EXHIBIT 4.6
Execution Copy
IMPERIAL SUGAR COMPANY
AND
THE BANK OF NEW YORK,
Warrant Agent
-----------------------
WARRANT AGREEMENT
Dated as of August 28, 2001
TABLE OF CONTENTS
PAGE
SECTION 1. APPOINTMENT OF WARRANT AGENT......................................................................... 1
SECTION 2. WARRANT CERTIFICATES................................................................................. 1
SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES............................................... 2
SECTION 4. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES........................................................ 2
SECTION 6. DURATION AND EXERCISE OF WARRANTS; REDEMPTION OF WARRANTS; EXERCISE PRICE;
RIGHT OF WARRANT HOLDERS............................................................................ 4
SECTION 7. OPTIONAL REDUCTION OF EXERCISE PRICE................................................................. 5
SECTION 8. PAYMENT OF TAXES..................................................................................... 6
SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATES............................................................ 6
SECTION 10. RESERVATION OF SHARES............................................................................... 6
SECTION 11. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE LISTINGS..................................... 7
SECTION 12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES PURCHASABLE............................... 7
SECTION 13. FRACTIONAL SHARES................................................................................... 10
SECTION 14. NOTICES TO WARRANT HOLDERS.......................................................................... 11
SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT............................................ 12
SECTION 16. WARRANT AGENT....................................................................................... 12
SECTION 17. CHANGE OF WARRANT AGENT............................................................................. 14
SECTION 18. ISSUANCE OF NEW WARRANT CERTIFICATES................................................................ 15
SECTION 19. NOTICES TO COMPANY AND WARRANT AGENT................................................................ 15
SECTION 20. IDENTITY OF TRANSFER AGENT.......................................................................... 16
SECTION 21. SUPPLEMENTS AND AMENDMENTS.......................................................................... 16
SECTION 22. SUCCESSORS.......................................................................................... 16
SECTION 23. TERMINATION......................................................................................... 16
SECTION 24. GOVERNING LAW....................................................................................... 16
SECTION 25. BENEFITS OF THIS AGREEMENT.......................................................................... 17
SECTION 26. COUNTERPARTS........................................................................................ 17
EXHIBIT A. Form of Warrant Certificate
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is made and dated as of August
28, 2001, between Imperial Sugar Company, a Texas corporation (the "Company")
and The Bank of New York, a New York Trust Company (the "Warrant Agent").
WHEREAS, the Company proposes to effect a plan of reorganization pursuant
to chapter 11 of the Bankruptcy Code (the "Plan") whereby, among other things,
each issued and outstanding share of Common Stock, without par value, of the
Company (the "Old Common Shares"), is to be cancelled and replaced with (i)
.00617048405 of a share of newly issued Common Stock, without par value, of the
Company (the "Common Shares") and (ii) .03428046355 of a warrant (the
"Warrants"), each Warrant entitling the holder thereof to purchase one Common
Share of the Company, subject to the terms and conditions contained therein and
in this Agreement (the Common Shares issuable upon exercise of the Warrants in
accordance with this Agreement being referred to herein as the "Warrant
Shares");
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to act, in connection with the
issuance of certificates evidencing the Warrants (the "Warrant Certificates")
and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth in this Agreement, and the Warrant Agent hereby accepts
such appointment. So long as any of the Warrant Certificates are outstanding,
there may be an authenticating agent appointed by the Warrant Agent which shall
be authorized to act on behalf of the Warrant Agent to countersign Warrant
Certificates issued upon exchange and register of transfer thereof, and Warrant
Certificates so countersigned shall be entitled to the benefits of this Warrant
Agreement and shall be valid for all purposes as if countersigned by the Warrant
Agent hereunder. Whenever reference is made in this Warrant Agreement to the
countersignature of the Warrant Agent, such reference shall be deemed to include
countersignature on behalf of the Warrant Agent by such agent. The agent
appointed hereunder shall be entitled to the same rights, privileges and
indemnities as the Warrant Agent under Section 16 and shall satisfy such
requirements as are applicable to a successor to the Warrant Agent under Section
17. The Warrant Agent shall be the authenticating agent.
SECTION 2. WARRANT CERTIFICATES. The Warrants shall be evidenced by Warrant
Certificates. The text of each Warrant Certificate (and the Forms of Exercise
and Assignment to be set forth on the reverse thereof) shall be substantially in
the form set forth in Exhibit A attached hereto and may have such
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identification, designation and information thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation under such law or with any rule or regulation of the National
Association of Securities Dealers, Inc. or any stock exchange on which the
Warrants may be listed, or to conform to usage.
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SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES. The
Warrant Certificates shall be executed on behalf of the Company by its Chairman
of the Board, President or one of its Managing Directors, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any such officer on any Warrant Certificate may be
manual or facsimile. Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company notwithstanding that such individuals, or any of
them, ceased to be such officers prior to the countersignature and delivery of
such Warrant Certificate or were not such officers at the date of this
Agreement.
