Exhibit 10.6
This Warrant and the securities issuable upon exercise hereof
have not been registered under the Securities Act of 1933 or
the securities laws of any other jurisdiction and may not be
transferred in violation of any such laws, the rules and
regulations thereunder or the provisions of this Warrant.
WARRANT
To Purchase Common Stock of
XXXXXXX I HOLDING CORP.
Warrant No. 1
No. of Common Shares: Up to 38,304
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS 2
SECTION 2. EXERCISE OF WARRANT 5
SECTION 3. TRANSFER, DIVISION AND COMBINATION 7
SECTION 4. ADJUSTMENTS 8
SECTION 5. NOTICES TO WARRANT HOLDERS 10
SECTION 6. NO IMPAIRMENT 11
SECTION 7. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL
AUTHORITY 12
SECTION 8. TAKING OF RECORD STOCK AND WARRANT TRANSFER BOOKS 12
SECTION 9. RESTRICTIONS ON TRANSFERABILITY 12
SECTION 10. LOSS OR MUTILATION 13
SECTION 11. OFFICE OF THE COMPANY 13
SECTION 12. HOLDER NOT DEEMED STOCKHOLDER 13
SECTION 13. MISCELLANEOUS 13
EXHIBITS
Exhibit A - Subscription Form
Exhibit B - Assignment Form
No. of Common Shares: Up to 38,304
Warrant No. 1
ii
WARRANT
To Purchase Common Stock of
XXXXXXX I HOLDING CORP.
THIS IS TO CERTIFY THAT BNS HOLDING, INC., a Delaware
corporation, or registered assigns, is entitled, after the Effective Date (as
hereinafter defined) and prior to the Expiration Date (as hereinafter defined),
to purchase from XXXXXXX I HOLDING CORP., a Delaware corporation (the
"Company"), up to 38,304 shares of the Company's Common Stock (as hereinafter
defined), which number of shares shall be subject to adjustment as provided for
herein, at a purchase price per share equal to the Current Warrant Price as
hereinafter defined, all on the terms and conditions and pursuant to the
provisions hereinafter set forth.
SECTION 1 DEFINITIONS
As used in this Warrant, the following terms have the respective
meanings set forth below:
"AFFILIATE" shall mean any Person (as hereinafter defined)
that controls, is controlled by, or is under common control with, any other
Person. For the purposes of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct the management
and policies of such Person whether through the ownership of voting securities,
by contract or otherwise.
"ANNIVERSARY DATE" shall mean the tenth anniversary of the
issue date of this Warrant.
"BUSINESS DAY" shall mean any day that is not a Saturday or
Sunday or a day on which banks in the State of New York are required to be
closed.
"CLOSING DATE" shall mean the date on which the deliveries
required to properly exercise this Warrant pursuant to Section 2.1(b) of this
Warrant have been made.
"COMMISSION" shall mean the United States Securities and
Exchange Commission or the principal United States federal agency then
administering the Securities Act or other United States federal securities laws.
"COMMON STOCK" shall mean (except where the context otherwise
indicates) the common stock of the Company, par value one-tenth of one cent
($.001) per share, as constituted on the date hereof, and any shares of capital
stock of the Company into which such common stock may thereafter be changed, and
shall also include (i) shares of the Company's capital stock of any other class
(regardless of how denominated) issued to the holders of shares of Common Stock
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upon any reclassification thereof which is not preferred as to dividends or
assets over any other class of shares of the Company's capital stock and which
is not subject to mandatory redemption and (ii) shares of the capital stock of
any successor, resulting, surviving or acquiring corporation (as defined in
Section 4.2) received by or distributed to the holders of common shares of the
Company in the circumstances contemplated by Section 4.2.
"CORPORATION" shall mean Xxxxxxx Industries, Inc., a Missouri
corporation.
"CURRENT WARRANT PRICE" on any date shall be the par value per
share of the Common Stock on such date.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar United States federal statute, and the rules and
regulations of the Commission in effect from time to time thereunder.
"EXERCISE PERIOD" shall have the meaning set forth in Section
2.1.
"EXERCISE QUANTITY" means the lesser of (i) [38,304] and (ii)
the number of shares of Warrant Stock the Transfer of which pursuant to the
Triggering Event giving rise to the exercise of the Warrant results in proceeds
to the Holder that, together with all other Investment Return Proceeds, causes
the Internal Rate of Return to equal, but not exceed, eight percent (8%).
