EXHIBIT 10.13
CFSL Holdings Corp.
WARRANT AGREEMENT
This WARRANT AGREEMENT is dated as of May 17, 2002 (this
"Agreement") and entered into by and among CFSL Holdings Corp., a Delaware
corporation ("Parent"), and the Purchasers party hereto. All capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Purchase Agreement (as hereinafter defined).
WHEREAS, pursuant to that certain Amended and Restated Securities
Purchase Agreement dated as of May 17, 2002 (the "Purchase Agreement"), by and
among Parent, CAC, the Company, the Guarantors, the Collateral Agent and the
Purchasers, Parent proposes to issue to the Purchasers certain warrants (the
"Common Warrants"), to purchase an aggregate of 1,000,000 shares (subject to
adjustment) of Class A Common Stock, par value $.001 per share (the "Class A
Common Stock"), of Parent and certain contingent warrants (the "Contingent
Warrants" and together with its Common Warrants, the "Warrants"), to purchase up
to an aggregate of 100,575 shares of Class A Common Stock (the shares of Class A
Common Stock and other securities (including other shares of Parent's common
stock (together with the Class A Common Stock, the "Common Stock") issuable upon
exercise of the Warrants being referred to herein as the "Warrant Shares")).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Warrant Certificates. Simultaneously with the execution
and delivery hereof, Parent will issue and deliver a certificate or certificates
evidencing the Common Warrants and the Contingent Warrants (the "Warrant
Certificates") pursuant to the terms of the Purchase Agreement. Such certificate
or certificates evidencing the Common Warrants shall be substantially in the
form set forth as Exhibit A attached hereto and such certificates evidencing the
Contingent Warrants shall be substantially in the form set forth as Exhibit B
attached hereto. Warrant Certificates shall be dated the date of issuance by
Parent.
SECTION 2. Execution of Warrant Certificates. Warrant Certificates
shall be manually signed on behalf of Parent by its Chairman of the Board or its
Chief Executive Officer, President or a Vice President. Each Warrant Certificate
shall also be manually signed on behalf of the Company by its Secretary or an
Assistant Secretary.
SECTION 3. Registration. Parent shall number and register the
Warrant Certificates and the Warrant Shares (which shall be included in the same
register as Parent's other outstanding shares of Class A Common Stock) in
registers (the "Warrant Register" and the "Common Shares Register",
respectively) as they are issued. Parent may deem and treat the registered
holder(s) from time to time of the Warrant Certificates (the "Holders") as the
absolute owner(s) thereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes and shall not be affected by
any notice to the contrary. The Warrants shall be registered initially in such
name or names as the Purchasers shall designate.
SECTION 4. Restrictions on Transfer; Registration of Transfers and
Exchanges. Transfers of Warrants and Warrant Shares are subject to the
restrictions set forth in the Stockholders Agreement. Prior to any proposed
transfer of the Warrants or the Warrant Shares, unless such transfer is made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Act"), the transferring Holder, upon request by Parent,
will deliver to Parent an opinion of counsel (who may be in-house counsel),
reasonably satisfactory in form and substance to Parent, to the effect that the
Warrants or Warrant Shares, as applicable, may be sold or otherwise transferred
without registration under the Act; provided, however, that with respect to
transfers by Holders to their Affiliates, no such opinion shall be required. A
transfer made by a Holder which is a state-sponsored employee benefit plan to a
successor trust or fiduciary pursuant to a statutory reconstitution shall be
expressly permitted and no opinions of counsel shall be required in connection
therewith. Upon original issuance thereof, and until such time as the same shall
have been registered under the Act or sold pursuant to Rule 144 promulgated
thereunder (or any similar rule or regulation), each Warrant Certificate shall
bear the legend included on the first page of Exhibit A or Exhibit B, as the
case may be, unless in the opinion of such counsel, such legend required
pursuant to the Purchase Agreement is no longer required by the Act or any
legend required by the Stockholders Agreement is no longer required thereunder.
Parent shall from time to time register the transfer of any
outstanding Warrant Certificates in the Warrant Register to be maintained by
Parent upon surrender thereof accompanied by a written instrument or instruments
of transfer in form reasonably satisfactory to Parent, duly executed by the
registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant
Certificate shall be issued to the transferee Holder(s) and the surrendered
Warrant Certificate shall be canceled and disposed of by Parent.
