Exhibit 4.28
SERIES B WARRANT AGREEMENT
SERIES B WARRANT AGREEMENT, dated as of October 20, 2000 (this
"Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation
(the "Company"), and Computershare Investor Services, LLC, a Delaware
limited liability company, as Warrant Agent (the "Warrant Agent").
WHEREAS, in connection with the Plan, the Company has agreed to
issue certain warrants (the "Warrants") evidenced by the Warrant
Certificates substantially in the form of Exhibit A hereto to purchase
shares of the Company's Common Stock, no par value (the "Common Stock"), at
the exercise price of $30.00 per share (the "Exercise Price") from the
Original Issuance Date until October 20, 2005 (the "Exercise Period"),
pursuant to the terms of such Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with
the issuance of Series B Warrant Certificates (together with any
certificates issued in replacement or substitution therefor, the "Warrant
Certificates") to the registered holders (the "Holders") and other matters
as provided herein;
NOW, THEREFORE, in consideration of the foregoing and the covenants
of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the terms and conditions set forth herein, the
parties hereby 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 hereinafter in this Agreement, and the
Warrant Agent hereby accepts such appointment.
Section 2. Registration. The Company shall register each
Warrant upon records to be maintained by the Company for that purpose in
the name of the record holder of such Warrant from time to time. The
Company and the Warrant Agent may deem and treat the registered Holder of
each Warrant as the absolute owner thereof for the purpose of any exercise
thereof, any distribution to the Holder thereof and for all other purposes.
Section 3. Transfers and Exchanges of Warrants and Warrant
Shares.
(a) Registration of Transfers and Exchanges. The
Company and the Warrant Agent shall register the transfer of any Warrants
upon records to be maintained by the Company for that purpose upon
surrender of a Warrant Certificate, with the Form of Assignment attached
thereto appropriately completed and duly signed, to the Company or the
Warrant Agent at the office specified in or pursuant to Section 4(c). Upon
any such registration of transfer, a new Warrant Certificate, in
substantially the form of Exhibit A hereto, evidencing the Warrants so
transferred shall be issued to the transferee and a new Warrant
Certificate, in similar form, evidencing the remaining Warrants not so
transferred, if any, shall be issued to the then registered Holder thereof.
(b) Warrants Exchangeable for Different
Denominations. Each Warrant Certificate is exchangeable, upon the surrender
thereof by the Holder thereof at the office of the Company or the Warrant
Agent specified in or pursuant to Section 4(c), for new Warrant
Certificates, in substantially the form of Exhibit A hereto, evidencing in
the aggregate the right to purchase the number of Warrant Shares which may
then be purchased thereunder, each of such new Warrant Certificates to be
dated the date of such exchange and to represent the right to purchase such
number of Warrant Shares as shall be designated by said Holder thereof at
the time of such surrender.
Section 4. Duration and Exercise of Warrants.
(a) Exercise. Each Warrant shall be exercisable by
the registered Holder thereof on any Business Day during the Exercise
Period.
(b) Ratio. Subject to the provisions of the Warrant
Certificates and this Agreement, including adjustments to the number of
Warrant Shares issuable on the exercise of each Warrant and to the Exercise
Price pursuant to Section 8, the Holder of each Warrant during the Exercise
Period shall have the right to purchase from the Company (and the Company
shall be obligated to issue and sell to such holder of a Warrant) at the
Exercise Price one fully paid Warrant Share which is non-assessable.
(c) Payment of Exercise Price. Subject to Sections 5,
9 and 11, upon surrender of each Warrant Certificate, with the Form of
Election to Purchase attached thereto duly filled in and signed, to the
Company at its office at 00000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Chief Financial Officer, to the Warrant Agent at its office at
Xxx Xxxxx XxXxxxx Xx., Xxxxxxx, Xxxxxxxx 00000, or at such other address as
the Company or the Warrant Agent may specify in writing to the then
registered holder of the Warrants, and upon either (i) payment of the
Exercise Price multiplied by the number of Warrant Shares then issuable
upon exercise of the Warrants being exercised in lawful money of the United
States of America or (ii) notice by the registered Holder of the Warrant
Certificate of its election to exercise the Warrants evidenced by such
Warrant Certificate on a cashless basis in the manner described in
subsection (d) of this Section 4, all as specified by the Holder of the
Warrant Certificate in the Form of Election to Purchase, the Company or the
Warrant Agent shall promptly issue and cause to be delivered to or upon the
written order of the registered Holder of such Warrants, and in such name
or names as such registered Holder may designate, one or more certificates
for the Warrant Shares issued upon such exercise of such Warrants. Any
Person so designated to be named therein shall be deemed to have become
Holder of record of such Warrant Shares as of the Date of Exercise of such
Warrants.
The "Date of Exercise" of any Warrant means the date on
which the Company or the Warrant Agent shall have received (i) the Warrant
Certificate representing such Warrants, with the Form of Election to
Purchase attached thereto appropriately completed and duly signed, and (ii)
unless the Holder of such Warrant Certificate makes the election described
in subsection (d) of this Section 4, payment of the Exercise Price for such
Warrant.