Each Warrant Certificate shall be countersigned by the manual signature of
an authorized officer of the Warrant Agent and shall not be valid for any
purpose unless so countersigned. The Warrant Agent is hereby authorized to
countersign Warrant Certificates for issuance pursuant to any provision of this
Agreement.
Each Warrant Certificate shall be dated the date of its countersignature by
the Warrant Agent.
SECTION 4. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES. Following the
execution of this Agreement, from time to time Warrant Certificates representing
up to 1,111,111 Warrants (which amount may be increased to the extent necessary
to accommodate the rounding up of Warrants under the Plan) shall be
countersigned, issued and delivered by the Warrant Agent upon written order of
the Company signed by its Chairman of the Board, its President, one of its
Managing Directors, its Treasurer, its Secretary or one of its Assistant
Secretaries.
From time to time, the Warrant Agent shall countersign and deliver Warrant
Certificates in required denominations to the Persons (as defined below)
entitled thereto in connection with any transfer or exchange permitted under
this Agreement. Except as provided in Section 9 hereof, no Warrant Certificates
shall be issued except (i) Warrant Certificates initially issued hereunder for
the number of Warrant Shares equal to the number of Warrants represented
thereby, (ii) Warrant Certificates issued upon the partial exercise of any
Warrant to evidence the portion of such Warrant not exercised and (iii) Warrant
Certificates issued upon any transfer or exchange of Warrants.
The Warrants will be separately transferable upon issuance.
SECTION 5. REGISTRATION; TRANSFERS AND EXCHANGES. The Company shall
maintain at a principal office of the Warrant Agent (currently located at 000
Xxxxxxx Xxxxxx (00X), Xxx Xxxx, Xxx Xxxx 10286) a register for the registration
of the Warrant Certificates and of their transfer from time to time (the
"Warrant Register").
The Company and the Warrant Agent may deem and treat the registered holder
of each Warrant Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof, any distribution
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to the holder thereof, and for all other purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary.
Each Warrant Certificate shall be transferable, in whole or in part, on the
Warrant Register, upon surrender of the Warrant Certificate to the Company at
the principal office of the Warrant Agent designated above, or at another office
or agency to be maintained by the Company, together with a written assignment of
the Warrant Certificate on the Form of Assignment set forth on the reverse
thereof or in other form satisfactory to the Warrant Agent, duly executed by the
registered holder thereof or its duly appointed legal representative, and
together with funds to pay any transfer taxes payable in connection with such
transfer. Upon such surrender and payment, a new Warrant Certificate, in the
name of the assignee and in the denomination or denominations specified in such
instrument of assignment, shall be issued and delivered. If less than all of the
Warrant Certificate is being transferred, a new Warrant Certificate or
Certificates shall be issued for the portion of the Warrant Certificate not
being transferred. The Warrant Certificate surrendered shall be cancelled by the
Warrant Agent.
A Warrant Certificate may be divided or combined with other Warrant
Certificates upon surrender thereof to the Company at the principal office of
the Warrant Agent as set forth above, or at another office or agency to be
maintained by the Company, together with (i) a written notice specifying the
names and denominations in which new Warrant Certificates are to be issued,
signed by the registered holder thereof or his duly appointed legal
representative, and (ii) the funds to pay any transfer taxes payable in
connection with such transfer. Upon such surrender and payment, a new Warrant
Certificate or Certificates shall be issued and delivered in accordance with
such notice. The Warrant Certificate surrendered shall be cancelled by the
Warrant Agent.
The Company may require payment of a sum sufficient to cover such
reasonable charges (including, without limitation, any tax or other governmental
charge that may be imposed and the fees and expenses of the Warrant Agent) as
the Company or the Warrant Agent may prescribe in connection with any exchange
or registration of transfer of Warrant Certificates.
Warrant Certificates cancelled by the Warrant Agent pursuant to any
provision of this Agreement shall be returned to the Company.
The Warrant Agent shall keep copies of this Agreement and any amendments
hereto and notices given or received hereunder available for inspection by the
Warrant holders during normal business hours at its principal office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may reasonably request.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the numbers of Warrants delivered to it in accordance
with the terms and conditions of this Agreement and the Warrant Certificates,
(ii) the instructions of each Warrant holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Shares or other
cash or property to which such Warrant holder is entitled upon such delivery,
(iii) the delivery of Warrant Certificates evidencing the balance, if any, of
the Warrants
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remaining after such delivery, and (iv) such other information as the Company
shall reasonably request.
SECTION 6. DURATION AND EXERCISE OF WARRANTS; EXERCISE PRICE; RIGHT OF
WARRANT HOLDERS.