SECTION 5. Warrants; Exercise of Contingent Warrants; Exercise of
Common Warrants. Subject to the terms of this Agreement, none of the Contingent
Warrants may be exercised unless and until, a holder of a Parent Convertible
Note elects to convert its Parent Convertible Note, in whole or in part, and
receives shares of Common Stock as a result of such election pursuant to the
terms of the Parent Convertible Note (the "Exercise Condition"). Upon the
occurrence of the Exercise Condition and each subsequent conversion of Parent
Convertible Notes, the Contingent Warrants shall, in the aggregate, become
exercisable for a number of shares of Class A Common Stock equal to:
(a) if the Exercise Condition, or such subsequent conversion, occurs
within 365 days of the Closing Date:
C = 86,227 x R x (1 + (S x .08))
----------
365
where:
R = a fraction, the numerator of which is the principal amount of
the Parent Convertible Notes that were converted by such
holder and the denominator of which is 1,008,854
S = the number of days since the Closing Date
C = the number of shares of Class A Common Stock to be issued upon
exercise of the Contingent Warrants
(b) if the Exercise Condition, or such subsequent conversion, occurs
more than 365 days after the Closing Date:
C = 86,227 x R x 1.08 x (1 + (T x .08))
-------
365
where:
R = a fraction, the numerator of which is the principal amount of
the Parent Convertible Notes that were converted by such
holder and the denominator of which is 1,008,854
T = the number of days since the Closing Date less 365
C = the number of shares of Class A Common Stock to be issued upon
exercise of the Contingent Warrants
If, after the occurrence of the Exercise Condition, a holder of a
Parent Convertible Note elects to convert its Parent Convertible Note in part
and receives shares of Common Stock as a result of such election pursuant to the
terms of the Parent Convertible Note, then the aggregate number of shares of
Class A Common Stock to be issued upon exercise of the Contingent Warrants shall
be further increased by a number equal to C as calculated in clause (a) or (b)
above, as applicable. Each holder of Contingent Warrants shall have the number
of shares of Class A Common Stock to be issued upon exercise of its Contingent
Warrants increased pro rata in accordance with its then-current holdings of such
Contingent Warrants. Promptly following each conversion of all or any portion of
a Parent Convertible Note, Parent shall send a notice to each Holder informing
it as to the portion of the Contingent Warrants that have become exercisable and
the method Parent used to make that determination.
Subject to the terms of this Agreement, (a) each holder of Common
Warrants shall have the right, which may be exercised immediately and until 5:00
p.m., New York time, on May 17, 2012 and (b) each holder of Contingent Warrants
shall have the right, which may be exercised upon occurrence of the Exercise
Condition and until the earlier to occur of (1) 5:00 p.m., New York time, on May
17, 2012 and (2) 5:00 p.m., New York time on the date the Company pays in full
the outstanding principal amount of the Parent Convertible Notes (the
"Expiration Date"), to receive from Parent the number of fully paid and
nonassessable Warrant Shares (and such other consideration) which the Holder may
at the time be entitled to receive on exercise of such Warrants and payment of
the Exercise Price then in effect for such Warrant Shares. Each Warrant not
exercised prior to 5:00 p.m., New York time, on the Expiration Date shall become
void and all rights thereunder and all rights in respect thereof under this
Agreement shall cease as of such time. No adjustments as to dividends will be
made upon exercise of the Warrants, except as otherwise expressly provided
herein.
The price at which each Warrant shall be exercisable (the "Exercise
Price") shall initially be $.01 per share, subject to adjustment pursuant to the
terms hereof.
A Warrant may be exercised upon surrender to Parent at its office
designated for such purpose (as provided for in Section 12 hereof) of the
Warrant Certificate or Certificates to be exercised with the form of election to
purchase attached thereto duly filled in and signed, and upon payment to Parent
of the Exercise Price for the number of Warrant Shares in respect of which such
Warrants are then exercised. Payment of the aggregate Exercise Price shall be
made in cash or by certified or official bank check payable to the order of
Parent or by wire transfer to an account designated by Parent.
