Exhibit 4.3
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of April 23, 1987, among GCA
Corporation, a Delaware corporation (the "Company"), The Hallwood Group
Incorporated, a Delaware corporation ("Hallwood"), and each of the banks
and insurance companies listed on Schedule I hereto (other than TIAA) and
Teachers Insurance and Annuity Association of America ("TIAA")
(collectively, the "Lender Group").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Hallwood and the Lender Group (other than TIAA) are
parties to that certain Restructuring Agreement, dated as of December 5,
1986 (the "Restructuring Agreement"), as amended; and
WHEREAS, Hallwood and TIAA are parties to that certain letter
agreement dated December 5, 1986 (the "TIAA Agreement"); and
WHEREAS, it is a condition, among others, to the obligations of
the Lender Group (other than TIAA) under the Restructuring Agreement that,
prior to the Closing under the Restructuring Agreement, the Company execute
and deliver this Agreement relating to the issuance and sale of warrants
(the "Warrants") to purchase shares of common stock, par value $.01 per
share (the "Common Stock"), of the Company; and
WHEREAS, it is a condition, among others, to the obligations of
TIAA under the TIAA Agreement that prior to the Closing under the TIAA
Agreement, the Company execute and deliver this Agreement relating to the
issuance and sale of the Warrants;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company, Hallwood and the
Lender Group agree as follows:
Section 1. Defined Terms. Capitalized terms used in this
Agreement, unless separately defined herein, shall have the meanings
ascribed to such terms in the Restructuring Agreement.
Section 2. Form of Warrant. The Warrants shall be substantially
in the form attached as Exhibit A hereto.
Section 3. Number of Warrant Shares. The aggregate number of
Common Shares issuable upon the exercise of Warrants ("Warrant Shares")
shall be 2,190,806 (after giving effect to the 1-for-50 reverse stock split
of the Common Stock contemplated to occur on April 24, 1987), allocated
among the Lender Group as set forth on Schedule I hereto. The Warrants will
be exercisable at any time or from time to time until April 23, 2002 at an
exercise price per share equal to 150% of the book value per share of the
Common Stock, determined in accordance with generally accepted accounting
principles, on the last day of the fiscal month of the Company in which the
Closing takes place. Promptly (and in any event within 15 days) following
the last fiscal day of such month, the Company shall give notice to each
holder of the Warrants of the exercise price thereof, and if requested, a
new Warrant certificate confirming such price. The number of Warrant Shares
and the exercise price thereof shall be subject to adjustment as provided
in the Warrants.
Section 4. Issuance and Delivery of Warrants. (a) At the Closing,
the Company shall execute, issue and deliver to each of the Banks and the
Insurance Companies and to TIAA a Warrant for the exercise of that number
of shares of Common Stock set forth opposite its name on Schedule I hereto.
(b) Hallwood hereby agrees that each of the Insurance
Companies (which term does not include TIAA) shall have the right,
exercisable upon not less than 30 days' prior written notice to Hallwood,
given at any time or times within one year following the date of the
Closing, to require Hallwood to purchase from such Insurance Company for
cash, on such date as shall be specified in such notice, such number of
Warrants as shall be listed opposite the name of such member of the Lender
Group on Schedule I hereto. The amount that Hallwood shall pay to any such
Insurance Company for each Warrant shall be (i) $750,000 multiplied by (ii)
a fraction, (A) the numerator of which shall be the outstanding principal
amount of Insurance Company Debt owed to such Insurance Company by the
Company at August 31, 1986 and (B) the denominator of which shall be the
aggregate outstanding principal amount of Insurance Company Debt at such
date, (iii) divided by the maximum number of Warrants that Hallwood is
obligated to repurchase pursuant to this Section 4(b). In connection with
each of its sales and purchases of any Warrants from an Insurance Company
pursuant hereto, Hallwood shall deliver upon the purchase of any Warrant to
such Insurance Company all such additional written assurances and other
documents as may be reasonably requested by such Insurance Company with
respect to such matters as the exemption of such purchase transaction from
the registration, prospectus delivery and qualification requirements of
Federal and applicable state securities laws, including, without
limitation, an opinion of Hallwood's counsel reasonably satisfactory to the
seller of the Warrants to such effect together with a written
representation and warranty by Hallwood that it is acquiring all such
Warrants which it receives pursuant to this section 4(b) for investment
purposes only and not with a view to the resale or distribution thereof.