(a) The Warrants may be exercised on any business day after the Effective
Date of the Company's Second Amended Joint Plan of Reorganization (the
"Effective Date") and terminating at 5:00 p.m., Central time seven years after
the Effective Date of the Plan (as defined therein), or if such day is a day on
which banking institutions in the State of New York are authorized by law to
close, then on the next succeeding day which shall not be such a day (such date
of expiration being hereinafter referred to as the "Expiration Date"). The
Expiration Date may be extended by the Company in its sole discretion from time
to time by a notice given to the Warrant Agent and mailed to the registered
holders of the Warrant Certificates as provided in Section 14. After 5:00 p.m.,
Central time on the Expiration Date, unexercised Warrants will become wholly
void and of no value.
(b) Subject to the provisions of this Agreement, the holder of each
Warrant shall have the right to purchase from the Company (and the Company shall
issue and sell to such holder on the terms and subject to the conditions hereof)
one fully paid and nonassessable Warrant Share at the exercise price in effect
hereunder at such time (the "Exercise Price"), upon surrender to the Company at
the principal office of the Warrant Agent of the Warrant Certificate evidencing
such Warrant, with the Form of Exercise on the reverse thereof duly filled in
and signed, and upon payment of the Exercise Price and any applicable taxes
pursuant to Section 8 in lawful money of the United States of America by
certified or official bank check payable to the order of the Company. The
Exercise Price shall equal the aggregate Allowed Amount of Class 5A and Class 5B
Claims held by holders receiving New Common Stock under the Plan divided by
9,800,000; provided, however, that if at six (6) months after the Effective Date
all Class 5A and Class 5B Claims receiving New Common Stock have not been
finally Allowed, then the per share exercise price shall equal the total of the
aggregate Allowed Amounts and aggregate Disputed Claim amounts of Class 5A and
Class 5B Claims held by holders receiving New Common Stock under the Plan,
divided by 9,800,000. The Exercise Price and the number of Warrant Shares
purchasable upon exercise of a Warrant shall be subject to adjustment as
provided in Section 12.
Subject to Section 8, as soon as practicable after such surrender of a
Warrant Certificate and payment of the Exercise Price in effect hereunder at
such time, the Warrant Agent shall cause to be issued and shall deliver to the
registered holder of such Warrant Certificate in such name or names as such
registered holder may designate, a certificate for the Warrant Share or Warrant
Shares issuable upon the exercise of the Warrant or Warrants evidenced by such
Warrant Certificate. Such certificate shall be deemed to have been issued and
any Person so designated to be named therein shall be deemed to have become the
holder of record of such Warrant Share or Warrant Shares as of the date of the
surrender of such Warrant Certificate and payment of the Exercise Price and any
applicable taxes as provided in this Agreement. If, on the date of surrender of
such Warrant Certificate and payment of such Exercise Price, the transfer books
for the Warrant Shares shall be closed, certificates for the Warrant Shares
shall be issuable on the date on which such books shall next be open (whether
before, on, or after the Expiration
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Date) and until such date the Company shall be under no duty to deliver any
certificate for such Warrant Shares.
The Warrants evidenced by a Warrant Certificate shall be exercisable,
at the election of the registered holder thereof, either as an entirety or, from
time to time, in part. If less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of Warrants are exercised, a new
Warrant Certificate or Certificates shall be issued to the registered holder for
the remaining number of Warrants evidenced by the Warrant Certificate so
surrendered. All Warrant Certificates surrendered upon exercise of Warrants
shall be cancelled by the Warrant Agent.
Notwithstanding any provision herein to the contrary, the Warrant
Agent shall not be required to register shares in the name of any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or other entity or a
government or other agency or political subdivision thereof (each, a "Person")
who acquired a Warrant Certificate (or part thereof) or any Warrant or Warrant
Shares otherwise than in accordance with such Warrant and this Agreement.
The Warrant Agent shall deposit to the account of the Company all
monies received by the Warrant Agent in payment of the Exercise Price of any
Warrant. The Warrant Agent shall account promptly to the Company with respect to
the exercise of Warrants.
(c) No Warrant holder or its transferee, as such, shall be entitled to
vote or to receive dividends or shall otherwise be deemed to be the holder of
Common Shares for any purpose, nor shall anything contained herein or in any
Warrant Certificate be construed to confer upon any Warrant holder, as such, any
of the rights of a stockholder of the Company or any right to vote upon or give
or withhold consent to any action of the Company (whether upon any
reorganization, issuance of securities, reclassification or conversion of Common
Shares, consolidation, merger, sale, lease, conveyance, or otherwise), receive
notice of meetings or other action affecting stockholders (except for notices
expressly provided for in this Agreement) or receive dividends or subscription
rights, until (i) such Warrant Certificate and any other required documentation
shall have been surrendered for exercise accompanied by full and proper payment
of the Exercise Price, each as provided in this Agreement, and (ii) such Person
shall have been deemed to have become a holder of record of such Warrant Shares
pursuant to this Section 6. No holder of Warrants shall, upon the exercise of
Warrants, be entitled to any dividends if the record date with respect to
payment of such dividends shall be a date prior to the date such Warrant Shares
are issued upon exercise of such Warrants.