Subject to the provisions of Section 6 hereof, upon such surrender
of Warrant Certificates and payment of the Exercise Price, Parent shall issue
and cause to be delivered, as promptly as practicable, to or upon the written
order of the Holder and in such name or names as such Holder may designate a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants (and such other consideration as may be
deliverable upon exercise of such Warrants) together with cash for fractional
Warrant Shares as provided in Section 10. The certificate or certificates for
such Warrant Shares shall be deemed to have been issued and the person so named
therein shall be deemed to have become a holder of record of such Warrant Shares
as of the date of the surrender of such Warrants and payment of the Exercise
Price, irrespective of the date of delivery of such certificate or certificates
for Warrant Shares.
Each Warrant which is otherwise exercisable pursuant to this
Agreement shall be exercisable, at the election of the Holder thereof, either in
full or from time to time in part and, in the event that a Warrant Certificate
is exercised in respect of fewer than all of the Warrant Shares issuable on such
exercise at any time prior to the Expiration Date, a new certificate evidencing
the remaining Warrant or Warrants will be issued and delivered pursuant to the
provisions of this Section and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants shall
be cancelled and disposed of by Parent. Parent shall keep copies of this
Agreement and any notices given or received hereunder available for inspection
by the Holders during normal business hours at its office.
In addition to and without limiting the rights of the Holder under
the terms of this Agreement, at the Holder's option a Warrant may be exercised
by being exchanged in whole or in part at any time or from time to time prior to
the Expiration Date for a number of Warrant Shares having an aggregate Specified
Value (as defined in Section 9(g) hereof) on the date of such exercise equal to
the difference
between (x) the Specified Value of the number of Warrant Shares in respect of
which such Warrants are then exercised and (y) the aggregate Exercise Price for
such shares in effect at such time. The following diagram illustrates how many
Warrant Shares would then be issued upon exercise pursuant to this section:
Let SV = Specified Value per Warrant Share at date of exercise.
PSP = Per share Exercise Price at date of exercise.
N = Number of Warrant Shares desired to be exercised.
X = Number of Warrant Shares issued after exercise.
X = (SV)(N) - (PSP)(N)
------------------
SV
Upon any such exercise, the number of Warrant Shares purchasable
upon exercise of a Warrant shall be reduced by such designated number of Warrant
Shares and, if a balance of purchasable Warrant Shares remain after such
exercise, Parent shall execute and deliver to the Holder a new Warrant for such
balance of Warrant Shares.
No payment of any cash or other consideration to Parent shall be
required from the Holder in connection with any exercise of a Warrant by
exchange pursuant to this section or otherwise. Such exchange shall be effective
upon the date of receipt by Parent of the original Warrant surrendered for
cancellation and a written request from the Holder that the exchange pursuant to
this section be made, or at such later date as may be specified in such request.
No fractional shares arising out of the above formula for determining the number
of Warrant Shares issuable in such exchange shall be issued, and Parent shall in
lieu thereof make payment to the Holder of cash in the amount of such fraction
multiplied by the Specified Value of a Warrant Share on the date of the
exchange.
SECTION 6. Payment of Taxes. Parent will pay all documentary stamp
taxes and other governmental charges (excluding all foreign, Federal or state
income, franchise, property, estate, inheritance, gift or similar taxes) in
connection with the issuance or delivery of the Warrants hereunder, as well as
all such taxes attributable to the initial issuance or delivery of Warrant
Shares upon the exercise of Warrants and payment of the Exercise Price. Parent
shall not, however, be required to pay any tax that may be payable in respect of
any subsequent transfer of the Warrants or any transfer involved in the issuance
and delivery of Warrant Shares in a name other than that in which the Warrants
to which such issuance relates were registered, and, if any such tax would
otherwise be payable by Parent, no such
issuance or delivery shall be made unless and until the person requesting such
issuance has paid to Parent the amount of any such tax, or it is established to
the reasonable satisfaction of Parent that any such tax has been paid.
