Exhibit 4.7
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS. THIS WARRANT AND THE UNDERLYING SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR PLEDGED EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF
THIS WARRANT AGREEMENT.
Warrant No. 1
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of October 11, 2001, between ON Semiconductor
Corporation, a Delaware corporation (the "Company"), and Xxxx & Company, Inc., a
Massachusetts corporation (the "Holder").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in partial consideration for certain consulting services provided
and to be provided to the Company by the Holder in the form of various projects
pursuant to a consulting arrangement between the parties, the Company is
entering into this Warrant Agreement (the "Warrant"), which Warrant entitles the
Holder to purchase, upon the terms and conditions hereinafter set forth, shares
of the Company's common stock, par value $.01 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
ARTICLE I
GRANT OF WARRANT
Subject to the terms of this Warrant, the Holder is entitled to purchase
1,250,000 shares of Common Stock at a price per share equal to the Exercise
Price per share (as defined in Section 2.1 hereof), subject to adjustments as
provided for in Section 2.5. The rights, preferences and other terms of the
Common Stock are as set forth in the Company's Amended and Restated Certificate
of Incorporation, as in effect as of the date of issuance hereof.
ARTICLE II
EXERCISE OF WARRANT; EXERCISE PRICE
Section 2.1 Exercise Price. This Warrant shall be fully vested and
exercisable as of the date hereof. This Warrant shall entitle the Holder,
subject to the provisions of this Warrant, to purchase from the Company up to
the number of shares of Common Stock provided for in
Article I, at a purchase price of $1.90 per share (subject to adjustment in
accordance with Section 2.5) (the "Exercise Price"), which shall be payable in
full in cash, by certified check or wire transfer in immediately available funds
at the time of exercise of this Warrant.
Section 2.2 Right to Exercise the Warrant. Any portion of this Warrant may
be exercised in full or in part, at any time or from time to time during the
period from the date hereof through October 10, 2005 (the "Exercise Period"). No
portion of this Warrant may be exercised after the expiration of the Exercise
Period.
Section 2.3 Procedure for Exercising the Warrant. The Holder may exercise
this Warrant, from time to time, by executing the Form of Election attached
hereto as Exhibit A and delivering it to the Company and tendering the requisite
aggregate Exercise Price for the number of whole shares of Common Stock being
purchased pursuant to this Warrant to the Company on any business day during
normal business hours (each date of receipt of such Form of Election and
aggregate Exercise Price by the Company is hereinafter referred to as an
"Exercise Date").
Section 2.4 Issuance of Shares of Common Stock. As soon as practicable
after the applicable Exercise Date, the Company shall (provided that it has
received the Form of Election duly executed accompanied by payment of the
Exercise Price pursuant to Section 2.1 hereof for each share of Common Stock to
be purchased), promptly cause certificates for the number of shares of Common
Stock purchased pursuant to the exercise of this Warrant to be delivered to or
upon the order of the Holder, registered in such name as may be designated by
such holder; provided that if the Common Stock is to be registered in the name
of any entity or person other than the Holder, the Company may require evidence
of compliance by the Holder with all applicable securities laws.
Section 2.5 Adjustment of Number of Shares.
(a) Reclassification, Consolidation or Merger. In case of any
reclassification or change of outstanding securities of the class issuable upon
exercise of the Warrants, or in case of any consolidation or merger of the
Company with or into another corporation or entity, other than a consolidation
or merger with another corporation or entity in which the Company is the
continuing corporation and which does not result in any reclassification,
conversion or change of outstanding securities issuable upon exercise of the
Warrants, or in case of any sale of all or substantially all of the assets of
the Company, the Company, or such successor or purchasing corporation, as the
case may be, shall execute a new warrant agreement substantially in the form
hereof (the "New Warrant Agreement"), providing that the Holder of this Warrant
Agreement shall have the right to exercise such new warrant and procure upon
such exercise, in lieu of each share of Common Stock theretofore issuable upon
exercise of the Warrant, the kind and amount of shares of stock, other
securities, money and property that the Holder of the Warrant would have been
entitled to receive with respect to one share of Common Stock had the Warrant
been exercised immediately prior to such reclassification, conversion, change,
consolidation, or merger by a holder of one share of Common Stock. Such New
Warrant Agreement shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
2.5. The provisions of this Section 2.5(a) shall similarly apply to successive
reclassifications, changes, consolidations, mergers and sales.