SECTION 7. OPTIONAL REDUCTION OF EXERCISE PRICE. The Company, in its sole
discretion, without any obligation to do so, shall have the right, at any time,
and from time to time, by action of a majority of the whole Board of Directors
of the Company, to reduce the then-current Exercise Price to such amount (the
"Reduced Exercise Price") and for such period or periods of time, which may be
through the close of business on the Expiration Date (the "Reduced Exercise
Price Period"), as may be deemed appropriate by the Board of Directors of the
Company. Notice of any such Reduced Exercise Price and Reduced Exercise Price
Period shall be given to the registered holders of Warrants in the manner
provided in Section 14 and to
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the Warrant Agent in the manner provided in Section 19. After the termination of
the Reduced Exercise Price Period, the Exercise Price shall be such Exercise
Price which would have been in effect, as adjusted pursuant to Section 12, had
there been no reduction in the Exercise Price pursuant to the provisions of this
Section 7. Any adjustment in the Exercise Price pursuant to Section 12 during
the Reduced Exercise Price Period shall also be made in the Reduced Exercise
Price in the manner specified in Section 12.
SECTION 8. PAYMENT OF TAXES. The Company shall pay all documentary stamp
taxes, if any, attributable to the initial issuance of the Warrant Certificates
or the issuance of the Warrant Shares exercisable therefor; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer of the Warrants after their initial issuance
or with respect to the issuance of Warrant Shares in a name other than that of
the registered holder of the Warrant Certificate upon exercise thereof, and the
Company shall not be required to issue or deliver such certificates unless or
until the 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.
SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATES. If any of the Warrant
Certificates shall be mutilated, lost, stolen or destroyed, the Company may in
its discretion issue, and the Warrant Agent may countersign, in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, and
in lieu of and in substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity or bond, if requested, also satisfactory to
them. Applicants for such substitute Warrant Certificates shall also comply with
such other reasonable regulations and pay such other reasonable charges as the
Company or the Warrant Agent may prescribe.
SECTION 10. RESERVATION OF SHARES. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Shares or its authorized and issued Common Shares
held in its treasury, such number of Common Shares enabling it to satisfy any
obligation to issue the maximum number of Warrant Shares deliverable upon the
exercise of all outstanding Warrants.
Before taking any action which would cause an adjustment pursuant to
Section 12 reducing the Exercise Price below the then par value (if any) of the
Warrant Shares, the Company will take any corporate action which may, in the
opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued upon the
exercise of Warrants will, upon issuance and payment therefor, be duly
authorized, fully paid nonassessable and validly issued and, subject to Section
8, free from all taxes, liens, charges and security interests with respect to
the issue thereof.
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The Warrant Agent is authorized to make requisition from time to time from
a transfer agent for the Common Shares (including the Company if then acting as
a transfer agent) stock certificates required to honor exercises of outstanding
Warrants. The Company hereby authorizes its present and any future such transfer
agent to comply with all such requests. The Company will supply such transfer
agent with duly executed stock certificates for such purpose and will itself
provide or otherwise make available any cash which may be payable as provided in
Section 13 of this Agreement.
SECTION 11. OBTAINING STOCK EXCHANGE LISTINGS. The Company will use its
commercially reasonable efforts to have each of the (i) Warrants and (ii)
Warrant Shares quoted on any securities exchanges on which the then outstanding
Common Shares are listed.
SECTION 12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
PURCHASABLE. The Exercise Price and the number of Warrant Shares purchasable
upon the exercise of each Warrant are subject to adjustment from time to time as
provided in this Section 12.
(a) If, prior to the Expiration Date, the Company shall, at any time after
the date of this Agreement, issue any Common Shares as a stock dividend to the
holders of Common Shares, subdivide, combine or reclassify the outstanding
Common Shares into a greater or lesser number of Common Shares (any such
issuance, subdivision, combination or reclassification being herein called a
"Change of Shares"), then, and thereafter upon any future Change of Shares, the
Exercise Price in effect immediately prior to such Change of Shares shall be
changed to a price (including any applicable fraction of a cent) determined by
multiplying (x) the Exercise Price in effect immediately prior to the Change of
Shares by (y) a fraction, the numerator of which shall be the number of Common
Shares outstanding immediately prior to the Change of Shares, and the
denominator of which shall be the sum of the number of Common Shares outstanding
immediately following the Change of Shares. Such adjustment shall be made
successively whenever such an issuance is made.
