1
EXHIBIT 10.32
GUARANTY WARRANT AGREEMENT
GUARANTY WARRANT AGREEMENT dated as of October 12, 1999,
between Xxxxxxxx Manufacturing Company, Inc., a Texas corporation (the
"COMPANY"), and the investors listed on Schedule A attached hereto
(individually, an "INITIAL HOLDER" and collectively, the "INITIAL HOLDERS").
WITNESSETH:
WHEREAS, the Company proposes to issue to the Initial Holders
warrants ("WARRANTS") to purchase shares (the "SHARES") of common stock of the
Company, no par value (the "COMMON STOCK"), as provided herein in connection
with that certain Limited Continuing Guaranty dated as of August 12, 1999, as
amended by the First Amendment thereto dated as of October 12, 1999, pursuant to
which Westar (as defined in the Guaranty) has and may guarantee loans to be
advanced by Bank of America, N.A. ("BANK OF AMERICA") to the Company pursuant to
the Credit Agreement dated as of August 12, 1999, as amended by the First
Amendment thereto dated as of October 12, 1999 (the "CREDIT AGREEMENT"), as such
guaranty may from time to time be amended (the "GUARANTY"), that certain Pledge
Agreement dated as of August 12, 1999, as amended by the First Amendment thereto
dated as of October 12, 1999, as such pledge agreement may from time to time be
amended (the "Pledge Agreement") and that certain Guaranty Reimbursement
Agreement dated as of August 12, 1999 pursuant to which certain shareholders of
Xxxxxxxx party thereto have agreed to reimburse Westar for certain advances made
under the Guaranty and the Pledge Agreement (the "REIMBURSEMENT AGREEMENT");
WHEREAS, the Warrants and the Shares will be subject to
certain provisions in the Amended and Restated Securityholders Agreement dated
as of September 19, 1997 among the Company, the Initial Holders and the other
persons party thereto, as amended by the First Amendment to Amended and Restated
Securityholders Agreement dated as of September 28, 1999 (the "Securityholders
Agreement").
NOW, THEREFORE, in consideration of the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant.
1.1 Vested Warrants. The Initial Holders or their designated
affiliates are hereby granted the right to purchase, at any time from and after
the date hereof, until 5:00 P.M., Pacific Standard Time, on September 30, 2007
(subject to Section 16 hereof, the "Warrant Exercise Term"), up to 4,146,357
Shares at an initial exercise price (subject to adjustment as provided in
Article 7 hereof) of $.01 per Share. The Warrants to purchase Shares described
in this Section 1.1 are referred to herein as the "Vested Warrants".
1.2 The Initial Holders or their designated affiliates are
hereby granted the right to purchase, at any time from and after a Triggering
Event (as defined below), until 5:00
1
2
P.M., Pacific Standard Time, on September 30, 2007 (subject to Section 16
hereof), (the "Warrant Exercise Term"), up to 10,000,000 Shares (the "Aggregate
Shares") at an initial exercise price (subject to adjustment as provided in
Article 7 hereof) of $.01 per Share, as provided in this Section 1.2. The
Warrants to purchase shares described in this Section 1.2 are referred to herein
as the "Contingent Warrants"). For purposes hereof, a "Triggering Event" shall
be the payment by Westar to Bank of America of any Guaranty Payments (as defined
in the Guaranty). In the event that any Triggering Event occurs, the Contingent
Warrants shall be exercisable for a number of Shares equal to the Aggregate
Shares multiplied by a fraction the numerator of which is equal to the Guaranty
Payments that was paid in connection with such Triggering Event and the
denominator of which is equal to $15,000,000, it being understood that more than
one Triggering Event may occur and that additional Contingent Warrants shall
become exercisable upon the occurrence of each Triggering Event as provided
herein.
Warrant Certificates.