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(b) Subdivisions, Combinations and Stock Dividends. If the Company
at any time while this Warrant Agreement is outstanding and unexpired shall
subdivide or combine its Common Stock, or shall pay a dividend with respect to
Common Stock payable in, or make any other distribution with respect to its
Common Stock consisting of, shares of Common Stock, then the Exercise Price
shall be adjusted, from and after the date of determination of shareholders
entitled to receive such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such date of
determination by a fraction (i) the numerator of which shall be the total number
of shares of Common Stock outstanding immediately prior to such dividend or
distribution and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution.
2.6 Fractional Interests. The Company is not required to issue fractional
shares of Common Stock on the exercise of a Warrant. If any fraction of a share
of Common Stock would, except for the provisions of this Section 2.6, be
issuable on the exercise of a Warrant (or specified portion thereof), the
Company will in lieu thereof pay an amount in cash equal to the then Current
Market Price (as defined in this Section hereof) multiplied by such fraction.
For purposes of this Warrant, the term "Current Market Price" means (i) if the
Common Stock is listed for quotation on the Nasdaq National Market or the Nasdaq
SmallCap Market or on a national securities exchange, the average for the 10
consecutive trading days immediately preceding the date in question of the daily
per share closing prices of the Common Stock as quoted by the Nasdaq National
Market or the Nasdaq SmallCap Market or on the principal stock exchange on which
it is listed, as the case may be, whichever is the higher, or (ii) if the Common
Stock is traded in the over-the-counter market and is not listed for quotation
on the Nasdaq National Market or the Nasdaq SmallCap Market nor on any national
securities exchange, the average of the per share closing bid prices of the
Common Stock on the 10 consecutive trading days immediately preceding the date
in question, as reported by Nasdaq or an equivalent generally accepted reporting
service. The closing price referred to in clause (i) above shall be the last
reported sale price or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices, in either case as
quoted by the Nasdaq National Market or the Nasdaq SmallCap Market or on the
national securities exchange on which the Common Stock is then listed. For
purposes of clause (ii) above, if trading in the Common Stock is not reported by
Nasdaq, the bid price referred to in said clause shall be the lowest bid price
as reported on the OTC Bulletin Board or in the "pink sheets" published by
National Quotation Bureau, Incorporated.
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ARTICLE III
RESERVATION AND AVAILABILITY OF COMMON STOCK
Section 3.1 Reservation of Common Stock. The Company covenants and agrees
that it will cause to be kept available out of its authorized and unissued
Common Stock issuable thereon, the number of shares of Common Stock that will be
sufficient to permit the exercise in full of this Warrant.
Section 3.2 Common Stock to be Duly Authorized and Issued, Fully Paid and
Non-assessable. The Company covenants and agrees that it will take all such
action as may be reasonably necessary to ensure that all shares of Common Stock
delivered upon exercise of the Warrant and in compliance with this Warrant
shall, at the time of delivery of the certificates for such shares, be duly and
validly authorized and issued shares.
Section 3.3 Common Stock Record Date. Each person or entity in whose name
any certificate for shares of Common Stock is issued upon the exercise of this
Warrant shall for all purposes be deemed to have become the holder of record of
the shares of Common Stock represented thereby on, and such certificate shall be
dated, the date upon which the Form of Election was duly executed and payment of
the aggregate Exercise Price was made pursuant to Section 2.1 hereof. Prior to
the exercise of this Warrant, the Holder shall not be entitled to any rights of
a stockholder of the Company with respect to the shares of Common Stock for
which this Warrant shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
ARTICLE IV
HOLDER REPRESENTATIONS, WARRANTIES AND COVENANTS
The Holder represents and warrants to and covenants with the Company, as
follows:
Section 4.1 Representations as to Purchase for Own Account, Registration,
Etc. It is acquiring the Warrant and the Common Stock issuable upon exercise of
the Warrant (collectively, the "Securities") for investment for its own account
and not with the view to, or for resale in connection with any distribution of
the Securities or any part thereof, has no present intention of selling (in
connection with a distribution or otherwise), granting any participation in, or
otherwise distributing the same. It understands that the Securities have not
been registered under the Securities Act of 1933, as amended (the "Securities
Act") or any state blue sky laws, and is issued through specified exemptions
from the registration provisions of the Securities Act and such laws. It
acknowledges that the Securities must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. It has been advised or is aware of the provisions of
Rule 144 promulgated under the Securities Act, which permits the resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions and that such Rule may not be available for resale of the shares
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purchased hereunder. The Holder is an "accredited investor" as such term is
defined in Rule 501 under the Securities Act.
