EXHIBIT 10.18
WARRANT AGREEMENT
This Warrant Agreement (this "Agreement"), is made and entered into
this 6/th/ day of January, 1999, by and between XXXXXXX XXXXXXXX XXXXXXXX CO., a
Massachusetts business trust (the "Company") and POSITANO PARTNERS LTD., a
Bermuda exempt company (the "Purchaser").
RECITALS
1. The parties hereto and certain other parties named therein have
entered into a Recapitalization Agreement dated November 28, 1998 (the
"Recapitalization Agreement"). All capitalized terms not defined herein have the
meanings ascribed to them in the Recapitalization Agreement.
2. Pursuant to the Recapitalization Agreement, the Company has agreed
to grant to the Purchaser a warrant to purchase 15,000 BSH Shares on the terms
and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and the Purchaser agree as follows:
1.1. Grant of Warrant. The Company hereby grants to the Purchaser an
exclusive and irrevocable warrant (the "Warrant") to purchase from the Company
15,000 authorized but unissued BSH Shares (collectively, the "Warrant Shares")
at a cash price per share of $151.10 (the "Exercise Price") subject to
adjustment as provided in Sections 1.6 and 1.7 hereof.
1.2. Exercise of the Warrant. (a) (i) Subject to the conditions set
forth in Section 1.3 hereof, the Warrant may be exercised by the Purchaser, in
whole or in part, at any time or from time to time after the date hereof and
until the expiration of the Warrant for cash or BSH Shares.
(ii) The Company shall not, prior to the termination of the
Warrant, take any action which would have the effect of preventing or disabling
the Company from delivering the Warrant Shares to the Purchaser upon exercise of
the Warrant or otherwise performing the Company's obligations under this
Agreement.
(b) In the event the Purchaser elects to exercise the Warrant, the
Purchaser shall give a written notice to the Company specifying the number of
the Warrant Shares the Purchaser will purchase and the place and date (not later
than ten business days, nor earlier than three
business days, from the date such notice is mailed, but not earlier than the
expiration of any applicable waiting period under the HSR Act) for the closing
of such purchase.
1.3. Payment and Delivery of Certificate(s) upon Exercise of Warrant.
(a) At any closing of any purchase of any of the Warrant Shares hereunder:
(i) the Purchaser shall (1) if exercising the Warrant for cash,
pay to the Company the aggregate price for the Warrant Shares so purchased
by certified or cashier's check or by wire transfer, and (2) if exercising
the Warrant for BSH Shares, deliver to the Company a certificate or
certificates representing the number of BSH Shares equal to the number of
Warrant Shares so purchased multiplied by a fraction, the numerator of
which is 151.10 and the denominator of which is the Public Market Value (as
defined in the Shareholders Agreement) per BSH Share as of the most recent
Regular Valuation (as defined in the Shareholders Agreement) preceding the
date of notice of exercise pursuant to Section 2(b) of the Shareholders
Agreement (or, if prior to the first Regular Valuation, $151.10); provided
that the BSH Shares so used to exercise must meet then applicable
eligibility criteria under GAAP;
(ii) the Company shall deliver to the Purchaser a duly issued
certificate (or certificates in the denominations designated by the
Purchaser in its notice of exercise) representing the number of the Warrant
Shares purchased (or if necessary due to the delivery under clause (i)(2)
of this Section 1.3(a) by the Purchaser of a certificate for a number of
BSH Shares in excess of the number of shares required to be delivered under
clause (i)(2) of this Section 1.3(a), the Company shall deliver to the
Purchaser a duly issued certificate (or certificates in the denominations
designated by the Purchaser in its notice of exercise) representing the
number of the Warrant Shares purchased plus the number of BSH Shares
represented by the certificate delivered to the Company by the Purchaser
minus the number of BSH Shares required to be delivered by the Purchaser
under clause (i)(2) of this Section 1.3(a)); and
(iii) the number of Warrant Shares subject to the Warrant shall
be reduced by the number of BSH Shares acquired by the Purchaser at such
closing.
(b) The obligation of the Company to deliver Warrant Shares at such
closing shall be subject to the conditions that no preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, shall be in effect which would prohibit such sale and delivery, and
any applicable waiting period under the HSR Act shall have expired.
1.4. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchaser as follows:
(a) Due Authorization, Etc. This Agreement has been duly authorized
by all necessary action on the part of the Company, has been duly executed by a
duly authorized officer of the Company and is valid, binding and enforceable
against the Company in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization,
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moratorium and other similar laws of general application which may affect the
enforcement of creditors' rights generally, by general equitable principles and
by implied covenants of good faith and fair dealing.