"EXPIRATION DATE" shall mean the earlier of (i) the
Anniversary Date and (ii) the effective date or consummation date of a
Triggering Event.
"HOLDER" shall mean the Person in whose name the Warrant set
forth herein is registered on the books of the Company maintained for such
purpose.
"INTERNAL RATE OF RETURN" means the semi annual, bond
equivalent discount rate which, when used to value all Investment Return
Payments, and taking into account the dates on which such payments were
received, results in such Investment Return Payments having a value equal to the
purchase price of the Original Shares.
"INVESTMENT RETURN PAYMENTS" shall mean all dividends,
distributions and payments received by the Holders with respect to the Original
Shares and the Warrant Stock, including, without limitation, payments received
in connection with the Triggering Event giving rise to the exercise of the
Warrant.
"MAJORITY HOLDERS" shall mean the holders of Warrants
exercisable for in excess of 50% of the aggregate number of shares of Common
Stock then purchasable upon exercise of all Warrants.
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"OTHER PROPERTY" shall have the meaning set forth in Section
4.2.
"ORIGINAL SHARES" shall mean the shares of Common Stock
purchased by BNS Holding, Inc. pursuant to the Stock Purchase Agreement.
"PERSON" shall mean any legal entity or person, including
without limitation, an individual, a partnership, a joint venture, a
corporation, a company, a trust, an estate, an unincorporated organization or a
government or any department or agency thereof.
"RULE 144" shall mean the rule of such number promulgated by
the Commission under the Securities Act and any successor rule thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar United States federal statute, and the rules and
regulations of the Commission in effect from time to time thereunder.
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement of
even date herewith by and among the Company, Xxxxxxx Industries, Inc., AIP/CHC
Holdings, LLC, BNS Holding, Inc., and the "Employees" as defined and referred to
therein.
"STOCK PURCHASE AGREEMENT" shall mean the Agreement of even
date herewith by and between the Company and BNS Holding, Inc.
"TRANSACTION PRICE" means the price per share payable or
distributable with respect to the Common Stock in connection with the Triggering
Event giving rise to the exercise of this Warrant.
"TRANSFER" shall mean any disposition of any Warrant or
Warrant Stock or of any interest in either, which would constitute a sale, trade
or distribution thereof within the meaning of the Securities Act.
"TRANSFER NOTICE" shall have the meaning set forth in Section
9.2.
"TRIGGERING EVENT" shall mean (A) any Sale of the Company, as
such term is defined in the Stockholders' Agreement, or (B) the liquidation,
dissolution or winding-up of the Company.
"TRIGGER PERIOD" shall mean any period beginning on the day
Holder receives, or should have received, notice of a Triggering Event pursuant
to Section 5.3 and ending on the effective date or consummation date of such
Triggering Event.
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"WARRANT" and "WARRANTS" shall mean this Warrant and all
warrants issued upon transfer, division or combination of, or in substitution
for, any thereof. All Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of shares of Common Stock for which
they may be exercised.
"WARRANT PRICE" shall mean an amount equal to the product
obtained by multiplying (i) the number of shares of Common Stock being purchased
upon exercise of this Warrant pursuant to Section 2.1, by (ii) the Current
Warrant Price as of the date of such exercise.
"WARRANT STOCK" shall mean the shares of Common Stock
purchased by the holders of the Warrants upon the exercise thereof.
SECTION 2 EXERCISE OF WARRANT
2.1 MANNER OF EXERCISE.
2.2
(a) From and after the date hereof and until 5:00 P.M. (New York City
time) on the Expiration Date (the "Exercise Period"), Holder may exercise this
Warrant for the number of shares of Common Stock equal to the Exercise Quantity
on any Business Day that falls within both the Exercise Period and a Trigger
Period. This Warrant shall terminate in the event that (A) notice is given to
Holder of a Triggering Event pursuant to Section 5.3, (B) this Warrant is not
exercised in accordance with the terms hereof prior to such Triggering Event
becoming effective or being consummated, and (C) such Triggering Event becomes
effective or is consummated.