Section 4.2 Information and Sophistication. The Holder acknowledges that
it has received all the information it has requested from the Company and
considers necessary or appropriate for deciding whether to acquire the Warrant.
The Holder represents that it has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Warrant and to obtain any additional information necessary to
verify the accuracy of the information given the Holder. The Holder further
represents that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risk of this investment.
Section 4.3 Restrictions on Transferability. This Warrant shall not be
transferable, except upon the conditions specified in and in accordance with the
terms of Article IV and Section 5.2 hereof.
Section 4.4 Restrictive Legend. Each certificate representing shares of
the Company's Common Stock issuable upon exercise of the Warrant or any other
securities issued in respect of the Common Stock issued upon exercise of the
Warrant, upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall be stamped or otherwise imprinted with a
legend in substantially the following form (in addition to any legend required
under applicable state securities laws):
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THESE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE
REGISTRATION AND DELIVERY REQUIREMENTS OF THE SECURITIES ACT.
Section 4.5 Restrictions on, and Notice of, Proposed Transfers. The Holder
shall not make any disposition or transfer of all or any portion of the
Securities, except if such disposition or transfer is made in compliance with
the Securities Act, and applicable state or other securities laws. The Holder
agrees that prior to any proposed transfer of the Warrant, the Holder shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall be accompanied by a written opinion of legal
counsel, addressed to the Company and reasonably satisfactory in form and
substance to the Company's counsel, to the effect that the proposed transfer of
the Warrant may be effected without registration under the Securities Act or
under any applicable state or other securities laws.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. Notices or demands relating to this Warrant shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows, or telexed, telecopied, or delivered by
nationally-recognized overnight or other courier:
If to the Holder: Xxxx & Company, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Fax: 000-000-0000
If to the Company: ON Semiconductor Corporation
0000 Xxxx XxXxxxxx Xxxx, Law Department, M/D A700
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Section 5.2 Successors and Assigns. Subject to Article IV, this Warrant
may be sold, assigned or otherwise transferred by Holder to a corporation or
partnership controlling, controlled by or under common control with Holder upon
advanced written notice to the Company. Except as set forth in the preceding
sentence, this Warrant may not be sold, assigned or otherwise transferred by the
Holder without the prior written consent of the Company. Except as contemplated
in Section 2.5(a), this Warrant may not be sold, assigned or otherwise
transferred by the Company without the prior written consent of the Holder. This
Warrant shall be binding upon and enforceable by, and shall inure to the benefit
of, the parties hereto and their respective successors and permitted assigns.
Section 5.3 DELAWARE CONTRACT. THIS AGREEMENT AND THE WARRANT, AND ALL
QUESTIONS RELATING TO THE INTERPRETATION, CONSTRUCTION AND ENFORCEABILITY OF
THIS AGREEMENT AND THE WARRANT, SHALL BE GOVERNED IN ALL RESPECTS BY THE
SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW.
Section 5.4 Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Warrant may not be amended, modified or supplemented,
other than by a written instrument executed by the Company and the Holder.
Section 5.5 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Holder shall be enforceable to the fullest extent permitted by law.
Section 5.6 Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of loss,
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theft, or destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and substance to the Company or, in the case of mutilation,
on surrender and cancellation of this Warrant, the Company shall execute and
deliver, in lieu of this Warrant, a new warrant of like tenor and amount.
Section 5.7 Counterparts. This Warrant may be executed in counterparts and
each of such counterparts will for all purposes be deemed to be an original, and
all such counterparts will together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be duly
executed and delivered, all as of the date and year first above written.
COMPANY
ON SEMICONDUCTOR CORPORATION, a
Delaware corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: XXXXX XXXXXXXX
Title: Sr. V.P. & CFO
HOLDER
XXXX & COMPANY, INC.,
a Massachusetts corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: XXXXX XXXXXXXX
Title: Vice President/Officer
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EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant Agreement)
To ON Semiconductor, a Delaware corporation
The undersigned hereby irrevocably elects to exercise the Warrant
represented by the Warrant Agreement dated as of October 11, 2001 to purchase
___________ shares of Common Stock issuable upon the exercise of such Warrant
and will tender the Exercise Price for such shares as provided in the attached
agreement and requests that certificates for such shares be issued in the name
of:
___________________________________________
(Please print name and address)
Please issue a new warrant for the unexercised portion of the attached Warrant
in the name of the undersigned.
Please insert social security or other identifying number _____________
Dated: ______, 200_
____________________________________
By: ________________________________
Name:
Title:
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