Hallwood hereby acknowledges the absolute and unconditional nature of its
obligation to purchase Warrants pursuant to this paragraph notwithstanding
the existence of any and all defenses, set-offs, counterclaims or any other
basis for non-fulfillment of such obligation, it being the intent of the
parties hereto that Hallwood be and remain bound to the Insurance Companies
to purchase the Warrants as provided in this Section, notwithstanding any
agreement between it and any other party.
Section 5. Reservation of Warrant Shares, Etc. The Company
covenants and agrees that, at all times following the issuance of the
Warrants to the Lender Group, it shall cause to be reserved out of its
holdings of authorized and unissued Common Stock such number of shares of
Common Stock as shall be issuable upon the exercise of the Warrants then
outstanding in accordance with the terms of such Warrants and this Warrant
Agreement.
Section 6. Replacement Warrants. In case any Warrant shall be at
any time mutilated, lost or destroyed, then, upon the production of such
mutilated Warrant (or the receipt of an affidavit of an officer of the
Holder as to the circumstances surrounding the loss or destruction of such
Warrant) and, in the case of the loss of a Warrant, the receipt of an
unsecured written agreement to indemnify the Company in the event of a loss
suffered by it as a result of the loss of a Warrant, the Company shall
execute and deliver a new Warrant of like tenor for that number of shares
of Common Stock for which such lost or mutilated Warrant could have been
exercised. Any stamp tax or other governmental charge payable upon the
issuance of any replacement Warrant shall be borne by the holder thereof.
Any replacement Warrants executed and delivered pursuant to this Section 6
shall be entitled to equal and proportionate benefits of this Warrant
Agreement with all other Warrants issued hereunder, whether or not the
allegedly lost or destroyed Warrant shall be enforceable by any person,
firm, corporation or other entity.
Section 7. Certain Expenses. The Company shall pay when due any
and all federal, state and local issue or transfer taxes which may be
payable in respect to the initial issuance by the Company of the Warrants,
and all federal, state or local issue or transfers taxes that may be
payable with respect to the initial issuance of the Warrant Shares. The
Company shall not be required to pay any tax that may be payable in respect
of any transfer of Warrants or Warrant Shares or in respect of the issuance
of Warrant Shares to any person other than the registered holder of such
Warrant at the time of such exercise.
Section 8. Representation and Agreement of the Lender Group;
Transfers. (a) Each of the Banks and the Insurance Companies and TIAA
hereby represents and warrants to the Company and Hallwood that it is
acquiring its Warrants for investment purposes only and not with a view to
the resale or distribution thereof.
(b) Each member of the Lender Group and each holder of a
Warrant, by the acceptance thereof, agrees that prior to the exercise of
any Warrant, unless the Warrant Shares have been registered under the
Securities Act of 1933, as amended (the "Act"), or any similar Federal
statute for sale or other disposition by such holder and a prospectus with
respect thereto is current, or unless such holder shall have delivered to
the Company an opinion of counsel reasonably satisfactory to the Company to
the effect that no such registration is required, it will deliver to the
Company a written representation that it is acquiring the Warrant Shares
for its own account for investment purposes only and not with a view to the
resale or distribution thereof, subject to any requirement of law that its
disposition of such property be at all times within its control.