SECTION 7. Mutilated or Missing Warrant Certificates. If a mutilated
Warrant Certificate is surrendered to Parent, or if the Holder of a Warrant
Certificate claims and submits an affidavit or other evidence satisfactory to
Parent to the effect that the Warrant Certificate has been lost, destroyed or
wrongfully taken, Parent shall issue a replacement Warrant Certificate. If
required by Parent such Holder must provide an indemnity bond, or other form of
indemnity, sufficient in the judgment of Parent to protect Parent from any loss
which it may suffer if a Warrant Certificate is replaced. If any Purchaser or
any other institutional Holder (or nominee thereof) is the owner of any such
lost, stolen or destroyed Warrant Certificate, then the affidavit of an
authorized officer of such owner, setting forth the fact of loss, theft or
destruction and of its ownership of the Warrant Certificate at the time of such
loss, theft or destruction shall be accepted as satisfactory evidence thereof
and no further indemnity shall be required as a condition to the execution and
delivery of a new Warrant Certificate other than the unsecured written agreement
of such owner to indemnify Parent or, at the option of such Purchaser or other
institutional Holder, an indemnity bond in the amount of the Specified Value of
the Warrant Shares for which such Warrant Certificate was exercisable.
SECTION 8. Reservation of Warrant Shares. Parent shall at all times
reserve and keep available, free from preemptive rights (except as otherwise
provided herein or in the Stockholders Agreement), out of the aggregate of its
authorized but unissued Common Stock (and other stock into which Warrants are
exercisable) or its authorized and issued Common Stock (and such other stock)
held in its treasury, for the purpose of enabling it to satisfy any obligation
to issue Warrant Shares upon exercise of Warrants, the maximum number of shares
of Common Stock (and other stock) which may then be deliverable upon the
exercise of all outstanding Warrants.
Parent or, if appointed, the transfer agent for the Common Stock and
each transfer agent for any shares of Parent's capital stock issuable upon the
exercise of any of the Warrants (collectively, the "Transfer Agent") will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. Parent shall keep a
copy of this Agreement on file with any such Transfer Agent. Parent will supply
any such Transfer Agent with duly executed certificates for such purposes and
will provide or otherwise make available all other consideration that may be
deliverable upon exercise of the
Warrants. Parent will furnish any such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each Holder
pursuant to Section 11 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 9 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, Parent shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that Parent may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise Price
as so adjusted.
Parent covenants that all Warrant Shares and other capital stock
issued upon exercise of Warrants will, upon payment of the Exercise Price
therefor and issue thereof, be validly authorized and issued, fully paid,
nonassessable, free of preemptive rights (except as may be granted by this
Agreement and the Stockholders Agreement) and free, subject to Section 6 hereof,
from all taxes, liens, charges and security interests with respect to the issue
thereof.
SECTION 9. Adjustment of Exercise Price and Warrant Number. The
number of Warrant Shares issuable upon the exercise of each Warrant (the
"Warrant Number") is initially one. The Warrant Number is subject to adjustment
from time to time upon the occurrence of the events enumerated in, or as
otherwise provided in, this Section 9.
(a) Adjustment for Change in Capital Stock
If Parent:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(2) subdivides or reclassifies its outstanding shares
of Common Stock into a greater number of shares;
(3) combines or reclassifies its outstanding shares of
Common Stock into a smaller number of shares;
(4) makes a distribution on Common Stock in shares of
its capital stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any
shares of its capital stock (other than reclassifications arising solely
as a result of a change in the par value or no par value of the Common
Stock);
then the Warrant Number in effect immediately prior to such action shall be
proportionately adjusted so that the holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of Parent
which it would have owned immediately following such action if such Warrant had
been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed
above shall occur; provided, that if the occurrence of any event listed above
results in an adjustment under subsection 9(b) or (c) below, no adjustment shall
be made under this subsection (a).
Parent shall not issue shares of Common Stock as a dividend or
distribution on any class of capital stock other than Common Stock unless (i)
such dividend or distribution is not prohibited by the Purchase Agreement and
(ii) the Warrant Holders also receive such dividend or distribution on a ratable
basis or the appropriate adjustment to the Warrant Number is made under this
Section 9.
