VIKING MERGER SUB, INC.
FORM OF WARRANT FOR THE PURCHASE OF
COMMON SHARES OF VIKING MERGER SUB, INC.
NO. __ WARRANT TO PURCHASE
______ SHARES
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET
FORTH IN THE INVESTORS' AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH
ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY OR ANY
SUCCESSOR THERETO.
FOR VALUE RECEIVED, VIKING MERGER SUB, INC., a Minnesota corporation (the
"COMPANY"), hereby certifies that _________________, its successor or permitted
assigns (the "Holder"), is entitled, subject to the provisions of this Warrant,
to purchase from the Company, at the times specified herein, _____ fully paid
and non-assessable shares of common stock of the Company, par value $ 0.01 per
share (the "WARRANT SHARES"), at a purchase price per share equal to the
Exercise Price (as hereinafter defined). The number of Warrant Shares to be
received upon the exercise of this Warrant and the price to be paid for a
Warrant Share are subject to adjustment from time to time as hereinafter set
forth.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following meanings:
"AFFILIATE" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"COMMON SHARE" means a Common Share, par value $0.01, of the Company or
other capital stock of the Company that is not preferred as to liquidation or
dividends.
"DULY ENDORSED" means duly endorsed in blank by the Person or Persons in
whose name a stock certificate is registered or accompanied by a duly executed
stock assignment separate from the certificate with the signature(s) thereon
guaranteed by a commercial bank or trust company or a member of a national
securities exchange or of the National Association of Securities Dealers, Inc.
"EXERCISE PRICE" means $0.01 per Warrant Share, as such Exercise Price is
adjusted from time to time as provided herein.
"EXPIRATION DATE" means November 15, 2011 at 5:00 p.m. New York City
time.
"FAIR MARKET VALUE" means, with respect to one Common Share on any date,
the Current Market Price Per Common Share for purposes of paragraph (h)(6)
hereof.
"INVESTORS AGREEMENT" means the Investors Agreement dated as of the date
hereof among Viking Merger Sub, Inc., DLJ Merchant Banking Partners II, L.P.,
DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ Funding II, Inc., DLJ EAB
Partners, L.P., DLJ ESC II L.P., DLJ First ESC, L.P., DLJ Investment Partners
II, L.P., DLJ Investment Funding II, Inc. and the other stockholders listed on
the signature pages thereto.
"PERSON" means an individual, partnership, corporation, limited liability
company, trust, joint stock company, association, joint venture, or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"PRINCIPAL HOLDERS" means, on any date, the holders of at least 25% of
the Warrants.
"SENIOR NOTE WARRANTS" means the warrants attached to the Senior Discount
Notes due 2009 of Xxxxxxx Corporation issued on or about November 23, 1999.
"TRANSFER" shall have the meaning assigned to such term in the Investors'
Agreement.
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"WARRANTS" means the Warrants issued to the subscriber under the
Subscription Agreement dated as of the date hereof among the Company and the
subscribers listed on the signature pages thereof.
(2) Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Investors' Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant in
whole or in part at any time, or from time to time, until the
Expiration Date or, if such day is not a Business Day, then on the
next succeeding day that shall be a Business Day. To exercise
this Warrant, the Holder shall execute and deliver to the Company
a Warrant Exercise Subscription Form forming a part hereof duly
executed by the Holder and payment of the applicable Exercise
Price for each Warrant Share subject to such exercise. Upon such
delivery and payment, the Holder shall be deemed to be the holder
of record of the Warrant Shares subject to such exercise,
notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Warrant
Shares shall not then be actually delivered to the Holder.
Notwithstanding anything herein to the contrary, in lieu of
payment in cash of the applicable Exercise Price, the Holder may
elect (i) to receive upon exercise of this Warrant, the number of
Warrant Shares reduced by a number of Common Shares having the
aggregate Fair Market Value equal to the aggregate Exercise Price
for the Warrant Shares, (ii) to deliver as payment, in whole or in
part of the aggregate Exercise Price, Common Shares having the
aggregate Fair Market Value equal to the aggregate Exercise Price
for the Warrant Shares in respect of which the Exercise Price is
not being paid in cash or (iii) to deliver as payment, in whole or
in part of the aggregate Exercise Price, such number of Warrants
which, if exercised, would result in a number of Common Shares
having an aggregate Fair Market Value equal to the aggregate
Exercise Price for the Warrant Shares in respect of which the
Exercise Price is not being paid in cash. Notwithstanding
anything to the contrary in this paragraph (b)(1), if the
aggregate Fair Market Value of the Common Shares applied or
delivered pursuant to (i), (ii) or (iii) above exceeds the
aggregate Exercise Price, in no event shall the Holder be entitled
to receive any amounts from he Company.