(c) Each member of the Lender Group and each holder of a
Warrant, by acceptance thereof, covenants and agrees that it will not sell,
transfer or dispose (hereinafter, a "Disposition") of any Warrant (or any
interest in any Warrant) or any Common Stock issuable or issued upon the
exercise of any Warrant (or any interest in any such Common Stock), except
in compliance with the provisions of the Act and the rules and regulations
promulgated thereunder, or any similar Federal statute and rules and
regulations promulgated thereunder. With respect to any Disposition of a
Warrant or any Common Stock issued pursuant to the exercise of a Warrant or
any interest therein, unless a registration statement under the Act is
effective and the prospectus included therein is current, the holder of
such Warrant or Common Stock shall, as a condition of such Disposition,
provide the Company with (i) an appropriate opinion of counsel that the
proposed Disposition may be made without registration in form and substance
satisfactory to the Company, or (ii) a letter from the staff of the
Securities and Exchange Commission (the "Commission") or any similar
Federal regulatory body, to the effect that the staff will not recommend
that the Commission take any action if the proposed Disposition is made
without registration under the Act, or (iii) evidence satisfactory to the
Company (which, in appropriate circumstances, may include an opinion of
counsel) that such Disposition is in compliance with the provisions of Rule
144 (or any similar rule then in effect) promulgated under the Act.
(d) Each Warrant and each certificate for shares of Common
Stock that is the subject of such Warrant shall, bear an appropriate legend
to reflect that the issuance thereof has not been registered under the Act
and each member of the Lender Group and each holder of Warrant, by
acceptance thereof, acknowledges the same.
(e) The Company shall be required to issue promptly a new
Warrant or Common Stock issued upon exercise of a Warrant (such Common
Stock or Warrant not to bear a restrictive legend if the Company reasonably
determines that such legend is not required in order to comply with
applicable federal and state securities laws) if (i) a Disposition of a
Warrant or the Common Stock issued upon exercise of a Warrant is made
pursuant to a registration statement (including a current prospectus) that
is effective under the Act (such Warrant or Common Stock, as the case may
be, to be without a restrictive legend), (ii) the staff of the Commission
shall have issued a letter to the effect that it will not recommend that
the Commission take any action if the proposed Disposition is made without
registration under the Act, or (iii) counsel to the holder thereof shall
have rendered its opinion, which opinion shall be reasonably acceptable to
the Company, that the Disposition of such securities may be made without
registration under the Act, or (iv) the Company shall have been furnished
with evidence satisfactory to the Company (which, in appropriate
circumstances, may include an opinion of counsel) that the Disposition of
such securities is in compliance with Rule 144 (or any similar rule then in
effect) promulgated under the Act.
Section 9. Representations and Warranties of the Company. The
Company represents and warrants to the Lender Group as follows:
(a) Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full corporate power and authority
to own its properties and carry on its business as it is now being
conducted. The Company is duly qualified as a foreign corporation and is in
good standing under the laws of each jurisdiction in which the conduct of
its business or the ownership of its assets requires such qualification,
except where its failure to be so qualified would not have a material
adverse effect on the business, properties, assets or financial condition
of the Company and its subsidiary, taken as a whole.
(b) Due Authorization; No Conflicts; Governmental Consents.
This Agreement has been duly authorized, executed and delivered by the
Company and this Agreement constitutes, and, upon execution, issuance and
delivery thereof each of the Warrants will constitute, a valid and binding
agreement of the Company, enforceable in accordance with its terms. Neither
the performance of this Agreement and the consummation of the transactions
contemplated hereby, nor the issuance of any of the Warrant Shares upon
exercise of the Warrants, will result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company is a party
or by which the Company or any of its properties is bound, or under the
Articles of Incorporation or By-Laws of the Company or under any statute,
rule, regulation or order of any governmental body or court applicable to
the Company, and no consent, approval, authorization or order of any court
or governmental body is required for the consummation by the Company of the
transactions on its part herein contemplated.