(b) Adjustment for Rights Issue
If Parent distributes (and receives no consideration therefor) any
rights, options or warrants (whether or not immediately exercisable) to all
holders of any class of its Common Stock entitling them to purchase shares of
Common Stock at a price per share less than the Specified Value per share on the
record date relating to such distribution, the Warrant Number shall be adjusted
in accordance with the formula:
W' = W x O + N
-------------
O + N x P
------
M
where:
W' = the adjusted Warrant Number.
W = the Warrant Number immediately prior to the record date
for any such distribution.
O = the number of shares of Common Stock outstanding on the
record date for any such distribution.
N = the number of additional shares of Common Stock issuable
upon exercise of such rights, options or warrants.
P = the exercise price per share of such rights, options or
warrants.
M = the Specified Value per share of Common Stock on the
record date for any such distribution.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the adjusted Warrant Number shall be immediately
readjusted to what it would have been if "N" in the above formula had been the
number of shares actually issued.
(c) Adjustment for Other Distributions
If Parent distributes to all holders of any class of its Common
Stock (i) any evidences of indebtedness of Parent or any of its subsidiaries,
(ii) any assets of Parent or any of its subsidiaries (other than cash after an
IPO), or (iii) any rights, options or warrants to acquire any of the foregoing
or to acquire any other securities of Parent, the Warrant Number shall be
adjusted in accordance with the formula:
W' = W x M
---
M - F
where:
W' = the adjusted Warrant Number.
W = the Warrant Number immediately prior to the record date
mentioned below.
M = the Specified Value per share of Common Stock on the
recor date mentioned below.
F = the Fair Market Value on the record date mentioned
below of the shares, the indebtedness, assets, rights,
options or warrants distributable to the holder of one
share of Common Stock.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If an adjustment is made pursuant to this subsection (c) as a result of the
issuance of rights, options or warrants and at the end of the period during
which any such rights, options or warrants are exercisable, not all such rights,
options or warrants shall have been exercised, the adjusted Warrant Number shall
be immediately readjusted as if "F" in the above formula was the Fair Market
Value on the record date of the indebtedness or assets actually distributed upon
exercise of such rights, options or warrants divided by the number of shares of
Common Stock outstanding on the record date.
This subsection does not apply to rights, options or warrants
referred to in subsection (b) or to any issuance of shares of Common Stock
referred to in subsection (d) of this Section 9.
(d) Adjustment for Common Stock Issue
If Parent issues shares of Common Stock for a consideration per
share less than the Specified Value per share on the date Parent fixes the
offering price of such additional shares, the Warrant Number shall be adjusted
in accordance with the formula:
W' = W x A
-----------
O + P
--
M
where:
W' = the adjusted Warrant Number.
W = the Warrant Number immediately prior to any such
issuance.
O = the number of shares of Common Stock outstanding
immediately prior to the issuance of such additional
shares of Common Stock.
P = the aggregate consideration received for the issuance of
such additional shares of Common Stock.
M = the Specified Value per share of Common Stock on
the date of issuance of such additional shares.
A = the number of shares of Common Stock outstanding
immediately after the issuance of such additional shares
of Common Stock.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant
to this subsection (d) in the event of issuances of: (1) up to an aggregate of
700,000 shares (appropriately adjusted for any future stock splits,
subdivisions, stock dividends, combinations, recapitalizations or any similar
transactions) of Common Stock issued or deemed issued to employees, consultants
or directors of Parent, pursuant to a stock option plan or restricted stock
purchase plan approved by a majority of holders of Common Stock and Parent's
Board of Directors or otherwise (excluding shares subject to options that expire
unexercised and shares repurchased at cost by Parent in connection with the
termination of employment or other provision of services to Parent); (2) shares
of Common Stock issued pursuant to the conversion or exercise of convertible or
exercisable securities outstanding as of the date hereof; (3) up to an aggregate
of 776,041 shares (appropriately adjusted for any future stock splits,
subdivisions, stock dividends, combinations, recapitalizations or any similar
transactions) of Common Stock issued to Lightyear; provided that (A) such shares
of Common Stock are issued at a price of at least $1.30 per share and (B) such
shares of Common Stock are issued on or before December 31, 2002; and (4) the
issuance of shares of Common Stock upon conversion of the Parent Convertible
Notes.
