Exhibit 10.9
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FIRST AMENDMENT TO WARRANTS
This First Amendment to Warrants (this "Amendment") is made as of the
31st day of October, 1994 between Nutraceutical Corporation, a Delaware
corporation (the "Company"), and Xxxxxx Financial, Inc., a Delaware corporation
("Xxxxxx").
W I T N E S S E T H:
WHEREAS, the Company has previously issued to Xxxxxx that certain
Warrant To Purchase Non-Voting Common Stock of the Company dated as of October
28, 1993 (the "Common Stock Warrant") and that certain Warrant To Purchase Class
A Non-Voting Common Stock of the Company dated as of October 28, 1993 (the
"Class A Warrant") (collectively, the Common Stock Warrant and the Class A
Warrant are referred to as the "Warrants"); and
WHEREAS, the Company and Xxxxxx desire to amend the warrants in
certain respects, as set forth more fully herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Terms capitalized herein and not otherwise defined
herein are used with the meanings ascribed to such terms in the Class A Warrant.
2. Class A Warrant Amended. The Class A Warrant is hereby amended as
follows:
(a) The following additional definition is hereby added to Article I:
"Excluded Management Shares" means, collectively, shares of Class P
Stock and shares of Other Common Stock issued to members of management
of the Company or any Subsidiary of the Company, other than Affiliates
and/or employees of Xxxx Investors, at any time on or after October
28, 1993 up to and not exceeding (a) an aggregate of 2,000 shares of
Class P Stock and (b) 33,000 shares of Other Common Stock.
(b) Section 4.2 is hereby amended by the addition to the initial
sentence thereof at the end thereof (preceding subsection (a) thereof) of
the following clause:
", except with respect to the issuance of Excluded Management
Shares."
(c) Subsection 4.2 (o) (iv) is hereby amended and restated in its
entirety as follows:
"(iv) the issuance of Excluded Management Shares."
(d) Section 8.9 is hereby amended and restated in its entirety as
follows:
"8.9 Conduct of Business. From and after the Closing Date, the
Company will not and will not permit any of its Subsidiaries to engage
in any business other than businesses of the type described on
Schedule 4.1(D) of the Credit Agreement (as in effect on the Closing
Date) or other businesses in the same industry as such businesses
disclosed on such Schedule 4.1(D) (as in effect on the Closing Date)."
3. Common Stock Warrant Amended. Warrant is hereby amended as
follows:
(a) The following additional definition is hereby added to Article I:
"Excluded Management Shares" means, collectively, shares of Class P
Stock and shares of Common Stock issued to members of management of
the Company or any Subsidiary of the Company, other than Affiliates
and/or employees of Xxxx Investors, at any time on or after October
28, 1993 up to and not exceeding (a) an aggregate of 2,000 shares of
Class P Stock and (b) 33,000 shares of Common Stock.
(b) Section 4.2 is hereby amended by the addition to the initial
sentence thereof at the end thereof (preceding subsection (a) thereof) of
the following clause:
"except with respect to the issuance of Excluded Management Shares."
(c) Subsection 4.2 (o) (iv) is hereby amended and restated in its
entirety as follows:
(d) Section 8.9 is hereby amended and restated in its entirety as
follows:
"8.9 Conduct of Business. From and after the Closing Date, the
Company will not and will not permit any of its Subsidiaries to engage
in any business other than businesses of the type described on
Schedule 4.1(D) of the Credit Agreement (as in effect on the Closing
Date) or other businesses in the same industry as such businesses
disclosed on such Schedule 4.1(D) (as in effect on the Closing Date)."
4. Consent and Waiver. Xxxxxx hereby consents to, and waives any
"Event of Default" (as defined in each of the Warrants) under the Warrants
arising by reason of, the issuance by the Company on July 8, 1994 to certain
management employees of Solaray of (a) 2,000 shares of Holdings Class P Stock
for a purchase price of $20.25 per share, and (b) 15,000 shares of Other Common
Stock for a purchase price of $0.25 per share. Xxxxxx and the Company hereby
agree that such issuances were, for purposes of the Warrants, issuances of
Excluded Management Shares and no adjustments shall be made under Article IV of
either of the Warrants with respect thereto.
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5. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(b) Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision hereof shall by held to be prohibited by or invalid or
unenforceable in whole or in part under applicable law in any jurisdiction, then
such provision shall be ineffective only to the extent of such prohibition,
invalidity or unenforceability, without invalidating the remaining provisions of
this Amendment.
(c) This Amendment shall be governed by, and construed under and
enforced in accordance with, the internal laws (as opposed to the conflicts of
law provisions) and decisions of the State of Illinois.
(d) This Amendment, taken with the other Loan Documents, constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior negotiations, warranties, commitments, offers,
letters of interest or intent, proposal letters, contracts, writings or other
agreements and understandings with respect thereto.
(e) No waiver, and no modification or amendment of any provision of
this Amendment shall in any event be effective unless specifically made in
writing and duly signed by the party to be bound thereby. Any such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
(f) This Amendment may be executed in one or more counterparts, and
any party to this Amendment may executed and deliver this Amendment by executing
and delivering any of such counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same Amendment.
(g) No failure or delay on the part of any party hereto to exercise
any right, power or privilege hereunder or under any instrument executed
pursuant hereto shall operate as a waiver not shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(h) Section, subsection and paragraph titles, captions and headings
herein are inserted only as a matter of convenience and for reference, shall not
be deemed to constitute a part hereof, and in no way define, limit, extend or
describe the scope of this Amendment or the intent of any provisions hereof.
(i) Any reference to either of the Warrants contained in any notice,
request, certificate or other document shall, after the execution and delivery
of this Amendment, be deemed to include this Amendment unless the context shall
otherwise specify.
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(j) The parties agree and acknowledge that nothing contained in this
Amendment in any manner or respect limits or terminates any of the provisions of
the Warrants other than as expressly set forth herein and further agree and
acknowledge that the Warrants, as amended hereby, remain and continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
officers, have executed this Amendment as of the date first above written.
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NUTRACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
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XXXXXX FINANCIAL, INC.
By: (signature illegible)
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Title: Vice President
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