(b) If, prior to the Expiration Date, the Company shall, at any time after
the date of this Agreement, issue rights, options or warrants to all holders of
Common Shares entitling them (for a period expiring within 60 calendar days
after the date of such issuance) to subscribe for or purchase Common Shares (or
securities exchangeable for or convertible into Common Shares) at a price per
Common Share (or having an exchange value or a conversion price per Common
Share, if a security exchangeable for or convertible into Common Shares) less
than the current market price per Common Share (as defined in Section 12(i)) on
the record date set for such issuance, the Exercise Price to be in effect after
such record date shall be determined by multiplying (x) the Exercise Price in
effect immediately prior to such record date by (y) a fraction, the numerator of
which shall be the number of Common Shares outstanding on such record date plus
the number of Common Shares which the aggregate offering price of the total
number of Common Shares so to be offered (or the aggregate initial exchange
value or conversion price of the exchangeable or convertible securities so to be
offered) would purchase at the current market price and the denominator of which
shall be the number of Common Shares outstanding on the record date plus the
number of additional Common Shares to be offered for subscription or purchase
(or for which or into which the exchangeable or convertible securities
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so to be offered are initially exchangeable or convertible); provided, however,
that no adjustment shall be made if the Company grants the Warrant holder the
right to receive, upon the exercise of the Warrants at any time after the
issuance described in this paragraph (b), such rights, options or warrants that
the Warrant holder would have been entitled to receive had the Warrants been
exercised prior to the record date (but exercisable when issued to the holder).
If such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of that consideration shall be as
determined by the Board of Directors of the Company. The foregoing adjustment
shall be made successively immediately following each such record date. If such
rights, options or warrants are not so issued, the Exercise Price shall again be
adjusted to be the Exercise Price that would then be in effect if such record
date had not been fixed, but such subsequent adjustment shall not affect the
number of shares issued upon any exercise of Warrants prior to the date such
subsequent adjustment is made. On the termination of any right to convert or
exchange securities convertible into Common Shares, the Exercise Price shall be
immediately readjusted to such amount as would have obtained had the adjustment
made upon the granting or issuance of such rights, options or warrants been made
upon the basis of the issuance or sale of only the number of Common Shares
actually issued pursuant to such rights, options or warrants, but such
subsequent adjustment shall not affect the number of shares issued upon any
exercise of Warrants prior to the date such subsequent adjustment is made.
(c) If, prior to the Expiration Date, the Company shall, at any time after
the date of this Agreement, make a distribution to all holders of Common Shares
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing Person) of evidences of
indebtedness, options, warrants, securities, cash or assets (other than a
transaction to which paragraph (a) or (b) above applies), the Exercise Price to
be in effect after the record date set for such distribution shall be determined
by multiplying (x) the Exercise Price in effect immediately prior to such record
date by (y) a fraction, the numerator of which shall be the then-current market
price per Common Share on such record date less the fair market value (as
determined in good faith by the Board of Directors of the Company) of the
portion of the evidences of indebtedness, securities, cash or assets so
distributed attributable to one Common Share, and the denominator of which shall
be the then-current market price per Common Share on such record date; provided,
however, that no adjustment shall be made if the Company grants the Warrant
holder the right to receive, upon the exercise of the Warrants at any time after
the distribution described in this paragraph (c), such evidences of
indebtedness, options, warrants, securities, cash or assets that the Warrant
holder would have been entitled to receive had the Warrants been exercised prior
to the record date. The foregoing adjustment shall be made successively
immediately following each such record date.
(d) Upon each adjustment of the Exercise Price pursuant to this Section
12, the total number of Common Shares purchasable upon the exercise of each
Warrant shall (subject to the provisions contained in paragraph (e) hereof) be
such number of shares (calculated to the nearest hundredth) purchasable at the
Exercise Price in effect immediately prior to such adjustment multiplied by a
fraction, the numerator of which shall be the Exercise Price in effect
immediately prior to such adjustment and the denominator of which shall be the
Exercise Price in effect immediately after such adjustment. Common Shares owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of that computations under this Section 12.
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(e) The Company may elect, upon any adjustment of the Exercise Price
hereunder, to adjust the number of Warrants outstanding in lieu of the
adjustment in the number of Warrant Shares purchasable upon the exercise of each
Warrant as provided herein (the "Warrant Adjustment"). Following a Warrant
Adjustment, each Warrant outstanding after such adjustment shall continue to
represent the right to purchase one Common Share. Each Warrant held of record
prior to such adjustment shall become that number of Warrants (calculated to the
nearest hundredth) determined by multiplying the number one by a fraction, the
numerator of which shall be the Exercise Price in effect immediately prior to
such adjustment and the denominator of which shall be the Exercise Price in
effect immediately following the Warrant Adjustment. Upon each Warrant
Adjustment, the Company shall, as promptly as practicable, cause to be
distributed to each registered holder of Warrant Certificates on the date of
such Warrant Adjustment Warrant Certificates evidencing, subject to Section 13
hereof, the number of additional Warrants to which such holder shall be entitled
as a result of such adjustment or, at the option of the Company, cause to be
distributed to such holder in substitution and replacement for the Warrant
Certificates held by such holder prior to the date of the Warrant Adjustment
(and upon surrender thereof, if required by the Company) new Warrant
Certificates evidencing the number of Warrants to which such holder shall be
entitled after such adjustment.
