (with
the partial assignment form at the end hereof duly executed), and thereupon a
new Warrant shall be issued to the Holder covering the number of shares not
assigned. The assignee of such partial assignment of this Warrant shall also be
entitled to receive a new Warrant covering the number of shares so assigned.
SECTION 8. Taxes. The Company covenants and agrees that it will pay
when due and payable any and all Federal, State and local taxes (other than
taxes with respect to income) that may be payable in respect of the delivery of
this Warrant or any Warrant Shares upon the exercise of the rights represented
by this Warrant pursuant to the provisions hereof.
SECTION 9. Lost, Stolen Warrants, Etc. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft, or destruction upon
delivery of a bond or indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation upon surrender
and cancellation of this Warrant, the Company will make and deliver without
expense to the Holder, a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. If the Purchaser or any subsequent
Institutional Holder is the owner of any such lost, stolen or destroyed Warrant,
then the affidavit of an authorized officer of such owner, setting forth the
fact of loss, theft or destruction shall be accepted as satisfactory evidence
thereof and no further indemnity shall be required as a condition to the
execution and delivery of the new Warrant other than the written agreement of
such owner to indemnify the Company.
SECTION 10. Government Approvals and Stock Exchange Listings. The
Company shall use its best efforts to (a) obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and to
make securities acts filings under
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Federal and state laws, if any, that are required to permit the exercise of the
Warrants, and (b) have the Warrant Shares, immediately upon their issuance,
listed on the principal securities exchanges and markets within the United
States of America, if any, on which other shares of Common Stock are then
listed.
SECTION 11. Consolidation, Merger, Dissolution and Liquidation. In
the event of
(i) any consolidation or merger to which the Company is a party and
for which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock deliverable
upon exercise of this Warrant (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 a tender offer or exchange offer for shares of
Common Stock; or
(ii) the voluntary or involuntary dissolution, liquidation or winding
up of the Company,
the Company shall deliver, or cause to be delivered, to the Holder, at least 30
days prior to the applicable record date hereinafter specified, or at least 30
days prior to such event in the case of events for which there is no record
date, in accordance with Section 13 hereof, a written notice stating, as
appropriate, (x) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (y) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up.
SECTION 12. Warrant Holder Not A Shareholder. Nothing contained in
this Warrant shall be construed as conferring upon the Holder the right to vote
or to consent or to receive notice as a shareholder in respect of the meetings
of shareholders or the election of directors of the Company or any other matter,
or any rights whatsoever as shareholders of the Company.
SECTION 13. Notices. Any notice required to be given or made by the
Holder to or on the Company shall be sufficiently given or made (i) five
Business Days after being deposited in the mail, first class, return receipt
requested, or (iii) one Business Day after being deposited with a nationally
recognized next-day air courier, in each case postage prepaid and addressed to
the office of the Company expressly designated by the Company at its office for
purposes of this Warrant (until the Holder is otherwise notified in accordance
with this Section by the Company), as follows:
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Xxxxxxx Acquisition Corp.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Any notice pursuant to this Warrant to be given by the Company to the
Holder shall be sufficiently given when or made (i) five Business Days after
being deposited in the mail, first class, return receipt requested or (ii) one
Business Day after being deposited with a nationally recognized next-day air
courier, in each case postage prepaid and addressed (until the Company is
otherwise notified in accordance with this Section by the Holder) or next-day
air courier to such Holder at the address appearing on the Warrant Register of
the Company.
SECTION 14. Definitions. As used in this Warrant, the following
terms shall have the following meanings:
"Affiliate" of any specified person shall mean any other person (a)
that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified person, (b) that
beneficially owns or holds 10% or more of the Voting Stock of such specified
person or (c) 10% or more of the Voting Stock (or in the case of a person that
is not a corporation, 10% or more of the Equity Interest) of which is
beneficially owned or held by such specified person or one of its Subsidiaries.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of Voting Stock, by contract or otherwise.
Notwithstanding the foregoing to the contrary, (i) the Principals and their
respective Affiliates shall be deemed to be Affiliates of the Company and (ii)
none of Xxxxxxxxx & Company, Inc., any of the original holders of Warrants nor
any of their respective Affiliates shall be deemed to be Affiliates of the
Company.
"Board of Directors" shall mean the board of directors or any duly
constituted committee of any corporation or of a corporate general partner of a
partnership and any similar body empowered to direct the affairs of any other
entity.
"Business Day" shall mean any day other than a Saturday, Sunday,
statutory holiday or other day on which banks in New York or Missouri are
authorized to close.
"Common Stock" shall mean shares now or hereafter authorized of any
class of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
"Equity Interests" shall mean capital stock or warrants, options or
other rights to acquire capital stock (but excluding any debt security that is
convertible into, or exchangeable for, capital stock).