(b) Warrant Shares. The Company has taken all necessary corporate
action to authorize and reserve for issuance, upon exercise of the Warrant, the
Warrant Shares. The Warrant Shares, upon purchase by the Purchaser, will be duly
authorized, validly issued, fully paid and nonassessable, and delivered to the
Purchaser free and clear of all claims, liens, charges, security interests or
encumbrances of any kind, including, without limitation, any preemptive or
similar rights other than those set forth in the Ancillary Documents.
(c) No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in any breach or violation of, be in conflict with, or will constitute a
default under, the Amended and Restated Declaration of Trust or other
organizational document of the Company or any of its Subsidiaries; or any
indenture, loan or credit agreement or any other agreement or instrument to
which the Company or any of its Subsidiaries is a party, or by which the Company
or any of its Subsidiaries may be affected or is bound, which would have a
Company Material Adverse Effect.
1.5. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) Due Authorization. This Agreement has been duly authorized by
all necessary action on the part of the Purchaser and has been duly executed by
a duly authorized officer of the Purchaser, and is valid, binding and
enforceable against the Purchaser in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally, by general equitable principles and by implied
covenants of good faith and fair dealing.
(b) Distribution. Any Warrant Shares to be acquired upon exercise of
the Warrant will not be acquired by the Purchaser with a view to the public
distribution thereof, and will not be transferred, except in a transaction
registered or exempt from registration under the Securities Act and permitted by
this Agreement.
(c) No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in any breach or violation of, be in conflict with, or will constitute a
default under, the Memorandum of Association or the Bye-laws of the Purchaser or
any indenture, loan or credit agreement or any other agreement or instrument to
which the Purchaser is a party, or by which the Purchaser or any of its
subsidiaries may be affected or is bound, which would have a Material Adverse
Effect upon the Purchaser.
1.6. Adjustment Based Upon Amount of Benefit Plan Remedial Obligation.
To the extent that the Benefit Plan Remedial Obligation (as defined in BSH
Schedule 4.25(b)1 of the Disclosure Memorandum) is determined to (A) exceed $1.2
million at any time prior to the fifth anniversary of Closing (the amount of
such excess being the "Benefit Plan Excess"), additional
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BSH Shares shall be subject to the Warrant as follows: the additional BSH Shares
subject to the Warrant shall bear the same ratio to 15,000 as the amount of the
Benefit Plan Excess bears to $1.2 million; provided that such adjustment shall
only be made if the Benefit Plan Excess is an amount greater than $300,000 and
(B) be less than $1.2 million at any time prior to the fifth anniversary of the
Closing (the amount of such difference being the "Benefit Plan Reduction
Amount"), Positano shall surrender a portion of the Warrant as follows: the
number of Warrant Shares subject to the portion surrendered shall bear the same
ratio to 15,000 as the Benefit Plan Reduction Amount bears to $1.2 million;
provided that such adjustment shall only be made if the Benefit Plan Reduction
Amount is greater than $300,000. In the event that a downward adjustment is
required pursuant to clause (B) above, such adjustment shall, in the first
instance, reduce the number of Warrant Shares subject to the unexercised portion
of the Warrant; provided that if an insufficient number of Warrant Shares
subject to the unexercised portion of the Warrant is available to satisfy such
downward adjustment, (1) Purchaser shall surrender to the Company, and the
Company shall cancel, a number of BSH Shares previously acquired by Purchaser
pursuant to the Warrant which represents the balance of the required downward
adjustment and (2) the Company shall pay to the Purchaser an amount equal to the
purchase price of such BSH Shares.
1.7. Adjustment Upon Changes in Capitalization. In the event of any
change in, or affecting, the issued and outstanding BSH Shares by reason of any
dividend, stock split, merger, recapitalization, combination, conversion,
exchange of shares or other change in the capital structure of the Company, the
number and kind of shares or securities subject to the Warrant and the Exercise
Price shall be appropriately and equitably adjusted (with adjustments being
cumulative if more than one of such events shall have occurred) so that the
Purchaser shall receive, upon exercise of the Warrant, the number and class of
Warrant Shares or other securities or property that the Purchaser would have
received in respect of Warrant Shares if the Warrant had been exercised
immediately prior to such event.