(f) In any case in which this Section 12 shall require that any adjustment
in the Exercise Price be made effective as of immediately after a record date
for a specified event, the Company may elect to defer until the occurrence of
the event the issuing to the holder of any Warrant exercised after that record
date the Common Shares and other capital stock of the Company, if any, issuable
upon the exercise over and above the Common Shares and other capital stock of
the Exercise Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to the holder a due xxxx or other appropriate
instrument evidencing the holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
(g) In case of (i) any reclassification, capital reorganization or other
change of outstanding Common Shares (other than a transaction to which paragraph
(a), (b) or (c) above applies), (ii) any consolidation, merger or other business
combination of the Company with or into another Person (other than a
consolidation or merger in which the Company is the continuing Person and which
does not result in any reclassification, capital reorganization or other change
of outstanding Common Shares), or (iii) any sale or conveyance to another Person
of the property of the Company as, or substantially as, an entirety (other than
a sale/leaseback, mortgage or other financing transaction) (each, a "Change of
Control Transaction"), the Company shall cause effective provision to be made so
that each holder of a Warrant then outstanding shall have the right thereafter,
by exercising such Warrant, to purchase the kind and number of shares of stock
or other securities or property (including cash) such Warrant holder would have
received upon such Change of Control Transaction if such Warrant holder had
exercised its Warrant(s) immediately prior to the effective date of such Change
of Control Transaction. If, after an adjustment pursuant to this Section 12, a
holder of a Warrant may receive shares of two or more classes of capital stock
of the Company upon exercise of such Warrant, the Board of Directors of the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege
9
and Exercise Price of each such class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to the Common
Shares in this Agreement. Prior to or simultaneously with the consummation of
any Change of Control Transaction, the successor Person (if other than the
Company) shall enter into a supplemental Warrant Agreement including provision
for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 12.
(h) For the purposes of adjustments required by paragraph (d) above, the
Common Shares (or securities exchangeable for or convertible into Common Shares)
which the holder of any rights, options, or warrants shall be entitled to
subscribe for or purchase shall be deemed to be issued and outstanding as of the
date of sale, issuance or distribution of such securities and the consideration,
if any, received by the Company therefor shall be deemed to be the consideration
received by the Company for such securities, plus the consideration or premiums
stated in such securities to be paid for the Common Shares (or securities
exchangeable for or convertible into Common Shares) covered thereby.
(i) For the purpose of any computation under paragraphs (b) or (c) above,
the current market price per Common Share on any date shall be deemed to be the
average of the daily closing prices per Common Share for 15 consecutive trading
days commencing 20 trading days before such date. The closing price for each day
shall be the last reported sale price regular way or, if no such sale takes
place on such day, the average of the closing bid and asked prices regular way
of a Common Share as reported (i) by the principal national securities exchange
on which the Common Shares are then listed or admitted to trading, or (ii) if
not then listed or admitted to trading, in the over-the-counter market as
reported by Nasdaq National Market or any comparable system, or (iii) if not
then listed, as furnished by two members of the NASD selected from time to time
in good faith by the Board of Directors of the Company for that purpose.
(j) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 12(j)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 12 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(k) For the purpose of this Section 12, the term "Common Shares" or
"Shares of Common Stock" shall mean (i) the class of stock designated as the
Common Shares of the Company at the date of this Agreement, or (ii) any other
class of stock resulting from successive changes or reclassification of such
shares consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value.
SECTION 13. FRACTIONAL SHARES. The Company shall not be required to issue
fractions of Warrant Shares upon exercise of the Warrants or to distribute Share
Certificates which evidence fractional Warrant Shares. If a holder of Warrants
exercises more than one Warrant at the same time, the Warrant Shares issuable
shall be based on the total number of Warrants to be exercised at such time. In
lieu of fractional Warrant Shares, there shall be paid to
10
the registered holders of Warrant Certificates at the time such Warrants are
exercised an amount in cash equal to the same fraction of the current market
price of the Warrant Shares as determined pursuant to Section 12(i).
SECTION 14. NOTICES TO WARRANT HOLDERS.
(a) Except in the case of an adjustment pursuant to Section 7, whenever
the number of Warrant Shares purchasable upon the exercise of each Warrant or
the Exercise Price is adjusted as provided herein, the Company, within 20 days
thereafter, shall (i) cause to be filed with the Warrant Agent a certificate of
the Company signed by its Chairman of the Board, its President or one of its
Vice Presidents setting forth the number of Warrant Shares purchasable upon the
exercise of each Warrant and the Exercise Price for such Warrant Shares after
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which the calculations are based, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause notice of such adjustment to be mailed by first-class mail, postage
prepaid, to each registered holder of a Warrant Certificate at the address
appearing on the Warrant Register. Where appropriate, such notice may be mailed
in advance and included as a part of any notice required to be mailed under any
other provision of this Section 14.