(d) Cashless Exercise. In lieu of paying the Exercise
Price upon exercise of the Warrants, the Holder of any Warrant Certificate
may elect to receive a number of Warrant Shares whose aggregate Market
Price as of the Date of Exercise is equal to the fair value of such Warrant
Certificate (or the portion hereof evidencing the number of Warrants then
being exercised) on such date, in which event the Company shall issue to
the Holder of such Warrant Certificate, upon receipt of notice of such
election, a number of Warrant Shares equal to (i) the number of Warrant
Shares that would otherwise be issuable upon payment of the Exercise Price
of the Warrants then being exercised minus (ii) the number of shares of
Common Stock having an aggregate Market Price equal to the product obtained
by multiplying the Exercise Price by the number of Warrant Shares otherwise
issuable upon payment of the Exercise Price of the Warrants then being
exercised.
(e) Partial Exercise. The Warrants evidenced by each
Warrant Certificate shall be exercisable, either as an entirety or, from
time to time, for part only of the number of Warrants evidenced by such
Warrant Certificate. If less than all of the Warrants evidenced by any
Warrant Certificate are exercised at any time, the Company or the Warrant
Agent shall issue, at its expense, to the relevant Holder, a new Warrant
Certificate, in substantially the form of the surrendered Warrant
Certificate, for the remaining number of Warrants evidenced by such Warrant
Certificate.
Section 5. Payment of Taxes. The Company will pay all
transfer and stock issuance taxes attributable to the issuance of the
Warrants and the Warrant Shares; provided, however, that the Company shall
not be required to pay any tax in respect of the transfer of Warrants, or
the issuance or delivery of certificates for Warrant Shares or other
securities in respect of the Warrant Shares upon the exercise of Warrants,
to a Person other than a then existing registered Holder of Warrants or an
Affiliate of such registered Holder.
Section 6. Mutilated or Missing Warrant Certificate. If a
Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company or the Warrant Agent will, upon request by the registered Holder of
such Warrant Certificate, issue to such Holder, in exchange for and upon
cancellation of the mutilated Warrant Certificate, or in substitution for
the lost, stolen or destroyed Warrant Certificate, a new Warrant
Certificate, in substantially the form of the replaced Warrant Certificate,
of like tenor and representing the equivalent number of Warrants, but, in
the case of loss, theft or destruction, only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of the Warrant Certificate and, if requested by the Company or
the Warrant Agent, a written agreement of indemnity and/or a surety bond
from the Holder satisfactory to the Company.
Section 7. Reservation, Listing and Issuance of Warrant
Shares.
(a) Available Warrant Shares. The Company will at all
times have authorized, and reserve and keep available, free from preemptive
rights, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon the exercise of the Warrants, the number of Warrant
Shares issuable upon exercise of the Warrants.
(b) Adjustments Below Par. Before taking any action
which could cause an adjustment pursuant to Section 8 reducing the Exercise
Price below the then par value (if any) of the Warrant Shares, the Company
will take any corporate action which may be necessary in order that the
Company may validly and legally issue at the Exercise Price as so adjusted
Warrant Shares that are fully paid and non-assessable.
(c) Warrant Shares Duly Authorized. The Company
covenants that all Warrant Shares will, upon issuance in accordance with
the terms of this Agreement, be (i) duly authorized, validly issued, fully
paid and non-assessable, and (ii) free from all taxes with respect to the
issuance thereof and from all adverse claims, liens, pledges, encumbrances,
charges and security interests created by the Company.
Section 8. Adjustments of Price and Number of Warrant Shares.
(a) Adjustment of Number of Warrant Shares Issuable.
Upon each adjustment of the Exercise Price pursuant to this Section 8, the
Holder of a Warrant shall be entitled to purchase, at the Exercise Price in
effect after such adjustment, a number of Warrant Shares equal to the
amount obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon
exercise of such Warrant immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
(b) Adjustment of Price upon Issuance of Common
Stock. If and whenever after the date hereof, the Company shall issue or
sell any shares of Common Stock for a consideration per share less than
100% of the Market Price (as hereinafter defined) at the time of such issue
or sale, then forthwith upon such issue or sale, the Exercise Price shall
be reduced to the price determined as follows: by multiplying the then
existing Exercise Price by a fraction (A) the numerator of which shall be
the number of shares of Common Stock Deemed Outstanding immediately prior
to such issue or sale plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock so
to be offered would purchase at the current Market Price and (b) the
denominator of which shall be the number of shares of Common Stock Deemed
Outstanding plus the number of additional shares of Common Stock to be
offered for issue or sale.