The warrant certificates (the "Warrant Certificates")
delivered and to be delivered pursuant to this Agreement shall be in the form
set forth as Exhibit A in the case of the Vested Warrants and Exhibit B attached
hereto in the case of the Contingent Warrants and made a part hereof, with such
appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
2. Exercise of Warrants.
The Warrants initially are exercisable at a price of $.01,
subject to adjustment as provided in Article 7 hereof, per Share. Upon surrender
of a Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price for the Shares purchased,
at the Company's principal offices (located at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxx 76017) the registered holder of a Warrant Certificate ("Holder"
or "Holders") shall be entitled to receive a certificate or certificates for the
Shares so purchased, subject, in the case of the Contingent Warrants, to the
occurrence of a Triggering Event. Payment of the Exercise Price may be made, at
the option of the Holder: (a) by cash, money order, certified or bank cashier's
check or wire transfer, (b) the surrender to the Company of securities of the
Company having a value equal to the aggregate Exercise Price, as determined in
good faith by the Company's board of directors, or (c) the delivery of a notice
to the Company that the Holder is exercising this Warrant by authorizing the
Company to reduce the number of shares of Common Stock subject to this Warrant
by the number of shares having an aggregate value equal to the aggregate
Exercise Price, as determined in good faith by the Company's board of directors.
The purchase rights represented by each Warrant Certificate are exercisable at
the option of the Holder thereof, in whole or in part (but not as to fractional
shares of the Common Stock). In the case of the purchase of less than all the
Shares purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the Shares purchasable
thereunder.
2
3
3. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of
certificates for the Shares shall be made forthwith (and in any event within ten
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
Holder thereof; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificates in a name other than that of the Holder
and the Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the
Shares shall be executed on behalf of the Company by the manual or facsimile
signature of duly authorized officers of the Company. Warrant Certificates shall
be dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
The Warrant Certificates and, upon exercise of the Warrants,
in part or in whole, certificates representing the Shares shall bear a legend
substantially similar to the following:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION OR NO-ACTION LETTER
ISSUED BY THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION
IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. THIS
SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE SECURITYHOLDERS AGREEMENT, COPIES OF WHICH MAY BE OBTAINED
UPON REQUEST FROM XXXXXXXX MANUFACTURING COMPANY, INC. AND ANY
SUCCESSOR THERETO."
If any Warrant Certificates or the certificates representing
the Shares cease to be subject to any and all restrictions on transfer set forth
in the Securityholders Agreement, the Company shall, upon the written request of
the holder thereof, issue to such holder without charging therefor a new
certificate evidencing such Warrant Certificates or the certificates
representing the Shares of the Company without the second sentence of the legend
required by the above legend endorsed thereon.
3
4
4. Restriction on Transfer of Warrants.
The Holder of a Warrant Certificate, by its acceptance
thereof, covenants and agrees that the Warrants are being acquired as an
investment and not with a view to the distribution thereof, and that neither the
Warrants nor the shares of Common Stock issuable upon exercise hereof may be
sold, transferred, assigned, hypothecated or otherwise disposed of, in whole or
in part, unless and until:
(a) There is then in effect a registration statement under the
Securities Act of 1933, as amended (the "Act"), covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(b) (i) The Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and (ii) the Holder
shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
of such shares under the Act. The Company agrees that it will not require
opinions of counsel for transactions made pursuant to Rule 144.
(c) Notwithstanding the provisions of subsections (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder that is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will or intestate succession of any partner to his or her spouse or to
the siblings, lineal descendants or ancestors of such partner or his or her
spouse, if the transferee agrees in writing to be subject to the terms hereof to
the same extent as if he or she were the original Holder of the transferred
Warrant Certificate. The foregoing provisions of this subsection (c) shall apply
to Holders which are limited liability companies and their members, as if the
term "partner" was replaced by the term "member" and the term "partnership" was
replaced with the term "limited liability company" in each instance.
(d) Notwithstanding anything herein to the contrary, the
Warrants and any Shares issued upon exercise of the Warrants shall constitute
Equity Securities under the Securityholders Agreement and the Holder thereof
shall be subject to the terms of the Securityholders Agreement, including the
restrictions on the transfer thereof set forth in the Securityholders Agreement.
5. Price.
5.1 Initial and Adjusted Exercise Price. The initial exercise
price of each Warrant shall be $.01 per Share. The adjusted exercise price shall
be the price which shall result from time to time from any and all adjustments
of the initial exercise price in accordance with the provisions of Article 7
hereof.
5.2 Exercise Price. The term "Exercise Price" herein shall
mean the initial exercise price or the adjusted exercise price, depending upon
the context.
4
5
6. Registration Rights.
6.1 Registration under the Securities Act of 1933. The
Warrants and the Shares have not been registered for purposes of public
distribution under the Act.