(b) Upon the fixing of a date for redemption, as provided in Section 6,
the establishing of the Exercise Date, as provided in Section 6, or the fixing
of a Reduced Exercise Price and Reduced Exercise Price Period, as provided in
Section 7, the Company shall cause notice of such redemption or Reduced Exercise
Price and Reduced Exercise Price Period, as the case may be, to be mailed by
first-class mail, postage prepaid, to each registered holder of a Warrant
Certificate at the address appearing on the Warrant Register.
(c) If at any time prior to the expiration of the Warrants:
(i) the Company shall authorize the issuance to all holders of
Common Shares of rights, options or warrants to subscribe for or
purchase Common Shares or of any other subscription rights or
warrants; or
(ii) the Company shall authorize the distribution to all holders of
Common Shares of evidences of indebtedness, securities, cash or
assets; or
(iii) the Board of Directors of the Company shall have approved of any
consolidation or merger to which the Company is a party and for which
approval by holders of Common Shares is required, or of the conveyance
or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Shares
(other than a change in par value, if any, or as a result of a
subdivision or combination); or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
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(v) the Company proposes to take any other action which would
require an adjustment of the Exercise Price pursuant to Section 12;
then the Company shall cause to be filed with the Warrant Agent and
shall cause notice of the proposed action and the record date for the
determination of holders of Common Shares entitled to vote on such
matter to be mailed to each of the registered holders of the Warrant
Certificates at his address appearing on the Warrant Register, at
least 15 days (or 10 days in any case specified in clauses (i) or (ii)
above) prior to such record date, or promptly with respect to those
events for which there is no record date, by first-class mail, postage
prepaid, which notice shall state (i) the date as of which the holders
of record of Common Shares to be entitled to receive any such rights,
warrants or distribution are to be determined, or (ii) the date on
which any such consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
record of Common Shares shall be entitled to exchange their Common
Shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give any notice
required by this Section 14(c) or any defect therein shall not affect
the legality or validity of the transaction to which it relates.
SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any
Person into which the Warrant Agent may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any Person
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such Person would be eligible for appointment as a successor Warrant Agent under
the provisions of Section 17. If at the time such successor to the Warrant Agent
shall succeed to the agency created by this Agreement and at that time any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and if at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; and in all such
cases such Warrant Certificates shall have the full force and effect provided in
the Warrant Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at such
time the Warrant Certificates shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name, and if at
that time any of the Warrant Certificates shall not have been countersigned, the
Warrant Agent may countersign such Warrant Certificates either in its prior name
or in its changed name, and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this Agreement.
SECTION 16. WARRANT AGENT. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement, upon the following terms and conditions,
all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
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(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate in
respect of any action taken, suffered or omitted by any of them hereunder in
good faith and in accordance with the opinion or the advice of such counsel.
(d) Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman, President or a Vice
President of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(e) Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed by
the Chairman of the Board of Directors, President or any Vice President (unless
other evidence in respect thereof is herein specifically prescribed). The
Warrant Agent shall not be liable for any action taken, suffered or omitted by
it in accordance with such notice, statement, instruction, request, direction,
order or demand.
(f) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution and performance
of this Agreement, to reimburse the Warrant Agent for expenses, taxes and other
charges reasonably incurred by the Warrant Agent in the execution and
performance of this Agreement and to indemnify the Warrant Agent and save it
harmless against any and all losses, expenses and liabilities arising out of
anything done or omitted by the Warrant Agent in the execution and performance
of this Agreement except as a result of its gross negligence, willful misconduct
or bad faith. The provisions of this Section 16(f) shall survive the expiration
of the Warrants and the termination of this Agreement.
(g) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be incurred, but
this provision shall not affect the power of the Warrant Agent to take such
action as it may consider proper, whether with or without any such security or
indemnity.
13
(h) Except as otherwise required by law, the Warrant Agent, and any
stockholder, director, officer or employee of the Warrant Agent, may buy, sell
or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though they were not the Warrant Agent under this Agreement,
or a stockholder, director, officer or employee of the Warrant Agent, as the
case may be. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company, or for any other legal entity.
(i) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provision hereof. The Warrant
Agent shall be liable hereunder only for its own gross negligence or willful
misconduct or actions or omissions taken in bad faith; provided, however, that
the Warrant Agent shall not be liable for any indirect, special, punitive or
consequential damages.