(c) Additional Adjustments. For the purposes of
subsection (b) of this Section, the following clauses shall also be
applicable:
(i) Issuance of Rights or Options. If at any time
the Company shall grant (whether directly or by assumption in a
merger in which the Company is the surviving Company or otherwise)
any rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or securities convertible
into or exchangeable for Common Stock (such convertible or
exchangeable stock or securities being herein called "Convertible
Securities") whether or not such rights or options or the right to
convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such rights or options or upon
conversion or exchange of such Convertible Securities (determined
as provided below) shall be less than the Market Price in effect
immediately prior to the time of the granting of such rights or
options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon
conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such rights or
options shall (as of the date of granting of such rights or
options) be deemed to have been issued for such price per share,
and the Exercise Price shall be adjusted in accordance with Section
8(b). Except as provided in clause (iii) of this subsection, no
further adjustments of any Exercise Price shall be made upon the
actual issue of such Common Stock or of such Convertible Securities
upon exercise of such rights or options or upon the actual issue of
such Common Stock upon conversion or exchange of such Convertible
Securities. For the purposes of this clause (i), the price per
share for which Common Stock is issuable upon the exercise of any
such rights or options or upon conversion or exchange of any such
Convertible Securities shall be determined by dividing (A) the
total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or options, plus the
minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such rights or options, plus, in
the case of such rights or options which relate to Convertible
Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof,
by (B) the total maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon conversion or
exchange of all such Convertible Securities issuable upon the
exercise of such rights or options.
(ii) Issuance of Convertible Securities. If the
Company shall issue (whether directly or by assumption in a merger
in which the Company is the surviving corporation or otherwise) or
sell any Convertible Security, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the
price per share for which Common Stock is issuable upon conversion
or exchange of such Convertible Securities (determined as provided
below) shall be less than the Market Price in effect immediately
prior to the time of such issue or sale, then the total maximum
number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall (as of the date
of the issue or sale of such Convertible Securities) be deemed to
have been issued for such price per share, and the Exercise Price
shall be adjusted in accordance with Section 8(b), provided that
(A) except as provided in clause (iii) of this subsection, no
further adjustments of any Exercise Price shall be made upon the
actual issue of such Common Stock upon conversion or exchange of
such Convertible Securities, and (B) if any such issue or sale of
such Convertible Securities is made upon exercise of any rights to
subscribe for or to purchase or any option to purchase any such
Convertible Securities for which adjustments of any Exercise Price
have been or are to be made pursuant to other provisions of this
subsection (c), no further adjustment of any Exercise Price shall
be made by reason of such issue or sale. For the purposes of this
clause (ii), the price per share for which Common Stock is issuable
upon conversion or exchange of Convertible Securities shall be
determined by dividing (C) the total amount, if any, received or
receivable by the Company as consideration for the issue or sale of
such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (D) the total maximum number of
shares of Common Stock issuable upon the conversion or exchange of
all such Convertible Securities.
(iii) Readjustments. If the purchase price
provided for in any rights or options referred to in clause (i)
above, or the additional consideration, if any, payable upon the
conversion or exchange of Convertible Securities referred to in
clause (i) or (ii) above, or the rate at which any Convertible
Securities referred to in clause (i) or (ii) above are convertible
into or exchangeable for Common Stock, shall be reduced, then the
Exercise Price in effect at the time of such event shall forthwith
be readjusted to the Exercise Price which would have been in effect
at such time had such rights, options or Convertible Securities
then outstanding provided for such reduced purchase price,
additional consideration or conversion rate, as the case may be, at
the time initially granted, issued or sold. On the expiration of
any such option or right or the termination of any such right to
convert or exchange such Convertible Securities, the Exercise Price
and number of Warrant Shares issuable pursuant hereto then in
effect shall be readjusted to the Exercise Price and number of
Warrant Shares which would have been in effect at the time of such
expiration or termination had such warrant, right, option or
Convertible Security never been issued, and the shares of Common
Stock issuable thereunder shall no longer be Common Stock Deemed
Outstanding.
(iv) Consideration for Stock. If any shares of
Common Stock or Convertible Securities or any rights or options to
purchase any such Common Stock or Convertible Securities shall be
issued or sold for cash, the consideration received therefor shall
be deemed to be the amount received by the Company therefor,
without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
Company in connection therewith. If any shares of Common Stock or
Convertible Securities or any rights or options to purchase any
such Common Stock or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration as determined
reasonably and in good faith by the board of directors of the
Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
Company in connection therewith. If the Company shall declare or
pay a dividend or make any other distribution upon any stock of the
Company payable in Common Stock, Convertible Securities or options,
warrants or rights to purchase Common Stock or Convertible
Securities, the securities issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without
consideration. If any shares of Common Stock or Convertible
Securities or any rights or options to purchase such shares of
Common Stock or Convertible Securities shall be issued in
connection with any merger or consolidation in which the Company is
the surviving corporation (other than any consolidation or merger
in which the previously outstanding shares of Common Stock of the
Company shall be changed into or exchanged for the stock or other
securities of another corporation), the amount of consideration
therefor shall be deemed to be the fair value as determined
reasonably and in good faith by the board of directors of the
Company or such portion of the assets and business of the non-
surviving corporation as such board may reasonably and in good
faith determine to be attributable to such shares of Common Stock,
Convertible Securities, rights or options, as the case may be. In
the event of any consolidation or merger of the Company in which
the Company is not the surviving corporation or in which the
previously outstanding shares of Common Stock of the Company shall
be changed into or exchanged for the stock or other securities of
another entity or in the event of any sale of all or substantially
all of the assets of the Company for stock or other securities of
any entity, the Company shall be deemed to have issued a number of
shares of its Common Stock for stock or securities or other
property of such entity computed on the basis of the actual
exchange ratio on which the transaction was predicated and for a
consideration equal to the fair market value on the date of such
transaction of all such stock or securities or other property of
such entity, and if any such calculation results in adjustment of
the Exercise Price in accordance with Section 8(b), the
determination of the number of shares of Common Stock issuable upon
exercise of the Warrants immediately prior to such merger,
consolidation or sale, for purposes of Section 8(e), shall be made
after giving effect to such adjustment of the Exercise Price.