6.2 Registrable Stock. As used herein the term "Registrable
Stock" shall have the meaning set forth in the Securityholders Agreement.
6.3 Registration Rights. Each Holder of Shares received in
connection with the exercise of the Warrants hereunder shall have the
registration rights set forth in Article VI of the Securityholders Agreement,
which by this reference is incorporated by reference herein.
7. Adjustment of Exercise Price and Number of Shares.
The number and kind of securities issuable upon exercise of
this Warrant and the Exercise Price therefor shall be subject to adjustment from
time to time upon the happening of certain events, as follows:
7.1 Stock Splits and Combinations. If the Company at any time
or from time to time after the date hereof effects a subdivision of the
outstanding Common Stock pursuant to a stock split or similar event, the
Exercise Price of this Warrant shall be proportionately decreased, and
conversely, if the Company at any time or from time to time after the date
hereof combines the outstanding shares of Common Stock into a smaller number of
shares in a reverse stock split or similar event, the Exercise Price of this
Warrant shall be proportionately increased. Upon the adjustment of the Exercise
Price pursuant to the foregoing provisions, the number of shares of Common Stock
subject to the exercise of this Warrant shall be adjusted to the nearest full
share by multiplying the number of shares subject to this Warrant by a fraction,
the numerator of which is the Exercise Price immediately prior to such
adjustment and the denominator of which is the Exercise Price immediately after
such adjustment. Any adjustment under this Section 8.1 shall be effective at the
close of business on the date the subdivision or combination becomes effective.
7.2 Adjustment for Reorganization, Consolidation, Merger. In
any reorganization of the Company (or any other corporation stock or other
securities of which are at the time receivable upon exercise of this Warrant)
after the date hereof, or in case, after such date, the Company (or any such
other corporation) shall merge into or with or consolidate with another
corporation or sell or convey all or substantially all of its assets to another
corporation, then and in each such case, Holder, upon exercise of this Warrant
at any time after the consummation of such reorganization, consolidation,
merger, sale or conveyance, shall be entitled to receive, in lieu of the stock
or other securities and property to which such Holder would be entitled had it
exercised this Warrant immediately prior thereto, such stock, securities or
other property which such Holder would have received had it exercised this
Warrant immediately prior to such reorganization, merger, consolidation or sale
of assets, all subject to further adjustment as provided in this Article 8.
5
6
8. Exchange and Replacement of Warrant Certificates.
Each Warrant Certificate is exchangeable without expense, upon
the surrender thereof by the registered Holder at the principal executive office
of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Shares in
such denominations as shall be designated by the Holder thereof at the time of
such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it and its counsel of the loss, theft, destruction or mutilation
of any Warrant Certificate, and, in case of loss, theft or destruction, of
reasonable indemnity (which in the case of an institutional Holder shall be an
unsecured indemnity agreement) and, in case of mutilation, upon surrender and
cancellation of the Warrant Certificate, the Company will execute and deliver,
in lieu thereof, a new Warrant Certificate of like tenor representing the same
rights as the lost, stolen, destroyed or mutilated Warrant Certificate.
9. Elimination of Fractional Interests.
The Company shall not be required to issue certificates
representing fractions of shares of Common Stock and shall not be required to
issue scrip or pay cash in lieu of fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction to the nearest whole number of shares of Common Stock.
10. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Common Stock as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any shareholder. As long as the Warrants shall be outstanding, from and after
the date on which the Company's Common Stock is listed on or quoted by NASDAQ or
listed on a national securities exchange the Company shall use its best efforts
to cause all shares of Common Stock issuable upon the exercise of the Warrants
to be listed on or quoted by NASDAQ or listed on such national securities
exchanges as the Company's Common Stock is then listed.
11. Notices to Warrant Holders.
Nothing contained in this Agreement shall be construed as
conferring upon the Holder or Holders the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders for
the election of directors or any other matter, or as having any rights
whatsoever as a shareholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in
6
7
cash, or a cash dividend or distribution payable otherwise than out of current
or retained earnings, as indicated by the accounting treatment of such dividend
or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed; or
(d) reclassification or change of the outstanding shares of
Common Stock (other than a change in par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination),
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result of
a subdivision or combination of such shares or a change in par value, as
aforesaid), or a sale or conveyance to another corporation of the property of
the Company as an entirety is proposed; or
(e) The Company or an affiliate of the Company shall propose
to issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the shareholders of the
Company;
then, in any one or more of said events, the Company shall give written notice
of such event at least ten (10) days prior to the date fixed as a record date or
the date of closing the transfer books for the determination of the shareholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, options or warrants, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend or distribution, or the issuance of any convertible or exchangeable
securities or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
12. Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address
of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
of this Agreement or to such other address as the Company may designate by
notice to the Holders.