1.8. Ownership of Warrant Shares. The Purchaser shall hold the
Warrant Shares issued upon exercise of the Warrant subject to the terms of the
Shareholders Agreement.
1.9. Specific Performance. The Company and the Purchaser acknowledge
that the Warrant and the Warrant Shares are unique and that neither party hereto
will have an adequate remedy at law if the other breaches any covenant contained
herein or fails to perform any of its obligations under this Agreement.
Accordingly, each party agrees that the other shall have the right, in addition
to any other rights which it may have, to specific performance and equitable
injunctive relief if the other party shall fail or threaten to fail to perform
any of its obligations under this Agreement.
1.10. Expiration. The Warrant shall expire on the earlier to occur of
(i) the date on which the number of Warrant Shares is reduced to zero, and (ii)
the tenth anniversary of the Closing.
1.11. Miscellaneous. (a) Assignability. (i) The rights and
obligations of the Purchaser with respect to all or a portion of the Warrant
shall be assignable by the Purchaser to
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and only to any affiliate of the Purchaser, if and only if such affiliate shall,
by a written instrument reasonably satisfactory to the Company, agree to assume
all of the Purchaser's obligations hereunder and to be bound by all of the terms
and conditions of this Agreement and the Shareholders Agreement.
(ii) The obligations of the Company shall not be assignable
without the prior written consent of the Purchaser, and any purported assignment
without such prior written consent shall be null and void.
(b) Third Parties. Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon or give to any third party any
rights or remedies by virtue of this Agreement or any exercise or non-exercise
of the Warrant granted hereby.
(c) Amendments. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(d) Notices. Except as otherwise expressly provided herein, all
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given to any party when
delivered by hand, by messenger or by a nationally recognized overnight delivery
company, when delivered by telecopy and confirmed by return telecopy, or when
delivered by first-class mail, postage prepaid and return receipt requested, to
the parties at the addresses set forth below:
If to the Company: Xxxxxxx Xxxxxxxx Xxxxxxxx Co.
Prudential Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx, Procter & Xxxx LLP
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Xxxxxx X. Cable, P.C.
Facsimile: (000) 000-0000
If to the Purchaser: H&F Investors III, Inc.
Xxx Xxxxxxxx Xxxxx
00/xx/ Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
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with a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
The addresses set forth above may be changed by any party upon furnishing to the
other party a notice of change of address in accordance with the terms of this
paragraph.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the Commonwealth of Massachusetts.
(f) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Agreement.
(g) Effect of Headings. The section and paragraph headings herein are
for convenience only and shall not affect the construction hereof.
(h) Time of the Essence. The parties agree that time shall be of the
essence in the performance of obligations hereunder.
(i) Survival of Representations and Warranties. The representations,
warranties, covenants and agreements shall survive any closing pursuant to this
Agreement.
(j) Expenses. Each of the parties hereto shall pay all fees and
expenses it incurs in connection with this Agreement.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(l) Entire Agreement. This Agreement and the other agreements
referenced herein constitute the entire agreement between the Company and the
Purchaser with respect to the matters covered herein and supersede any prior
negotiations, understandings or agreements with respect to the matters
contemplated hereby.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties set forth below.
XXXXXXX XXXXXXXX XXXXXXXX CO.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sole Trustee
Xxxxxxx Xxxxxxxx Xxxxxxxx Co. (the "Trust") is a
Massachusetts business trust. A copy of the
Trust's Declaration of Trust, as the same may be
amended and/or restated from time to time, is on
file with the Secretary of State of The
Commonwealth of Massachusetts. Each of the
parties hereto acknowledges and agrees that this
Agreement is not executed on behalf of the
trustees or officers of the Trust as individuals
or, in the event the trustee is a corporation or
other entity, on behalf of the individual owners
of such corporation or entity, and the obligations
of this Agreement are not binding upon any of the
trustees, officers or shareholders of the Trust,
or any of their respective trustees, officers,
directors, partners, members or shareholders,
individually, but are binding only upon the assets
and property of the Trust. Each of the parties
hereto agrees that no shareholder, trustee or
officer of the Trust, or any of their respective
trustees, officers, directors, partners, members
and shareholders, may be held personally liable or
responsible for any obligations of the Trust
arising out of this Agreement. With respect to
obligations of the Trust arising out of this
Agreement, each of the parties hereto shall look
for payment or satisfaction of any claim solely to
the assets and property of the Trust.
POSITANO PARTNERS LTD.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO THE WARRANT AGREEMENT]