(v) Record Date. If the Company shall take a
record of the holders of its Common Stock for the purpose of
entitling them (A) to receive a dividend or other distribution
payable in Common Stock or in Convertible Securities or (B) to
rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of
the shares of Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other
distribution or the date of the granting of such right, as the case
may be.
(vi) Treasury Shares. The number of shares of
Common Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale
of Common Stock for the purposes of this Section 8.
(d) Subdivision or Combination of Stock. If the
Company shall at any time subdivide (whether by stock split, stock
dividend, recapitalization or otherwise) the outstanding shares of Common
Stock into a greater number of shares or pay a dividend or make a
distribution to holders of Common Stock in the form of Common Stock, the
Exercise Price in effect immediately prior to such subdivision, payment or
distribution shall be proportionately reduced; conversely, if the
outstanding shares of Common Stock shall be combined into a smaller number
of shares (whether by reverse stock split or otherwise), the Exercise Price
in effect immediately prior to such combination shall be proportionately
increased.
(e) Adjustments for Consolidation, Merger, Sale of
Assets, Reorganization, etc. If the Company (i) consolidates with or merges
into any other entity and is not the continuing or surviving corporation of
such consolidation or merger, or (ii) permits any other entity to
consolidate with or merge into the Company and the Company is the
continuing or surviving corporation but, in connection with such
consolidation or merger, the Common Stock is changed into or exchanged for
stock or other securities of any other corporation or cash or any other
assets, or (iii) transfers all or substantially all of its properties and
assets to any other entity, or (iv) effects a recapitalization, capital
reorganization or reclassification of the capital stock of the Company in
such a way that holders of Common Stock shall be entitled to receive stock,
securities, cash or assets with respect to or in exchange for Common Stock
(each of the transactions referred to in the foregoing clauses (i) through
(iv) being an "Organic Change"), then, and in each such case, proper
provision shall be made in form and substance reasonably satisfactory to
the Holders so that, upon the basis and upon the terms and in the manner
provided in this subsection (f), the holder of this Warrant Certificate,
upon the exercise of each Warrant at any time after the consummation of
such Organic Change, shall be entitled to receive (at the aggregate
Exercise Price in effect for all Warrant Shares issuable upon such exercise
immediately prior to such consummation as adjusted to the time of such
transaction), in lieu of shares of Common Stock issuable upon such exercise
prior to such consummation, the stock and other securities, cash and assets
to which such holder would have been entitled upon such consummation if
such holder had so exercised such Warrant immediately prior thereto
(subject to adjustments subsequent to such corporate action as nearly
equivalent as possible to the adjustments provided for in this Section 8).
(f) Notice of Adjustment. Upon any adjustment of any
Exercise Price, then and in each such case the Company or the Warrant Agent
(at the expense of the Company), shall promptly deliver a notice to the
registered holder of the Warrants, which notice shall state the Market
Price, if any adjustment depends upon a determination of Market Price, and
the Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon
the exercise of each Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
(g) Other Notices. In case at any time:
(i) the Company shall declare any cash dividend
on its Common Stock;
(ii) the Company shall pay any dividend payable
in stock upon its Common Stock or make any distribution (other than
regular cash dividends) to the holders of its Common Stock;
(iii) the Company shall offer for subscription
pro rata to the holders of its Common Stock any additional shares
of stock of any class or other rights;
(iv) the Company shall authorize to all holders
of its Common Stock the distribution of evidence of its
indebtedness or assets (other than cash dividends or cash
distributions payable out of earnings or earned surplus or
dividends payable in Common Stock);
(v) there shall be any Organic Change;
(vi) there shall be a voluntary or involuntary
dissolution, liquidation, bankruptcy, assignment for the benefit of
creditors, or winding up of the Company; or
(vii) the Company proposes to take any other
action or an event occurs which would require an adjustment of the
Exercise Price pursuant to subsection (j) of this Section 8;
then, in any one or more of said cases, the Company or the Warrant Agent
(upon receiving written notice from the Company) shall give written notice,
addressed to the holder of each Warrant Certificate at the address of such
holder as shown on the books of the Company, of (1) the date on which the
books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights, or (2) the date (or, if not
then known, a reasonable approximation thereof by the Company) on which
such Organic Change or other action or event, as the case may be, shall
take place (or, in the case of clause (vi) above, the date on which the
relevant action or event took place). Such notice shall also specify (or,
if not then known, reasonably approximate) the date as of which the holders
of Common Stock of record shall participate in such dividends, distribution
or subscription rights, or shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such Organic Change,
dissolution, liquidation, bankruptcy, assignment for the benefit of
creditors, winding up, or other action or event, as the case may be. Such
written notice shall be given at least twenty days prior to the action in
question and not less than twenty days prior to the record date or the date
on which the Company's transfer books are closed in respect thereto;
provided, that no advance notice need be given of any event or action
specified in clause (vi) above, but the Company or the Warrant Agent shall
give notice of such event as promptly thereafter as practicable. The
Company shall be solely responsible for the payment of all costs and
expenses associated with the provision of any notices referenced herein.