(2) The Exercise Price may be paid in cash or by certified
or official bank check or bank cashier's check payable to the
order of the Company or by any combination of such cash or check.
The
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Company shall pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or
delivery of the Warrant Shares.
(3) If the Holder exercises this Warrant in part, this
Warrant Certificate shall be surrendered by the Holder to the
Company and a new Warrant Certificate of the same tenor and for
the unexercised number of Warrant Shares shall be executed by the
Company. The Company shall register the new Warrant Certificate
in the name of the Holder or in such name or names of its
transferee pursuant to paragraph (f) hereof as may be directed in
writing by the Holder and deliver the new Warrant Certificate to
the Person or Persons entitled to receive the same.
(4) Upon surrender of this Warrant Certificate in
conformity with the foregoing provisions, the Company shall
transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of Common Shares or other securities or
property (including any money) to which the Holder is entitled,
registered or otherwise placed in, or payable to the order of, the
name or names of the Holder or such transferee as may be directed
in writing by the Holder, and shall deliver such evidence of
ownership and any other securities or property (including any
money) to the Person or Persons entitled to receive the same,
including an amount in cash in lieu of any fraction of a share as
provided in paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing Common Shares issued
pursuant to this Warrant shall bear a legend substantially in the form of the
legend set forth on the first page of this Warrant Certificate to the extent
that and for so long as such legend is required pursuant to the Investors'
Agreement or applicable securities laws.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of this Warrant
such number of its authorized but unissued Common Shares or other securities of
the Company from time to time issuable upon exercise of this Warrant as will be
sufficient to permit the exercise in full of this Warrant. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale and free and
clear of all preemptive rights, except to the extent set forth in the Investors'
Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of
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delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price Per Common Share (as defined in paragraph (h)(6)) at
the date of such exercise.
The Company further agrees that it will not change the par value of the
Common Shares to any higher par value which exceeds the Exercise Price then in
effect, and will reduce the par value of the Common Shares upon any event
described in paragraph (h) that (i) provides for an increase in the number of
Common Shares subject to purchase upon exercise of this Warrant, in inverse
proportion to and effective at the same time as such number of shares is
increased, but only to the extent that such increase in the number of shares,
together with all other such increases after the date hereof, causes the
aggregate Exercise Price of all Warrants (without giving effect to any exercise
thereof) to be greater than $3,442.63 or (ii) would, but for this provision,
reduce the Exercise Price below the par value of the Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to the
provisions of the Investors' Agreement, including the applicable
restrictions on transfer. Each taker and holder of this Warrant
Certificate by taking or holding the same, consents and agrees
that the registered holder hereof may be treated by the Company
and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled
to exercise the rights represented hereby. The Holder, by its
acceptance of this Warrant, will be subject to the provisions of,
and will have the benefits of, the Investors' Agreement to the
extent set forth therein, including the applicable transfer
restrictions and the registration rights included therein.
(2) Subject to compliance with the transfer restrictions
set forth in the Investors' Agreement and with applicable
securities laws, upon surrender of this Warrant to the Company,
together with the attached Warrant Assignment Form duly executed,
the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee or assignees named in such
instrument of assignment and, if the Holder's entire interest is
not being assigned, in the name of the Holder and this Warrant
shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the loss, theft, destruction or mutilation of this Warrant Certificate,
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and (in the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant
Certificate, if mutilated, the Company shall execute and deliver a new
Warrant Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and the
number of Common Shares for which this Warrant may be exercised shall be subject
to adjustment from time to time upon the occurrence of certain events as
provided in this paragraph (h).
(1) In case the Company shall at any time after the date
hereof (i) declare a dividend or make a distribution on Common
Shares payable in Common Shares, (ii) subdivide or split the
outstanding Common Shares, (iii) combine or reclassify the
outstanding Common Shares into a smaller number of shares, or (iv)
issue any shares of its capital stock in a reclassification of
Common Shares (including any such reclassification in connection
with a consolidation or merger in which the Company is the
continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or distribution or of the
effective date of such subdivision, split, combination or
reclassification shall be proportionately adjusted so that, giving
effect to paragraph (h)(9), the exercise of this Warrant after
such time shall entitle the holder to receive the aggregate number
of Common Shares or other securities of the Company (or shares of
any security into which such shares of Common Stock have been
reclassified pursuant to clause (iii) or (iv) above) which, if
this Warrant had been exercised immediately prior to such time,
such holder would have owned upon such exercise and been entitled
to receive by virtue of such dividend, distribution, subdivision,
split, combination or reclassification. Such adjustment shall be
made successively whenever any event listed above shall occur.