(b) In order to exercise this Warrant, as a whole or in part, Holder
shall deliver to the Company at its principal office, 00 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxx 00000, or at the office or agency designated by the Company
pursuant to Sections 12 and 16.2, or at the location of the closing of the
Triggering Event giving rise to such exercise, as specified in the notice of
such Triggering Event delivered to Holder pursuant to Section 5.3, (i) a written
notice of Holder's election to exercise this Warrant, which notice shall specify
the number of shares of Warrant Stock to be purchased or included in the
transaction constituting a Triggering Event (such written notice to be
substantially in the form of Exhibit A hereto and duly executed by Holder or its
agent or attorney), (ii) payment of the Warrant Price by, at such Holder's
option (a) a wire transfer in immediately available funds to an account in a
bank located in New York designated by the Company for such purpose, (b) a
certified or official bank check payable to the order of the Company, or (c)
surrender of certificates then held representing, or deduction from the number
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of shares of Common Stock issuable upon exercise of this Warrant, that number of
shares of Common Stock which has an aggregate Transaction Price on the date of
exercise equal to the Warrant Price and (iii) this Warrant.
(c) Upon receipt of the documents and payment required by the preceding
paragraph 2.1(b), the Company shall, as promptly as practicable, and in any
event prior to the Triggering Event giving rise to the exercise of the Warrant,
execute or cause to be executed and deliver or cause to be delivered to Holder a
certificate or certificates representing the aggregate number of shares,
including fractional shares, of Warrant Stock issuable upon such exercise. The
stock certificate or certificates so delivered shall be in such denomination or
denominations as such Holder shall reasonably request in the notice and shall be
registered in the name of Holder or, subject to Section 9, such other name or
names as shall be designated in the notice.
(d) This Warrant shall be deemed to have been exercised and such
certificate or certificates shall be deemed to have been issued, and Holder or,
subject to Section 2.2 hereof, any other Person so designated to be named
therein shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the cash and/or check or
checks, in the form and amount required by this Section 2.1 and this Warrant, is
received by the Company as described above and all taxes required to be paid by
Holder, if any, pursuant to Section 2.2 prior to the issuance of such shares
have been paid.
2.2 PAYMENT OF TAXES. The Company shall pay all taxes and other
governmental charges that may be imposed with respect to, the original issue or
delivery of all shares of Warrant Stock issuable upon the exercise of this
Warrant pursuant to the terms hereof, unless such tax or charge is imposed by
law upon Holder, in which case such taxes or charges shall be paid by Holder.
The Company shall not be required to pay any tax or other charge imposed in
connection with any transfer of this Warrant or involved in the issuance of any
certificate for shares of Warrant Stock issuable upon exercise of this Warrant
in any name other than that of Holder, and in such case the Company shall not be
required to transfer the Warrant or issue or deliver any stock certificate until
such tax or other charge has been paid or it has been established to the
satisfaction of the Company that no such tax or other charge is due.
2.3 CONTINUED VALIDITY. A holder of shares of Warrant Stock issued upon
the exercise of this Warrant, in whole or in part (other than a holder who
acquires such shares after the same have been publicly sold pursuant to a
Registration Statement under the Securities Act, or sold pursuant to Rule 144),
shall continue to be entitled or bound with respect to such shares to all rights
or obligations to which it would have been entitled or bound as Holder under
Sections 2.4, 9 and 13 of this Warrant.
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2.4 RESTRICTIONS ON WARRANT STOCK. Holder agrees that, upon any
exercise of this Warrant, the Warrant Stock acquired by such Holder will be
subject to the terms and conditions applicable to BNS Securities set forth in
the Stockholders' Agreement.
2.5 NO ADDITIONAL RIGHTS RIGHTS CUMULATIVE. Neither the Company nor any
Affiliate nor any stockholder involved in any proposed transaction that is the
subject of a Triggering Event shall have any obligation to the Holders to
consummate any such proposed transaction once an agreement or agreement in
principle or decision to proceed with respect thereto is reached, whether on the
terms first proposed or revised, or to include any such Holder in, or apprise
any such Holder of, any negotiations or discussions concerning any such proposed
transaction among the prospective parties thereto, except as expressly provided
herein and in the Stockholders' Agreement.