(h) Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 8 but not expressly provided
for by such provisions (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights with equity
features), then the Company shall appoint a firm of independent certified
public accountants (which may be the regular auditors of the Company) of
recognized national standing, which shall give their opinion upon the
adjustment, if any, on a basis consistent with the basic intent and
principles established in the other provisions of this Section 8, necessary
to preserve, without dilution, the exercise rights of the registered
holders of the Warrant Certificates. Upon receipt of such opinion, the
Company shall forthwith make the adjustments described therein.
(i) Certain Exceptions to Antidilution Protection.
Notwithstanding anything to the contrary in this Section 8, there shall be
no adjustment to the Exercise Price or to the number of Warrant Shares
issuable upon exercise of the Warrants: (i) in connection with the sale or
issuance of the Warrant Certificates and Warrant Shares hereunder; (ii)
upon any issuance or exercise of the Other Warrants in accordance with the
terms thereof in effect on the Original Issuance Date and all warrants
issued upon the partial exercise, transfer or division of, or in
substitution for, any such warrants, or any adjustment to the number of
shares issuable under the Other Warrants pursuant to the terms thereof as
in effect on the Original Issuance Date; (iii) upon exercise of any
Convertible Security outstanding on the Original Issuance Date; (iv) upon
exercise of any options under the Management Option Plan; or (v) upon the
issuance of any other securities as contemplated by the Plan, including the
new Series A Senior Preferred Stock or the new Common Stock (each as
described therein).
(j) Other Securities. If at any time, as a result of
an adjustment made pursuant to this Section 8, any holder of Warrants shall
become entitled to purchase any securities of the Company other than shares
of Common Stock, the number or amount of such other securities so
purchasable and the consideration for such securities shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions contained in this Section 8 hereof.
Section 9. No Stock Rights. No holder of any Warrant
Certificate, as such, shall be entitled to vote or be deemed the holder of
Common Stock or any other securities of the Company which may at any time
be issuable on the exercise thereof, nor shall anything contained herein be
construed to confer upon the Holder of any Warrant Certificate, as such,
the rights of a stockholder of the Company or the right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or give or withhold consent to any corporate action or to
receive notice of meetings or other actions affecting stockholders (except
as provided herein), or to receive dividends (except as provided herein) or
subscription rights or otherwise, until the Date of Exercise of the
Warrants shall have occurred.
Section 10. Fractional Shares. The Company shall not be
required to issue fractions of Warrant Shares upon exercise of the Warrants
or to distribute certificates which evidence fractional Warrant Shares. As
to any fractional share of Common Stock which the Holder would otherwise be
entitled to subscribe for from the Company upon such exercise, the Company
shall purchase from the Holder such unissued fractional share at a price
equal to an amount calculated by multiplying such fractional share
(calculated to the nearest 1/100th of a share) by the then-Market Price
determined in accordance with the terms of this Agreement. Payment of such
amount shall be made in cash or by check payable to the order of the Holder
at the time of delivery of any certificate or certificates arising upon
such exercise.
Section 11. No Registration under Securities Act. Neither
the Warrants nor the Warrant Shares have been registered under the
Securities Act, but they have been issued pursuant to a valid exemption
from the Securities Act pursuant to Section 1145 of the Bankruptcy Code.
The Holder of each Warrant Certificate, by acceptance thereof, represents
that it is acquiring the Warrants to be issued to it for its own account
and not with a view to the distribution thereof, and agrees not to sell,
transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a
registration statement is effective for such Warrants or Warrant Shares
under the Securities Act or in the opinion of such holder's counsel (a copy
of which opinion shall be delivered to the Company) such transaction is
exempt from the registration requirements of the Securities Act; provided
that Warrants and Warrant Shares issued to such Holder may be transferred
to any Affiliate of such Holder, without any such registration (to the
extent permitted by law) or opinion, subject to the foregoing restriction
on any further sale, transfer, pledge or hypothecation by such Affiliate.
Section 12. Payment for Services. The Company agrees to pay
to the Warrant Agent reasonable compensation for all services rendered by
it hereunder and, from time to time, on demand of the Warrant Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder.
Section 13. Indemnification. Except as set forth in the
following paragraph, the Warrant Agent and its affiliates, members,
officers, directors, employees, agents, attorneys, successors and assigns
(each, an "Indemnified Party") shall be indemnified and held harmless by
the Company for and against any and all liabilities, losses, damages,
claims, costs and expenses, interest, awards, judgments and penalties
(including, without limitation, reasonable attorneys' and consultants' fees
and expenses) suffered or incurred by them, arising out of or resulting
from any of the services provided under this Agreement. The obligations of
the Company under this section shall survive any termination of this
Agreement and the resignation or removal of the Warrant Agent.