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"Institutional Holder" shall mean any of the following persons: (a)
any bank, savings and loan association, savings institution, trust company,
public investment trust or national banking association, acting for its own
account or in a fiduciary capacity, (b) any charitable foundation, (c) any
insurance company, (d) any fraternal benefit society, (e) any pension,
retirement or profit-sharing trust or fund within the meaning of title I of
ERISA or for which any bank, trust company, national banking association or
investment adviser registered under the Investment Advisers Act of 1940, as
amended, is acting as trustee or agent, (f) any investment company or business
development company, as defined in the Investment Company Act of 1940, as
amended, (g) any small business investment company licensed under the Small
Business Investment Act of 1958, as amended, (h) any broker or dealer registered
under the Exchange Act, or any investment adviser registered under the
Investment Advisers Act of 1940, as amended, (i) any government, any public
employees' pension or retirement system, or any other government agency
supervising the investment of public funds, (j) any other entity all of the
equity owners of which are Institutional Holders or (k) any other person that
may be within the definition of "qualified institutional buyer" as such term is
used in Rule 144A.
"Other Purchasers" shall mean the other purchasers listed on the
signature pages of the Securities Purchase Agreement.
"Principals" shall mean The Jordan Company and Jordan/Zalaznick
Capital Corporation and their respective Affiliates, principals, partners and
employees, family members of any of the foregoing and trusts for the benefit of
any of the foregoing, including, without limitation, Leucadia National
Corporation and its subsidiaries. Notwithstanding the foregoing, MCIT PLC shall
be deemed not to be a Principal or an Affiliate of a Principal.
"Related Warrants" shall mean the Warrants (other than this Warrant)
initially issued pursuant to the Securities Purchase Agreement.
"Requisite Percentage" on any date shall mean the holders of Warrants
that are entitled to receive at least 66 2/3% of the Warrant Shares that are
deliverable upon the exercise of all Warrants then outstanding (assuming for
such purpose that Warrants held by Affiliates of the Company are not
outstanding).
"Securities Purchase Agreement" shall mean the several Purchase
Agreements, dated as of August 16, 1995, relating to the purchase and sale of
the Warrants and certain other equity securities of the Company.
"Voting Stock" shall mean, with respect to any person, (i) any class
or classes of capital stock of such person the holders of which are entitled to
elect a majority of the corporate directors (or persons performing similar
functions) (irrespective of whether or not at the time capital stock of any
other class or classes have or might have voting power by reason of the
happening of any contingency) and (ii) any capital stock of such person
convertible or exchangeable without restriction at the option of the holder
thereof into capital stock of such person described in clause (i) above.
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"Warrants" shall mean this Warrant and Related Warrants and all
warrants hereafter issued in exchange or substitution for this Warrant or any
Related Warrants.
SECTION 15. Supplements and Amendments. The Company may from time to
time supplement or amend this Warrant; provided, that
(a) the consent of the Holder shall be required for any amendment (i)
pursuant to which the Exercise Price would be increased or the number of Warrant
Shares purchasable upon exercise of this Warrant would be decreased or (ii) of
Sections 1, 2, 3 hereof or of this Section 15; and
(b) the consent of the registered holders of the Requisite Percentage
of then outstanding Warrants shall be required for any other amendment hereto.
Any such amendment or waiver shall apply equally to all of the holders
of the Warrants and shall be binding upon them, upon each future holder of any
Warrant and upon the Company, whether or not such Warrant shall have been marked
to indicate such amendment or waiver. No such amendment or waiver shall extend
to or affect any obligation not expressly amended or waived or impair any right
consequent thereon.
SECTION 16. Successors. All the covenants and provisions of this
Warrant by or for the benefit of the Company shall bind and inure to the benefit
of their respective successors and assigns hereunder. Upon becoming a successor
to the Company, such successor shall be deemed to be the Company for the
purposes of this Warrant.
SECTION 17. Governing Law. THIS WARRANT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE
OF
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PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PURCHASER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
SECTION 18. Severability. If any term, provision, covenant or
restriction of this Warrant is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Warrant shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
SECTION 19. Descriptive Headings. Descriptive headings of the
several Sections of this Warrant are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, Xxxxxxx Acquisition Corp. has caused this Warrant
to be signed by its President and attested by its Secretary and this Warrant is
to be dated August __, 1995.
XXXXXXX ACQUISITION CORP.
By
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Name:
Title:
ATTEST
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Secretary
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ELECTION TO EXERCISE
XXXXXXX PRODUCTS, INC.
The undersigned, _____________________, pursuant to the provisions of the
within Warrant, hereby elects to purchase _______ shares of Common Stock of
Xxxxxxx Products, Inc. covered by the within Warrant.
Signature
-------------------------------
Address
---------------------------------
Dated
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ASSIGNMENT
FOR VALUE RECEIVED ____________ hereby sells, assigns and transfers
unto the within Warrant and all rights evidenced thereby and does irrevocably
constitute and appoint ______________________, attorney, to transfer the said
Warrant on the books of the within-named Company.
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ____________ hereby sells, assigns and transfers
unto that portion of the within Warrant and the rights evidenced thereby which
will on the date hereof entitle the holder to purchase _____ shares of Common
Stock of Xxxxxxx Products, Inc., and does hereby irrevocably constitute and
appoint _______________________, attorney, to transfer that part of the said
Warrant on the books of the within-named Company.
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Dated
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