7
8
13. Waiver; Amendments.
Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
14. Successors.
All the covenants and provisions of this Agreement by or for
the benefit of the Company and the Holders inure to the benefit of their
respective successors and assigns hereunder.
15. Notice of Expiration.
The Company will give the holders of the Warrants no less than
ninety (90) days notice of the expiration of the right to exercise the Warrant.
The right to exercise the Warrant shall expire at the termination of the Warrant
Exercise Term unless the Company shall fail to give such notice as aforesaid, in
which event the right to exercise the Warrants shall not expire until 5:00 p.m.,
Texas Time, on a date thirty (30) days after the date on which the Company shall
give the holder notice of the expiration of the right to exercise these
Warrants.
16. Governing Law.
This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Texas and
for all purposes shall be construed in accordance with the laws of said State.
17. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the registered holder or
holders of the Warrant Certificates, Warrants or the Shares any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company and the holders of the
Warrant Certificates, Warrants or the Shares.
18. Disclaimer.
The Company acknowledges and agrees that nothing in this
Agreement or in the Guaranty, the Pledge Agreement, the Reimbursement Agreement
or any other agreement shall constitute a commitment or other undertaking by
Westar or any other Initial Holders to guaranty or secure any loans under the
Credit Agreement or shall limit in any way any decision by Westar or any other
Initial Holder to make any Guaranty Payment or take any action or elect not to
take action under or relating to the Guaranty, the Pledge Agreement, the
Reimbursement Agreement or any other agreement.
8
9
19. Counterparts.
This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
9
10
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
"THE COMPANY"
XXXXXXXX MANUFACTURING
COMPANY, INC.,
a Texas corporation
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
S-1
11
WESTAR CAPITAL II, LLC
By: Westar Capital Associates II, LLC
By:
-----------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Its: Member
----------------------------------
X-0
00
XXX FINANCIAL INC.
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Its: Chairman of the Board and President
------------------------------------
S-3
13
TWELVE D LIMITED, A TEXAS LIMITED
PARTNERSHIP
By: Cyclone Tours, Inc.
Its: General Partner
By:
------------------------------
Name: Xxxxxxxx X. Xxxxxxxx, Xx.
---------------------------
Its: President
-----------------------------
S-4
14
Schedule A
Name Address
---- -------
Westar Capital II, LLC 000 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
HBI Financial Inc. x/x Xxxxxx & Xxxxxxx XXX
X.X. Xxxx Xxxxxx, Xxxxx 000
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.:
Twelve D Limited 0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Schedule A-1
15
EXHIBIT A
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION OR NO-ACTION LETTER
ISSUED BY THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. THIS SECURITY IS ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SECURITYHOLDERS AGREEMENT, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
XXXXXXXX MANUFACTURING COMPANY, INC. AND ANY SUCCESSOR THERETO.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., PACIFIC STANDARD TIME, SEPTEMBER 30, 2007
No. ______ [________] Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________________ or
registered assigns, is the registered holder of [___________] Warrants to
purchase, at any time from and after October 13, 1999 until 5:00 P.M. Pacific
Standard Time on September 30, 2007 ("Expiration Date"), up to [___________]
shares ("Shares") of fully-paid and non-assessable common stock, no par value
("Common Stock"), of Xxxxxxxx Manufacturing Company, Inc., a Texas corporation
(the "Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $.01 per Share upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of October 13, 1999 between the Company and the initial
holders party thereto (the "Warrant Agreement"). This Warrant shall be
exercisable for a number of shares of Common Stock and at the Exercise Price set
forth in the Warrant Agreement. Payment of the Exercise Price may be made in
cash, or by certified or official bank check payable to the order of the
Company, or any combination of cash or check, or in any of the other means set
forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 P.M., Pacific Standard
Time, on the Expiration Date, at which time all Warrants evidenced hereby,
unless exercised prior thereto, shall thereafter be void.