Section 14. Limitation of Liability. The Warrant Agent shall
be obligated only for the performance of such duties as are specifically
set forth herein. The Warrant Agent shall have no liability or obligation
under this Agreement except for the Warrant Agent's gross negligence or
willful misconduct. The Warrant Agent shall have no implied duties or
obligations and shall not be charged with knowledge or notice of any fact
or circumstance not specifically set forth herein. The Warrant Agent may
rely upon any instrument, whether bearing original, conformed or facsimile
signatures, not only as to its due execution, validity and effectiveness,
but also as to the truth and accuracy of any information contained therein
which the Warrant Agent shall in good faith believe to be genuine and to
have been signed or presented by the person or parties purporting to sign
the same. In no event shall the Warrant Agent be liable for incidental,
indirect, special, consequential or punitive damages.
Section 15. Certain Definitions. The following terms have
the meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common
control with such Person.
"Business Day" means any day, other than a Saturday, Sunday
or any other day on which banks are required or authorized to close in the
State of Illinois or the State of Indiana.
"Common Stock" is defined in the second paragraph hereof.
"Common Stock Deemed Outstanding" means, at any given time,
(x) the number of shares of Common Stock actually outstanding at such time,
plus (y) the number of shares of Common Stock issuable pursuant to any
outstanding Convertible Securities, or rights or options to purchase Common
Stock or Convertible Securities but only to the extent such Convertible
Securities, rights or options are In the Money at such time.
"Company" is defined in the first paragraph hereof.
"Convertible Securities" is defined in Section 8(c)(i).
"Date of Exercise" is defined in Section 4(c).
"Exercise Period" is defined in the second paragraph hereof.
"Exercise Price" is defined in the second paragraph hereof.
"Holder" is defined in the third paragraph hereof.
"In the Money" means, as to any Convertible Securities or
rights or options to purchase Common Stock or Convertible Securities at any
time, that such Convertible Securities, rights or options have a conversion
price, exercise price or similar price per share of Common Stock that is
less than the Market Price as of the date of determination.
"Management Option Plan" shall mean that certain management
option plan to be entered into on the Original Issuance Date.
"Market Price" shall mean the average of the daily closing
prices per share of the Common Stock for the ten consecutive trading days
immediately preceding the day as of which "Market Price" is being
determined (exclusive of "ex-dividend" and similar dates) provided,
however, that (i) Market Price shall be the closing price per share of the
Common Stock of the Company on the date of issuance with respect to the
issuance of options to purchase Common Stock of the Company issued to
directors, officers or employees of the Company and (ii) Market Price shall
be the closing price per share of the Common Stock of the Company on the
date the underwriting agreement is executed with respect to any bona fide
underwritten public offering of the Common Stock of the Company involving
net cash proceeds to the Company of at least $1,000,000. The closing price
for each day shall be the last sale price regular way or, in case no such
sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the principal national securities
exchange on which the shares are listed or admitted to trading, or if the
shares are not so listed or admitted to trading, on the National Market
System of NASDAQ or, if prices for the shares are not quoted on such
National Market System, the average of the highest reported bid and lowest
reported asked prices as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or through a similar organization
if NASDAQ is no longer reporting such information. If shares of the Common
Stock are not listed or admitted to trading on any exchange or quoted
through NASDAQ or any similar organization, the "Market Price" shall be
deemed to be the higher of (x) the book value of a share of the Common
Stock as determined by any firm of independent certified public accountants
of recognized national standing, selected by the board of directors of the
Company, as at the last day of any month ending within sixty days preceding
the date as of which the determination is to be made and (y) the fair value
thereof determined in good faith by a nationally recognized independent
investment banking firm selected by the Company and reasonably acceptable
to the holders of a majority of the Warrants as of a date which is within
30 days of the date as of which the determination is to be made (the fees
and expenses of such independent certified public accountants and
independent investment banking firm to be paid by the Company); provided,
however, that in the case of any determination of Market Price pursuant to
this sentence, the Market Price shall not be less than the amount of the
consideration per share received by the Company in respect of the most
recent sale, transfer or other issuance of Common Stock by the Company
(other than as a result of the exercise of any option or warrant or the
conversion of any Convertible Security) in an arms' length transaction to
an unaffiliated third party within the 90-day period immediately preceding
the date as to which the determination is to be made.
Anything herein to the contrary notwithstanding, if the
Company shall issue any shares of Common Stock or Convertible Securities or
rights or options to purchase Common Stock or Convertible Securities in
connection with the acquisition by the Company of the stock or assets of
any other corporation or the merger of any other corporation into the
Company, the Market Price shall be determined in the manner described in
this definition as of the date the number of shares of Common Stock,
Convertible Securities (or in the case of Convertible Securities other than
stock, the aggregate principal amount of Convertible Securities), rights or
options was determined (as set forth in a written agreement between the
Company and the other party to the transaction) rather than on the date of
issuance of such shares of Common Stock, Convertible Securities, rights or
options.
"Organic Change" is defined in Section 8(e).
"Original Issuance Date" means October 20, 2000.