SECTION 3 TRANSFER, DIVISION AND COMBINATION
3.1 TRANSFER. Subject to compliance with Sections 2.2, 3.5, and 9,
transfer of this Warrant and all rights hereunder, as a whole or in part, shall
be registered on the books of the Company to be maintained for such purpose,
upon surrender of this Warrant at the principal office of the Company referred
to in Section 2.1 or the office or agency designated by the Company pursuant to
Section 11, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall,
subject to Section 3.5 and Section 9, execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the denomination
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly assigned in
compliance with Section 3.5 and Section 9, may be exercised by a new Holder for
the purchase of shares of Warrant Stock without having a new Warrant issued.
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3.2 DIVISION AND COMBINATION. Subject to Section 3.5 and Section 9,
this Warrant may be divided or combined with other Warrants upon presentation
hereof at the aforesaid office or agency of the Company, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued, signed by Holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 9, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 EXPENSES. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.4 MAINTENANCE OF BOOKS. The Company agrees to maintain, at its
aforesaid office or agency, books for the registration and the registration of
transfer of the Warrants.
3.5 RESTRICTIONS ON TRANSFER. This Warrant and Warrant Stock may be
transferred in accordance with Section 9 hereto. Any attempted transfer in
violation of the provisions of this Section 3.5 shall be null and void.
3.6
SECTION 4 ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is
exercisable shall be subject to adjustment from time to time as set forth in
this Section 4.
4.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time the
Company shall:
4.2
(a) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
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(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event.
4.2 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
DISPOSITION OF ASSETS. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with another corporation
(where there is a change in or distribution with respect to the Common Stock of
the Company), or sell, transfer or otherwise dispose of all or substantially all
its property, assets or business to another corporation, where this Warrant does
not cease to be exercisable pursuant to Section 2.1 or terminate as a result of
such transaction and, pursuant to the terms of such reorganization,
reclassification, consolidation, merger or disposition of assets, shares of
common stock of the successor, resulting, surviving or acquiring corporation, or
any cash, shares of stock or other securities or property of any nature
whatsoever (including warrants or other subscription or purchase rights) in
addition to or in lieu of common stock of the successor, resulting, surviving or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of Common Stock of the Company, then each Holder shall have the
right thereafter to receive, upon exercise of such Warrant, the number of shares
of common stock of the successor, resulting, surviving or acquiring corporation
or of the Company and Other Property receivable upon or as a result of such
reorganization, reclassification, consolidation, merger or disposition of assets
by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such event. In case of any such reorganization,
reclassification, consolidation, merger or disposition of assets, the successor,
resulting, surviving or acquiring corporation, if any, shall expressly assume
the due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined by resolution of the Board of Directors of
the Company) in order to provide for adjustments of shares of the Common Stock
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 4. For purposes of
this Section 4.2 "common stock of the successor, resulting, surviving or
acquiring corporation" shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock
of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities which
9
are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the happening of a specified event and
any warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.2 shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers or dispositions of
assets.
SECTION 5 NOTICES TO WARRANT HOLDERS
5.1 NOTICE OF ADJUSTMENTS. Whenever the number of shares of Common
Stock for which this Warrant is exercisable shall be adjusted pursuant to
Section 4, the Company shall forthwith prepare a certificate to be executed by
the chief financial officer (or if there is no acting chief financial officer,
the chief executive officer) of the Company setting forth, in reasonable detail,
the event requiring the adjustment and the method by which such adjustment was
calculated, specifying the number of shares of Common Stock for which this
Warrant is exercisable and (if such adjustment was made pursuant to Section 4.2)
describing the number and kind of any other shares of stock or Other Property
for which this Warrant is exercisable, and any change in the purchase price or
prices thereof, after giving effect to such adjustment or change. The Company
shall promptly cause a signed copy of such certificate to be delivered to each
Holder in accordance with Section 13.2. The Company shall keep at its office or
agency designated pursuant to Section 11 copies of all such certificates and
cause the same to be available for inspection at said office during normal
business hours by any Holder or any prospective purchaser of a Warrant
designated by a Holder thereof.