(2) In case the Company shall issue or sell any Common
Shares (other than Common Shares issued (I) upon exercise of the
Warrants or the Senior Note Warrants, (II) pursuant to any stock
option, co-investment or other stock related employee compensation
plan of the Company approved by the Company's Board of Directors,
(III) upon exercise or conversion of any security the issuance of
which caused an adjustment under paragraphs (h)(3) or (h)(4)
hereof or (IV) in any bona fide registered public offering), the
Exercise Price to be in effect after such issuance or sale shall
be determined by multiplying the Exercise Price in effect
immediately prior to such issuance or sale by a fraction, the
numerator of which shall be the sum of (x) the
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number of Common Shares outstanding immediately prior to the
time of such issuance or sale multiplied by the Current Market
Price Per Common Share immediately prior to such issuance or
sale and (y) the aggregate consideration, if any, to be
received by the Company upon such issuance or sale, and the
denominator of which shall be the product of the aggregate
number of Common Shares outstanding immediately after such
issuance or sale and the Current Market Price Per Common Share
immediately prior to such issuance or sale but in no event will
such fraction exceed 1. In case any portion of the
consideration to be received by the Company shall be in a form
other than cash, the fair market value of such noncash
consideration shall be utilized in the foregoing computation.
Such fair market value shall be determined by the Board of
Directors of the Company; PROVIDED that if the Principal
Holders shall object to any such determination, the Board of
Directors shall retain an independent appraiser reasonably
satisfactory to the Principal Holders to determine such fair
market value. The Holder shall be notified promptly of any
consideration other than cash to be received by the Company and
furnished with a description of the consideration and the fair
market value thereof, as determined by the Board of Directors.
(3) In case the Company shall fix a record date for the
issuance of rights, options or warrants to the holders of its
Common Shares or other securities entitling such holders to
subscribe for or purchase for a period expiring within 60 days of
such record date Common Shares (or securities convertible into
Common Shares) at a price per Common Share (or having a conversion
price per share of Common Share, if a security convertible into
Common Shares) less than the Current Market Price Per Common Share
on such record date, the maximum number of Common Shares issuable
upon exercise of such rights, options or warrants (or conversion
of such convertible securities) shall be deemed to have been
issued and outstanding as of such record date and the Exercise
Price shall be adjusted pursuant to paragraph (h)(2) hereof, as
though such maximum number of Common Shares had been so issued for
the aggregate consideration payable by the holders of such rights,
options, warrants or convertible securities prior to their receipt
of such Common Shares. In case any portion of such consideration
shall be in a form other than cash, the fair market value of such
noncash consideration shall be determined as set forth in
paragraph (h)(2) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the event
that such rights, options or warrants are not so issued or expire
unexercised, or in the event
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of a change in the number of Common Shares to which the holders
of such rights, options or warrants are entitled (other than
pursuant to adjustment provisions therein which are no more
favorable in their entirety than those contained in this
paragraph (h)), the Exercise Price shall again be adjusted to
be the Exercise Price which would then be in effect if such
record date had not been fixed, in the former event, or the
Exercise Price which would then be in effect if such holder had
initially been entitled to such changed number of Common
Shares, in the latter event.