"Other Warrants" shall mean (i) the 5 year Warrants to
purchase 678,334 shares at an exercise price of $0.01 per share, and (ii)
the 6 year Warrants to purchase 549,451 shares at an exercise price of
$2.14 per 0.04326865 share, in each case as contemplated by the Plan.
"Person" means an individual, a corporation, a partnership,
an association, a trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Plan" shall mean the Joint Prepackaged Plan of
Reorganization of Tokheim Corporation and its subsidiary debtors as filed
with and approved by the United States Bankruptcy Court for the District of
Delaware.
"Securities Act" means the Securities Act of 1933, as
amended.
"Warrant" is defined in the second paragraph hereof.
"Warrant Agent" is defined in the first paragraph hereof.
"Warrant Certificate" is defined in the third paragraph
hereof.
"Warrant Share" means the Common Stock issuable upon the
exercise of the Warrants.
Section 16. Miscellaneous.
(a) Governing Law. This Agreement shall be governed
in all respects by the internal laws of the State of Indiana.
(b) Entire Agreement. This Agreement, together with
the Warrant Certificates, constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter hereof.
(c) Amendment. 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 or to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Warrant
Certificates. No other changes may be made to this Agreement without the
consent of the Holder.
(d) Notices, etc. Each notice, demand, request,
request for approval, consent, approval, disapproval, designation or other
communication (each of the foregoing being referred to herein as a notice)
required or desired to be given or made under this Agreement shall be in
writing (except as otherwise provided in this Agreement), and shall be
effective and deemed to have been received when delivered in person, when
sent by fax with receipt acknowledged, five (5) days after having been
mailed by certified or registered United States mail, postage prepaid,
return receipt requested, or the next Business Day after having been sent
by a nationally recognized overnight mail or courier service, receipt
requested. Notices shall be addressed as follows: (x) if to any Holder, at
such address or fax number as such Holder shall have furnished the Company
in writing, or (y) if to the Company, at the address or fax number of its
principal executive offices set forth below its signature hereon or at such
other address or fax number as the Company shall have furnished to the
Holders. Any notice or other communication required to be given hereunder
to a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(e) Counterparts. This Agreement may be executed in
any number of counterparts, each of which may be executed by fewer than all
of the parties hereto, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together
shall constitute one instrument.
(f) Severability. In the event that any provision of
this Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Agreement shall continue in full
force and effect without said provision.
(g) Captions. Captions are for descriptive purposes
only and shall not control or alter the meaning of this Agreement as set
forth in the text.
(h) Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their respective successors and
assigns. Whether or not any express assignment has been made in this
Agreement, the provisions of this Agreement that are for the Holders of
Warrant Certificates are also for the benefit of, and shall be enforceable
by, all subsequent holders of Warrant Certificates. The acceptance of the
Warrant Certificate by the Holder shall be deemed an acceptance of the
terms and conditions of the Warrant Agreement.
(i) Remedies. The Company and the Holders acknowledge
that there would be no adequate remedy at law if any Person fails to
perform any of its obligations hereunder, and accordingly agree that the
Company and each Holder, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of another party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of
the United States or any State thereof having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
TOKHEIM CORPORATION
By:____________________________________
Name:
Title:
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
COMPUTERSHARE INVESTOR SERVICES, LLC
By:_______________________________________
Name:
Title:
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: __________________________
Facsimile: __________________________
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
WARRANT NO. _____
NUMBER OF WARRANT(S): _____
TOKHEIM CORPORATION
SERIES B WARRANT CERTIFICATE
Dated as of October [o], 2000
Series B Warrants to Purchase Common Stock
This certifies that ____________ or registered assigns (the
"Holder"), is the registered owner of the number of warrants set forth
above (the "Warrants"), each of which represents the right, at any time
after ________________ (the "Original Issuance Date") and on or before 5:00
p.m., Chicago, Illinois time, on ______________ (the "Exercise Period"), to
purchase from Tokheim Corporation, an Indiana corporation (the "Company"),
at the price per share of $_____ (the "Exercise Price") or by the cashless
exercise provisions of Section 4(d) of the Warrant Agreement (as defined
below), one share of Common Stock, no par value, of the Company as such
stock was constituted as of the Original Issuance Date, subject to
adjustment as provided in the Warrant Agreement hereinafter referred to,
upon surrender hereof, with the subscription form on the reverse hereof
duly executed, by hand or by mail to the Company, and simultaneous payment
in full (by certified or official bank or bank cashier's check payable to
the order of the Company, or by wire transfer of immediately available
funds to an account designated by the Company) of the Exercise Price in
respect of each Warrant represented by this Warrant Certificate that is so
exercised, all subject to the terms and conditions hereof and of the
Warrant Agreement.
Upon any partial exercise of the Warrants represented by
this Warrant Certificate, there shall be issued to the holder hereof a new
Warrant Certificate representing the Warrants that were not exercised.