1
16
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events, the Exercise Price and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax, or
other governmental charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meaning assigned to them in the Warrant Agreement. All
rights evidenced by this Warrant Certificate are subject to the terms and
conditions of the Warrant Agreement. In the event of any conflict between the
terms and conditions of the Warrant Agreement and the terms and conditions of
this Warrant Certificate, the terms and conditions of the Warrant Agreement
shall govern and control.
2
17
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: October 12, 1999 XXXXXXXX MANUFACTURING COMPANY, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attest:
----------------------------
Secretary
3
18
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ________ Shares and
herewith tenders in payment for such Shares cash or a certified or official bank
check payable to the order of Xxxxxxxx Manufacturing Company, Inc. in the amount
of $______________, all in accordance with the terms hereof. [Alternative
instructions may be provided in the event of a cashless exercise in accordance
with Article 3 of the Warrant Agreement.] The undersigned requests that a
certificate for such Shares be registered in the name of
_________________________, whose address is _________________
______________________, and that such Certificate be delivered to
______________________,whose address is ______________________________________.
Dated: Signature:
---------------------- --------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
----------------------------------
----------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
4
19
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________________________ hereby
sells, assigns and transfers unto ______________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of Substitution.
Dated: Signature:
---------------------- --------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
--------------------------------
--------------------------------
(Insert Social Security or Other
Identifying Number of Assignee)
5
20
EXHIBIT B
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION OR NO-ACTION LETTER
ISSUED BY THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. THIS SECURITY IS ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SECURITYHOLDERS AGREEMENT, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
XXXXXXXX MANUFACTURING COMPANY, INC. AND ANY SUCCESSOR THERETO.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., PACIFIC STANDARD TIME, SEPTEMBER 30, 2007
No. ______ [________] Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________________ or
registered assigns, is the registered holder of [___________] Warrants to
purchase, at any time from and after a Triggering Event (as defined in the
Warrant Agreement referred to below) until 5:00 P.M. Pacific Standard Time on
September 30, 2007 ("Expiration Date"), up to [___________] shares ("Shares") of
fully-paid and non-assessable common stock, no par value ("Common Stock"), of
Xxxxxxxx Manufacturing Company, Inc., a Texas corporation (the "Company"), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $.01 per Share upon surrender of this Warrant Certificate
and payment of the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the Warrant Agreement dated as
of October 13, 1999 between the Company and the initial holders party thereto
(the "Warrant Agreement"). After the occurrence of a Triggering Event (as
defined in the Warrant Agreement), this Warrant shall be exercisable for a
number of shares of Common Stock and at the Exercise Price set forth in the
Warrant Agreement. Payment of the Exercise Price may be made in cash, or by
certified or official bank check payable to the order of the Company, or any
combination of cash or check, or in any of the other means set forth in the
Warrant Agreement.
No Warrant may be exercised after 5:00 P.M., Pacific Standard
Time, on the Expiration Date, at which time all Warrants evidenced hereby,
unless exercised prior thereto, shall thereafter be void.
1
21
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events, the Exercise Price and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax, or
other governmental charge imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meaning assigned to them in the Warrant
Agreement. All rights evidenced by this Warrant Certificate are subject to the
terms and conditions of the Warrant Agreement. In the event of any conflict
between the terms and conditions of the Warrant Agreement and the terms and
conditions of this Warrant Certificate, the terms and conditions of the Warrant
Agreement shall govern and control.
2
22
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: October 12, 1999 XXXXXXXX MANUFACTURING COMPANY, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Attest:
----------------------------
Secretary
3
23
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ________ Shares and
herewith tenders in payment for such Shares cash or a certified or official bank
check payable to the order of Xxxxxxxx Manufacturing Company, Inc. in the amount
of $______________, all in accordance with the terms hereof. [Alternative
instructions may be provided in the event of a cashless exercise in accordance
with Article 3 of the Warrant Agreement.] The undersigned requests that a
certificate for such Shares be registered in the name of
_________________________, whose address is _________________
______________________, and that such Certificate be delivered to
______________________,whose address is ______________________________________.
Dated: Signature:
---------------------- --------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
----------------------------------
----------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
4
24
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED ____________________________________ hereby
sells, assigns and transfers unto ______________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of Substitution.
Dated: Signature:
---------------------- --------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
--------------------------------
--------------------------------
(Insert Social Security or Other
Identifying Number of Assignee)
5