(4) In case the Company shall sell or issue rights, options
(other than options issued pursuant to a plan described in clause
II of paragraph (h)(2)) or warrants (other than Senior Notes
Warrants) entitling the holders thereof to subscribe for or
purchase Common Shares (or securities convertible into Common
Shares) or shall issue convertible securities and the price per
Common Share of such rights, options, warrants or convertible
securities (including, in the case of rights, options, warrants or
convertible securities, the price at which they may be exercised
or converted) is less than the Current Market Price Per Common
Share, the maximum number of Common Shares issuable upon exercise
of such rights, options or warrants or upon conversion of such
convertible securities shall be deemed to have been issued and
outstanding as of the date of such sale or issuance, and the
Exercise Price shall be adjusted pursuant to paragraph (h)(2)
hereof as though such maximum number of Common Shares had been so
issued for an aggregate consideration equal to the aggregate
consideration paid for such rights, options, warrants or
convertible securities and the aggregate consideration payable by
the holders of such rights, options, warrants or convertible
securities prior to their receipt of such Common Shares. In case
any portion of such consideration shall be in a form other than
cash, the fair market value of such noncash consideration shall be
determined as set forth in paragraph (h)(2) hereof. Such
adjustment shall be made successively whenever such rights,
options, warrants or convertible securities are issued; and in the
event that such rights, options or warrants expire unexercised, or
in the event of a change in the number of shares of Common Shares
to which the holders of such rights, options, warrants or
convertible securities are entitled (other than pursuant to
adjustment provisions therein which are no more favorable in their
entirety than those contained in this paragraph (h)), the Exercise
Price shall again be adjuted to be the Exercise Price which would
then be in effect if such rights, options, warrants or convertible
securities had not been issued, in the former event, or the
Exercise Price which would then be in effect if such holders
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had initially been entitled to such changed number of Common
Shares, in the latter event. No adjustment of the Exercise
Price shall be made pursuant to this paragraph (h)(4) to the
extent that the Exercise Price shall have been adjusted
pursuant to paragraph (h)(3) upon the setting of any record
date relating to such rights, options, warrants or convertible
securities and such adjustment fully reflects the number of
Common Shares to which the holders of such rights, options,
warrants or convertible securities are entitled and the price
payable therefor.
(5) In case the Company shall fix a record date for the
making of a distribution to holders of Common Shares (including
any such distribution made in connection with a consolidation or
merger, other than the merger referred to in paragraph (o), in
which the Company is the continuing corporation) of evidences of
indebtedness, cash, assets or other property (other than dividends
payable in Common Shares or rights, options or warrants referred
to in, and for which an adjustment is made pursuant to, paragraphs
(h)(3) or (h)(4) hereof), the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price
Per Common Share on such record date, less the fair market value
(determined as set forth in paragraph (h)(2) hereof) of the
portion of the assets, cash, other property or evidence of
indebtedness so to be distributed which is applicable to one
Common Share, and the denominator of which shall be such Current
Market Price Per Common Share. Such adjustments shall be made
successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Exercise Price
shall again be adjusted to be the Exercise Price which would then
be in effect if such record date had not been fixed.
(6) For the purpose of any computation under paragraph (e)
or paragraph (h)(2), (3), (4) or (5) hereof, on any determination
date, the Current Market Price Per Common Share shall be deemed to
be the average (weighted by daily trading volume) of the Daily
Prices (as defined below) per Common Share for the 20 consecutive
trading days ending three days prior to such date. "DAILY PRICE"
means (1) if the Common Shares then are listed and traded on the
New York Stock Exchange, Inc. ("NYSE"), the closing price on such
day as reported on the NYSE Composite Transactions Tape; (2) if
the Common Shares then are not listed and traded on the NYSE, the
closing price on such day as reported by the principal national
securities exchange on which the shares
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are listed and traded; (3) if the Common Shares then are not
listed and traded on any such securities exchange, the last
reported sale price on such day on the National Market of the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"); (4) if the Common Shares then are
not listed and traded on any such securities exchange and not
traded on the NASDAQ National Market, the average of the
highest reported bid and lowest reported asked price on such
day as reported by NASDAQ; or (5) if such shares are not listed
and traded on any such securities exchange, not traded on the
NASDAQ National Market and bid and asked prices are not
reported by NASDAQ, then the average of the closing bid and
asked prices, as reported by The Wall Street Journal for the
over-the-counter market. If on any determination date the
Common Shares are not quoted by any such organization, the
Current Market Price Per Common Share shall be the fair market
value of such shares on such determination date as determined
by the Board of Directors, without regard to considerations of
the lack of liquidity, applicable regulatory restrictions or
any of the transfer restrictions or other obligations imposed
on such shares set forth in the Investors' Agreement. If the
Principal Holders shall object to any determination by the
Board of Directors of the Current Market Price Per Common
Share, the Current Market Price Per Common Share shall be the
fair market value per Common Share as determined by an
independent appraiser retained by the Company at its expense
and reasonably acceptable to the Principal Holders. For
purposes of any computation under this paragraph (h), the
number of Common Shares outstanding at any given time shall not
include shares owned or held by or for the account of the
Company.