5.2 NOTICE OF CERTAIN CORPORATE ACTION. In case the Company shall
propose (a) to pay any dividend payable in securities of any class to the
holders of its Common Stock, (b) to effect any capital reorganization,
consolidation or merger or (c) to effect the voluntary or involuntary
dissolution, liquidation or winding-up of the Company, the Company shall within
ten days send the Holders a notice of such proposed action, which shall specify
the record date on which a record is to be taken for the purposes of such
dividend, distribution or rights, or the date such issuance or event is to take
place and the date of participation therein by the holders of Common Stock, if
any such date is to be fixed, and shall briefly indicate the effect of such
action on the Common Stock and on the number and kind of any other shares of
stock and on other property, if any, and the number of shares of Common Stock
and other property, if any, purchasable upon exercise of each Warrant and the
Current Warrant Price after giving effect to any adjustment which will be
required as a result of such action. Such notice shall be given as promptly as
possible and, in the case of any action covered by clause (a) above, at least
10
ten (10) Business Days prior to the record date for determining holders of the
Common Stock for purposes of such action and, in the case of any other such
action, at least twenty (20) Business Days prior to the date of the taking of
such proposed action or the date of participation therein by the holders of
Common Stock, whichever shall be the earlier.
5.3 NOTICE OF TRIGGERING EVENT. The Company shall notify each Holder of
any definitive agreement that would result in a Triggering Event not later than
five (5) Business Days after the execution thereof but in no event less than
twenty (20) Business Days prior to the effectuation of any such Triggering
Event, stating the nature and terms of the Triggering Event so that the Holder
is reasonably informed as to the nature and terms of the Triggering Event, the
date on which any such Triggering Event is expected to become effective, and the
location of the closing of such Triggering Event; PROVIDED, HOWEVER, that the
Company shall only be required to give written notice of any change in the
material terms of such Triggering Event five (5) Business Days prior to the
effectuation of such Triggering Event; FURTHER PROVIDED, HOWEVER, that
notwithstanding anything to the contrary contained herein, the Company shall not
be obligated to provide notice of any Triggering Event to the Holders unless and
until it shall reasonably believe that disclosure of the existence of an
agreement in principle respecting the transaction that is the subject of the
Triggering Event would not impair or jeopardize the ability of the parties to
consummate such transaction on the terms proposed.
SECTION 6 NO IMPAIRMENT
6.1 NO AVOIDANCE OF TERMS. The Company shall not by any action,
including, without limitation, amending its articles of incorporation or through
any reorganization, transfer of assets, consolidation, merger or arrangement,
dissolution, issue or sale of securities or any other voluntary 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 actions as may be necessary or appropriate to
protect the rights of Holder against impairment. Without limiting the generality
of the foregoing, the Company will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and non-assessable shares of Common Stock upon the exercise of this Warrant.
11
SECTION 7 RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the date hereof, the Company shall at all times reserve
and keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All shares of Common Stock
which shall be so issuable, when issued upon exercise of this Warrant and
payment therefor in accordance with the terms of this Warrant, shall be duly and
validly issued and fully paid and nonassessable, and not subject to preemptive
rights except as may be provided for herein.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
SECTION 8 TAKING OF RECORD STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to
the holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such holders, the Company will in each such
case take such a record and will take such record as of the close of business on
a Business Day. The Company will not at any time, except upon consolidation,
merger, dissolution, arrangement or winding up of the Company, close its stock
transfer books or Warrant transfer books so as to result in preventing or
delaying the valid exercise or transfer of any Warrant.
SECTION 9 RESTRICTIONS ON TRANSFERABILITY
The Warrants and the Warrant Stock shall be subject to all of the terms
and conditions, including restrictions on Transfer, applicable to BNS Securities
pursuant to the Stockholders' Agreement.
9.1
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SECTION 10 LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity reasonably satisfactory to it and in
case of mutilation upon surrender and cancellation hereof, the Company will
execute and deliver in lieu thereof a new Warrant of like tenor to such Holder;
PROVIDED, HOWEVER, that, in the case of mutilation, if permitted by law, no
indemnity shall be required if this Warrant in identifiable form is surrendered
to the Company for cancellation.
SECTION 11 OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company shall
maintain an office or agency (which may be the principal executive offices of
the Company) where the Warrant may be presented for exercise, registration of
transfer, or division or combination as provided in this Warrant.