(c) Capitalization. The authorized capital stock of the
Company consists of (a) 750,000,000 shares of common stock, par value $.01
per share (hereinafter referred to as the "Common Stock"), 9,464,295 shares
of which are validly issued and outstanding as of the date hereof (after
giving effect to the 1-for-50 reverse stock split contemplated to occur on
April 24, 1987), and (b) 1,000,000 shares of preferred stock, par value
$1.00 per share, no shares of which are issued or outstanding. All of the
issued and outstanding shares of Common Stock are fully paid,
non-assessable and free of preemptive rights and no personal liability
attaches to the ownership thereof. Except (i) as disclosed in the Company's
prospectus dated February 11, 1987, and (ii) for the transactions
contemplated by the Restructuring Agreement and the TIAA Agreement, there
is no existing option, warrant, call, commitment or other agreement to
which the Company is a party requiring, and there are no convertible
securities of the Company outstanding which upon conversion would require,
the issuance of any additional shares of Common Stock of the Company or
other securities convertible into shares of Common Stock or any other
equity security of the Company. The Warrants and the Warrant Shares have
been duly and validly authorized and reserved for issuance and, upon
issuance and payment for the Warrant Shares as provided in the Warrants,
the Warrant Shares will be duly and validly issued, fully-paid,
nonassessable and free of preemptive rights and no personal liability will
attach to the ownership thereof.
Section 10. Registration Rights. On the terms and subject to the
conditions of the Registration Agreement attached as Exhibit B hereto, the
Company agrees to provide the registration rights provided therein with
respect to the Warrant Shares. At the Closing, the Company and the Lender
Group shall execute and deliver the Registration Agreement.
Section 11. Governing Law. This agreement shall be governed by
the laws of the State of New York.
Section 12. Notices. All notices provided for herein shall be
given or made by certified mail or hand delivery, mailed or delivered to
the intended recipient at the "Address for Notices" specified below its
name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when deposited in
the mails or personally delivered.
Section 13. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and each of said counterparts shall
for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument. This Agreement
shall become effective upon the Closing.
Section 14. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company, Hallwood and the
Lender Group and their respective successors and assigns.
Section 15. Amendment; Waiver. This Agreement may be amended or
modified, and any provision of this Agreement may be waived, by a writing
executed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
GCA CORPORATION
By
----------------------------------------
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
THE HALLWOOD GROUP INCORPORATED
By
----------------------------------------
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BANK OF NEW ENGLAND, N.A.
By
----------------------------------------
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Assistant Vice President
BARCLAYS BANK PLC (formerly known as
"Barclays Bank International Limited")
By
----------------------------------------
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Advance Department
MANUFACTURERS HANOVER TRUST COMPANY
By
----------------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Vice President
MANUFACTURERS HANOVER LEASING CORPORATION
By
----------------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Vice President
MELLON FINANCIAL SERVICES CORPORATION
LEASING GROUP (formerly known as
"Mellon National Leasing Corporation")
By
----------------------------------------
3030 One Mellon Bank Center
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
----------------------------------------
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Securities Division
GENERAL AMERICAN LIFE INSURANCE COMPANY
By
----------------------------------------
X.X. Xxx 000
Xx. Xxxxx, Xxxxxxxx 00000
HOME LIFE INSURANCE COMPANY
By
----------------------------------------
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Securities Department
THE PENN MUTUAL LIFE INSURANCE COMPANY
By
----------------------------------------
000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Securities Department
THE UNION CENTRAL LIFE INSURANCE COMPANY
By
----------------------------------------
X.X. Xxx 000
Xxxxxxxxxx, Xxxx 00000
THE UNION LABOR LIFE INSURANCE COMPANY
By
----------------------------------------
000 Xxxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx Xxxxx
PAN AMERICAN LIFE INSURANCE COMPANY
By
----------------------------------------
000 Xxxxxxx Xxxxxx
Pan American Life Center
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: 28th Floor Investments
BERKSHIRE LIFE INSURANCE COMPANY
By
----------------------------------------
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Securities Department