(7) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at
least one percent in such price; PROVIDED that any adjustments
which by reason of this paragraph (h)(7) are not required to be
made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this paragraph (h)
shall be made to the nearest one hundredth of a cent or to the
nearest hundredth of a share, as the case may be.
(8) In the event that, at any time as a result of the
provisions of this paragraph (h), the holder of this Warrant upon
subsequent exercise shall become entitled to receive any shares of
capital stock or other securities of the Company other than Common
Shares, the number of such other shares so receivable upon
exercise of this Warrant shall thereafter be subject to
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adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained herein.
(9) Upon each adjustment of the Exercise Price as a result
of the calculations made in paragraphs (h)(1), (2), (3), (4) or
(5) hereof, the number of shares for which this Warrant is
exercisable immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the adjusted
Exercise Price, that number of Common Shares obtained by (i)
multiplying the number of shares covered by this Warrant
immediately prior to this adjustment of the number of shares by
the Exercise Price in effect immediately prior to such adjustment
of the Exercise Price and (ii) dividing the product so obtained by
the Exercise Price in effect immediately after such adjustment of
the Exercise Price.
(10) The Company shall notify all Holders of the fixing of
a record date for the purpose of payment of a cash dividend to
holders of Common Shares as soon as reasonably practicable, but in
no event less than 20 days prior to any such record date.
(11) Not less than 10 nor more than 30 days prior to the
record date or effective date, as the case may be, of any action
which requires or might require an adjustment or readjustment
pursuant to this paragraph (h), the Company shall forthwith file
in the custody of this Secretary or an Assistant Secretary at its
principal executive office and with its stock transfer agent or
its warrant agent, if any, an officers' certificate showing the
adjusted Exercise Price determined as herein provided, setting
forth in reasonable detail the facts requiring such adjustment and
the manner of computing such adjustment. Each such officers'
certificate shall be signed by the chairman, president or chief
financial officer of the Company and by the secretary or any
assistant secretary of the Company. Each such officers'
certificate shall be made available at all reasonable times for
inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to paragraph (f) and the Company shall,
forthwith after each such adjustment, mail a copy, by first-class
mail, of such certificate to the Holder.
(12) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph (h)(5)
otherwise required thereof, on the date of exercise of the
Warrants, the evidences of indebtedness, other securities, cash,
property or other assets which such Holder would have been
entitled to receive if it had exercised its Warrants for Common
Shares immediately prior
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to the record date with respect to such distribution. The
Holder may exercise its option under this paragraph (h)(12) by
delivering to the Company a written notice of such exercise
within seven days of its receipt of the certificate of
adjustment required pursuant to paragraph (h)(11) to be
delivered by the Company in connection with such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding Common Shares) or any sale or transfer of all or substantially all
of the assets of the Company or of the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
the Holder shall have the right thereafter to exercise this Warrant for the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of Common
Shares for which this Warrant may have been exercised immediately prior to such
consolidation, merger, sale or transfer, assuming (i) such holder of Common
Shares is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("CONSTITUENT PERSON"), or an Affiliate of
a constituent Person and (ii) in the case of a consolidation, merger, sale or
transfer which includes an election as to the consideration to be received by
the holders, such holder of Common Shares failed to exercise its rights of
election, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each Common Share
held immediately prior to such consolidation, merger, sale or transfer by a
Person other than a constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised ("NON-ELECTING
SHARE"), then for the purpose of this paragraph (i) the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer for each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares).
Adjustments for events subsequent to the effective date of such a consolidation,
merger and sale of assets shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Warrant. In any such event, effective
provisions shall be made in the certificate or articles of incorporation of the
resulting or surviving corporation, in any contract of sale, conveyance, lease
or transfer, or otherwise so that the provisions set forth herein for the
protection of the rights of the Holder shall thereafter continue to be
applicable; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon exercise, such shares of stock, other
securities, cash and property. The provisions of this paragraph (i) shall
similarly apply to
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successive consolidations, mergers, sales, leases or transfers.
Notwithstanding the foregoing provisions of this paragraph (i), the treatment
of this Warrant in connection with the merger of the Company with and into
Xxxxxxx Corporation shall be governed by paragraph (o).
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the Company
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Viking Merger Sub, Inc.
c/o DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
If to the Holder: To the address of such holder set forth on
the signature page hereof.
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions or to receive any notice of meetings of
shareholders or any notice of any proceedings of the Company except as may be
specifically provided for herein.