No fractional shares may be issued upon the exercise of
rights to purchase hereunder, and as to any fraction of a share otherwise
issuable, the Company will make a cash payment in lieu of such issuance, as
provided in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement, dated as of October [o], 2000 (the "Warrant
Agreement"), between the Company and [o], as Warrant Agent, and is subject
to the terms and provisions contained therein. The Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and
is hereby referred to for a description of the rights, limitation of
rights, obligations, duties and immunities thereunder of the Company and
the registered holders of the Warrants. The Holder of this Warrant
Certificate consents to all terms and provisions of the Warrant Agreement
by acceptance hereof. Copies of the Warrant Agreement are on file at the
office of the Company and may be obtained by writing to the Company as
described below.
All notices, requests, demands and other communications
relating to this Warrant Certificate shall be in writing, including by
facsimile, addressed (a) if to the registered owner hereof, to it at the
address furnished by the registered owner to the Company, (b) if to the
Company, to it at 00000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
facsimile no.: (000) 000-0000, Attention: Chief Financial Officer, or (c)
if to the Warrant Agent, to it at [o], facsimile no.: [o], Attention: [o];
or to such other address as any party shall notify the other party in
writing, and shall be effective, in the case of written notice by mail,
three days after placement into the mails (first class, postage prepaid),
and in the case of notice by facsimile, on the same day as receipt is
confirmed.
This Warrant Certificate shall be binding upon and inure to
the sole and exclusive benefit of the Company, its successors and assigns,
the registered Holder or Holders from time to time of the Warrants and the
Warrant Shares.
This Warrant Certificate shall be construed in accordance
with and governed by the internal laws of the State of Indiana.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Dated: __________, 2000
TOKHEIM CORPORATION
By:
Name:
Title:
WARRANT AGENT
By:
Name:
Title:
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TOKHEIM CORPORATION
The transfer of this Warrant Certificate and all rights
hereunder is registrable by the registered holder hereof, in whole or in
part, on the register of the Company upon surrender of this Warrant
Certificate at the office or agency of the Company, duly endorsed or
accompanied by a written instrument of transfer duly executed and in form
satisfactory to the Company by the registered holder hereof or his attorney
duly authorized in writing and upon payment of any necessary transfer tax
or other governmental charge imposed upon such transfer or registration
thereof. Upon any partial transfer the Company will cause to be delivered
to such holder a new Warrant Certificate or Certificates with respect to
any portion not so transferred.
This Warrant Certificate may be exchanged at the office or
agency of the Company for Warrant Certificates representing the same
aggregate number of Warrants, each new Warrant Certificate to represent
such number of Warrants as the Holder hereof shall designate at the time of
such exchange.
Prior to the exercise of the Warrants represented hereby,
the Holder of this Warrant Certificate, as such, shall not be entitled to
any rights of a stockholder of the Company, including, but not limited to,
the right to vote, to receive dividends or other distributions, to exercise
any preemptive right or to receive any notice of meetings of stockholders,
and shall not be entitled to receive notice of any proceedings of the
Company except as provided in the Warrant Agreement. Nothing contained
herein shall be construed as imposing any liabilities upon the Holder of
this Warrant Certificate to purchase any securities or as a stockholder of
the Company, whether such liabilities are asserted by the Company or by
creditors or stockholders of the Company or otherwise.
This Warrant Certificate shall be void and all rights
represented hereby shall cease unless exercised before the close of
business on _________________.
Witness the facsimile seal of the Company and the signature
of its duly authorized officer.
FORM OF ELECTION TO PURCHASE
(To be executed by the holder of Warrants if such holder desires to
exercise Warrants evidenced by the foregoing Warrant Certificate)
To Tokheim Corporation:
The undersigned hereby irrevocably elects to exercise
____________ Warrants evidenced by the foregoing Warrant Certificate for,
and to [purchase thereunder, _______________ shares of Common Stock
issuable upon exercise of said Warrants and delivery of $___________ (in
cash as provided for in the foregoing Warrant Certificate) and any
applicable taxes payable by the undersigned pursuant to such Warrant
Certificate.][receive, in accordance with Section 4(d) of the Warrant
Agreement, ______ shares of Common Stock issuable upon exercise of said
Warrants and delivery of any applicable taxes payable by the undersigned
pursuant to such Warrant Agreement].
The undersigned requests that certificates for such shares
be issued in the name of _______________________________.
PLEASE INSERT SOCIAL
SECURITY OR TAX
IDENTIFICATION NUMBER
__________________________________
__________________________________
__________________________________
(Please print name and address)
If said number of Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests
that a new Warrant Certificate evidencing the Warrants not so exercised be
issued in the name of and delivered to
__________________________________
__________________________________
__________________________________
(Please print name and address)
Dated: ______________, _____ Name of holder of Warrant
(Print:) __________________________
(By:) __________________________
(Title:) __________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, _________________________________
hereby sells, assigns and transfers to each assignee set forth below all of
the rights of the undersigned in and to the number of Warrants (as defined
in and evidenced by the foregoing Warrant Certificate) set opposite the
name of such assignee below and in and to the foregoing Warrant Certificate
with respect to said Warrants and the shares of Common Stock issuable upon
exercise of said Warrants:
Name of Assignee Address Number of Warrants
If the total of said Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests
that a new Warrant Certificate evidencing the Warrants not so assigned be
issued in the name of and delivered to the undersigned.
Name of holder of Warrant
(Print:) ______________________________