(j) The Warrant Agent shall at no time be under any duty or responsibility
to any holder of any Warrant Certificate to make or cause to be made any
adjustment of the Exercise Price, the number of the Warrant Shares or other
securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments or
with respect to the nature or extent of any such adjustment, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at a time be
issued or delivered upon the exercise of any Warrant or at the expiration of the
period during which the Warrants are exercisable for any unexercised Warrant or
with respect to whether any such Warrant Shares or other securities will when
issued be validly issued and fully paid and nonassessable, and makes no
representation with respect thereto.
(k) The Warrant Agent may assume that any Warrant exercised is permitted
to be exercised under applicable law and shall have no liability for acting in
reliance upon such assumption. Warrant Agent shall not be responsible for
failure by the Company's transfer agent to supply Common Shares.
(l) The Warrant Agent shall not incur any liability hereunder if by reason
of any act of God or war or other circumstances beyond its control, it, or its
employees, officers or directors shall be prevented, delayed or forbidden from
or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of this Agreement it is provided
shall be done or performed or by reason of any nonperformance or delay, caused
by any such act of God or war or other circumstances beyond its control.
SECTION 17. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement after giving 30 days prior
written notice to the Company. The Warrant Agent may be removed by the Company
by like notice to the Warrant Agent. If the office of Warrant Agent becomes
vacant by resignation, removal, incapacity to act, or otherwise, the Company
shall appoint a successor to the Warrant Agent
14
(which may be the Company). If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
incapacity or resignation by the Warrant Agent or by the registered holder of a
Warrant Certificate, then the registered holder of any Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of a successor
to the Warrant Agent. Pending appointment of a successor to the Warrant Agent,
either by the Company or by such a court, the duties of the Warrant Agent shall
be carried out by the Company. Any successor Warrant Agent whether appointed by
the Company or by such a court shall be a bank or trust company, in good
standing, incorporated under the laws of the United States of America or of a
state of the United States of America, and must have at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
$500,000. After appointment, the successor Warrant Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. The Company shall
cause notice of the appointment of any successor Warrant Agent to be mailed by
first-class mail, postage prepaid, to each registered holder of a Warrant
Certificate at his address appearing on the Warrant Register. Failure to give
any notice provided for in this Section 17, or any defect therein, shall not,
however, affect the legality or validity of the appointment of a successor
Warrant Agent.
SECTION 18. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing Warrants in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares of stock
or other securities or property purchasable under the Warrant Certificates made
in accordance with the provisions of this Agreement.
SECTION 19. NOTICES TO COMPANY AND WARRANT AGENT. Any notice pursuant to
this Agreement to be given by the Warrant Agent or by the registered holder of
any Warrant Certificate to the Company shall be sufficiently given if sent by
first-class mail, postage prepaid, addressed to the Company as follows:
Imperial Sugar Company
One Imperial Square
0000 Xxxxxxx 00-X
Xxxxx Xxxx, Xxxxx 00000
Attention: General Counsel
(or to such other address as the Company may have furnished in writing to the
Warrant Agent for this purpose).
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed to
the Warrant Agent as follows:
00
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx (22W)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Assistant Vice-President
(or to such other address as the Warrant Agent may have furnished in writing to
the Company for this purpose).
SECTION 20. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of
any subsequent transfer agent for Common Shares, or any other shares of the
Company's capital stock issuable upon the exercise of the Warrants, the Company
will file with the Warrant Agent a statement setting forth the name and address
of such subsequent transfer agent.
SECTION 21. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity, to correct
or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, to make any necessary changes as
required by Sections 6, 7 or 12, or to make any other provisions in regard to
matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the holders of
the Warrant Certificates. The Warrants may otherwise be amended only if the
Company has obtained the consent of the holders of Warrants representing a
majority of Warrant Shares issuable upon exercise of all outstanding Warrants.
Until an amendment becomes effective, such consent of any holder of a Warrant
Certificate shall bind all subsequent holders thereof. Once such amendment
becomes effective, it shall bind all holders of Warrant Certificates.
SECTION 22. SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 23. TERMINATION. This Agreement shall terminate at 5:00 p.m.,
Central time on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised or redeemed. The provisions of Section 16 shall survive such
termination.
SECTION 24. 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 without regard to conflicts of law provisions, provided,
however, that the rights and obligations of the Warrant Agent shall be governed
by and construed in accordance with the laws of the State of New York. The
parties hereto hereby waive the right to a jury trial in any action arising out
of this Agreement. Any dispute arising out of this Agreement shall be litigated
in the borough of Manhattan, New York City, New York, and the parties hereby
submit to the jurisdiction of such courts and acknowledge that such courts are a
convenient forum.
16
SECTION 25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Warrant Agent and
the registered holders of the Warrant Certificates 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, the Warrant Agent and the registered
holders of the Warrant Certificates.
SECTION 26. 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 all such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
IMPERIAL SUGAR COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice-President
THE BANK OF NEW YORK,
as Warrant Agent
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
---------------------------------
Title: Assistant Vice President
--------------------------------