(l) REGISTRATION RIGHTS. The Holder of this Warrant is entitled to the
registration rights relating to the Warrants and the Warrant Shares set forth in
the Investors' Agreement.
(m) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS AND
THE PERFORMANCE THEREOF SHALL BE GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH
LAWS.
13
(n) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
(o) CONVERSION UPON MERGER. In lieu of the provisions of paragraph (i),
upon the consummation of the merger of the Company with and into Xxxxxxx
Corporation on the date hereof pursuant to the Agreement and Plan of Merger
dated as of July 14, 1999 between the Company and Xxxxxxx Corporation, as
amended, this Warrant shall automatically and without further action on the part
of the Holder constitute a Warrant to acquire shares of voting Class B common
stock $.01 per share of Xxxxxxx Corporation on the terms and conditions as are
set forth herein.
14
IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate
to be signed by its duly authorized officer and to be dated as of November 23,
1999.
VIKING MERGER SUB, INC.
By:___________________________
Name:
Title:
Acknowledged and Agreed:
[HOLDER]
By: ___________________________
Name:
Title:
[Address]
WARRANT SUBSCRIPTION FORM
To: Viking Merger Sub, Inc.
The undersigned irrevocably exercises the Warrant for the purchase of
___________ Common Shares (the "SHARES"), par value $0.01 per share, of Viking
Merger Sub, Inc. (the "COMPANY") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) and herewith makes payment of
$___________ (such payment being made in cash or by certified or official bank
or bank cashier's check payable to the order of the Company or by any permitted
combination of such cash or check), all on the terms and conditions specified in
the within Warrant Certificate, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ Common Shares (the "SHARES"), par value $0.01 per share, of Viking
Merger Sub, Inc. (the "COMPANY") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) (provided that in lieu of payment
of $_________, the undersigned will receive a number of Shares reduced by a
number of Common Shares having an aggregate Fair Market Value (as defined in the
Warrant) equal to the aggregate Exercise Price for the Shares), all on the terms
and conditions specified in the within Warrant Certificate, surrenders this
Warrant Certificate and all right, title and interest therein to the Company and
directs that the Shares deliverable upon the exercise of this Warrant be
registered or placed in the name and at the address specified below and
delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase
__________ Common Shares (the "SHARES"), par value $0.01 per share, of Viking
Merger Sub, Inc. (the "COMPANY") at $_______ per Share (the Exercise Price
currently in effect pursuant to the Warrant), and herewith makes payment of
$_____ of the aggregate Exercise Price for the Shares in cash, certified or
official bank or bank cashier's check (or a combination of cash and check), and
herewith delivers as payment of $____ of the aggregate Exercise Price that
number of Common Shares having an aggregate Fair Market Value (as defined in the
Warrant) equal to such non-cash portion of the aggregate Exercise Price for the
Shares, all on the terms and conditions specified in the within Warrant
Certificate, surrenders this Warrant Certificate and all right, title and
interest therein to the
Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified
below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
__________ Common Shares, par value $0.01 per share, of Viking Merger Sub, Inc.
(the "COMPANY") at $____ per share (the Exercise Price currently in effect
pursuant to the Warrant), and herewith makes payment of $_____ of the
aggregate Exercise Price for the Shares in cash, certified or official bank or
bank cashier's check (or a combination of cash and check), and herewith delivers
as payment of $____ of the aggregate Exercise Price that number of Warrants
which, if exercised, would result in a number of Common Shares having an
aggregate Fair Market Value (as defined in the Warrant) equal to such non-cash
portion of the aggregate Exercise Price for the Shares, all on the terms and
conditions specified in the within Warrant Certificate, surrenders this Warrant
Certificate and all right, title and interest therein to the Company and directs
that the Shares deliverable upon the exercise of this Warrant be registered or
placed in the name and at the address specified below and delivered thereto.
Date: __________ __, ____.
________________________________
(Signature of Owner)
________________________________
(Street Address)
________________________________
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
Dated__________________
FOR VALUE RECEIVED,____________________________________________________
hereby sells, assigns and transfers unto,
_______________________________________________________(the "ASSIGNEE"),
(please type or print in block letters)
________________________________________________________________________
(insert address)
its right to purchase up to _____ Common Shares represented by this
Warrant and does hereby irrevocably constitute and appoint
_______________________ Attorney, to transfer the same on the books of
the Company, with full power of substitution in the premises.
Signature _________________________________