SECTION 12 HOLDER NOT DEEMED STOCKHOLDER
Prior to the exercise of the Warrants, no Holder, as such, shall be
entitled to any rights of a stockholder of the Company, including, without
limitation, the right to vote, to receive dividends or other distributions, to
exercise any preemptive right or to receive any notice of meetings of
stockholders or any notice of any proceedings of the Company except as may be
specifically provided for in Sections 2, 5, 9 or otherwise herein.
SECTION 13 MISCELLANEOUS
13.1 NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies.
If the Company fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the Company shall pay
to Holder such amounts as shall be sufficient to cover any reasonable costs and
expenses including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
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13.2 NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Warrant shall be sufficiently given or made if in writing
and either delivered in person with receipt acknowledged or sent by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
13.3
(a) If to any Holder or holder of Warrant Stock, at its last
known address appearing on the books of the Company maintained for such
purpose.
(b) If to the Company at:
Xxxxxxx I Holding Corp.
c/o BNS Holding, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President and
Chief Executive Officer
Fax: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, five Business Days after the same shall
have been deposited in the United States mail (registered or certified with
return receipt requested), two Business Days after the same shall have been sent
by express courier service and on the same Business Day when sent before 5:00
P.M., recipient's time, and the next Business Day when sent later than such
time, after same shall be sent by facsimile transmission or telex, provided
receipt thereof is acknowledged. Failure or delay in delivering copies of any
notice, demand, request, approval, declaration, delivery or other communication
to the person designated above to receive a copy shall in no way adversely
affect the effectiveness of such notice, demand, request, approval, declaration,
delivery or other communication.
13.4 REMEDIES Subject to any limitations on remedies contained in this
Agreement, nothing contained herein is intended or shall be construed to limit
the remedies which any party may have against the other related to the Warrant
and Warrant Stock in the event of a breach of or default under this Agreement,
it being intended that any remedies shall be cumulative and not exclusive.
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13.5 SUCCESSORS AND ASSIGNS. Subject to the provisions of Sections 3.1,
3.5 and 9, this Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of all Holders from time to time of this Warrant, and shall
be enforceable by any such Holder.
13.6 AMENDMENT. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Majority Holders, provided that no such Warrant may be modified or
amended to reduce the number of shares of Common Stock for which such Warrant is
exercisable or to increase the price at which such shares may be purchased upon
exercise of such Warrant (before giving effect to any adjustment as provided
therein) without the prior written consent of the Holder thereof.
13.7 SEVERABILITY. Each provision of this Warrant is declared to be a
separate and distinct covenant and to be severable from all other such
provisions hereof; wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Warrant.
13.8 HOLDER'S OBLIGATIONS. By acceptance of this Warrant, Holder agrees
to be bound by the provisions of this Warrant.
13.9 HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
13.10 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE APPLICABLE THEREIN WITHOUT REGARD TO THE PROVISIONS THEREOF
RELATING TO CONFLICT OF LAWS.
15
13.11 ENTIRE AGREEMENT. This Warrant, the Stock Purchase Agreement and
the Stockholders' Agreement constitute the entire agreement respecting the
subject matter hereof and hereby supersede any and all other negotiations,
understandings, written and verbal agreements relating to the subject matter
hereof.
16
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and its corporate seal to be impressed hereon.
XXXXXXX I HOLDING CORP.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
17
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for the purchase of shares of Common Stock of XXXXXXX I HOLDING
CORP., and herewith makes payment therefor, all at the price and on the terms
and conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
_______________________________________ whose address is
______________________________________ and, if such shares of Common Stock shall
not include all of the shares of Common Stock issuable as provided in this
Warrant, that a new Warrant of like tenor and date for the balance of the shares
of Common Stock issuable hereunder be delivered to the undersigned.
Guarantee of Signature:
-----------------------------
(Name of Registered Owner)
By:
----------------------
Name:
--------------------- -------------------------------
(Signature of Registered Owner)
Title:
-------------------
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
B-1
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
No. of Shares of
Name and Address of Assignee Common Stock
---------------------------- ------------
and does hereby irrevocably constitute and appoint _______________
attorney-in-fact to register such transfer on the books of XXXXXXX I HOLDING
CORP. maintained for the purpose, with full power of substitution in the
premises.
Dated:
------------------- -------------------------------
Print Name
-------------------------------
Signature
-------------------------------
Witness
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
B-2