This subsection (d) does not apply to any of the transactions
described in subsections (a) or (b) of this Section 9.
(e) Adjustment for Convertible Securities Issue
If Parent issues any options, warrants or other securities
convertible into or exchangeable or exercisable for Common Stock (other than
securities issued in transactions described in subsection (b) or (c) of this
Section 9) for a consideration per share of Common Stock initially deliverable
upon conversion, exchange or exercise of such securities less than the Specified
Value per share on the date of issuance of such securities, the Warrant Number
shall be adjusted in accordance with this formula:
W' = W x O + D
-------
O + P
---
M
where:
W' = the adjusted Warrant Number.
W = the Warrant Number immediately prior to any such
issuance.
O = the number of shares of Common Stock outstanding
immediately prior to the issuance of such securities.
P = the sum of the aggregate consideration received for the
issuance of such securities and the aggregate minimum
consideration receivable by Parent for issuance of
Common Stock upon conversion or in exchange for, or upon
exercise of, such securities.
M = the Specified Value per share of Common Stock on the
date of issuance of such securities.
D = the maximum number of shares of Common Stock deliverable
upon conversion or in exchange for or upon exercise of
such securities at the initial conversion, exchange or
exercise rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion, exchange or
exercise of such securities has not been issued when the conversion, exchange or
exercise rights of such securities have expired or been terminated, then the
adjusted Warrant Number shall promptly be readjusted to the adjusted Warrant
Number which would then be in effect had the adjustment upon the issuance of
such securities been made on the basis of the actual number of shares of Common
Stock issued upon conversion, exchange or exercise of such securities. If the
aggregate minimum consideration receivable by Parent for issuance of Common
Stock upon conversion or in exchange for, or upon exercise of, such securities
shall be increased or decreased or if the number of shares of Common Stock
issuable upon conversion, exchange or exercise of such securities shall change,
in each case by virtue of provisions therein contained or upon the arrival of a
specified date or the happening of a specified event, then the Warrant Number
shall promptly be readjusted to the Warrant Number which would then be in effect
had the adjustment upon the issuance of such securities been made on the basis
of such increase, decrease or change.
This subsection (e) does not apply to the issuance of the Warrants
or to any of the transactions described in subsection (b) of this Section 9.
(f) Adjustment for Tender Offer.
If Parent consummates a tender offer for any Common Stock and
purchases shares pursuant to such tender offer for an aggregate consideration
having a Fair Market Value as of the last time (the "Expiration Time") that
tenders may be made pursuant to such tender offer (as it shall have been
amended) that, together with (i) the aggregate of the cash plus the Fair Market
Value of the consideration paid in respect of any other tender offer by Parent
for any Common Stock consummated within the twelve months preceding the
Expiration Time and in respect of which no adjustment pursuant to this
subsection (f) has been made previously and (ii) the aggregate amount of any
distributions to all holders of Common Stock made exclusively in cash within
twelve months preceding the Expiration Time and in respect of which no
adjustment pursuant to this subsection (f) has been made previously exceeds
10.0% of the product of the Specified Value per share immediately prior to the
Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time, the Warrant Number shall
be adjusted in accordance with the formula:
W' = W x M x (O - N)
-------------------
(M x O) - F
where:
WN = the adjusted Warrant Number.
W = the Warrant Number immediately prior to the Expiration
Time.
M = the Specified Value per share of Common Stock
immediately prior to the Expiration Time.
O = the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time.
F = the Fair Market Value of the aggregate consideration
paid for all shares of Common Stock purchased pursuant
to the tender offer.
N = the number of shares of Common Stock accepted for
payment in such tender offer.
If the number of shares accepted for payment in such tender offer or
the aggregate consideration payable therefor have not been finally determined by
the opening of business on the day following the Expiration Time, the adjustment
required by this subsection (f) shall, pending such final determination, be made
based upon the preliminary announced results of such tender offer, and, after
such final determination shall have been made, the adjustment required by this
subsection (f) shall be based upon the number of shares accepted for payment in
such tender offer and the aggregate consideration payable therefor as so finally
determined.
(g) "Specified Value" per share of Common Stock or of any other
security (herein collectively referred to as a "Security") at any date
shall be:
(1) if the Security is not registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (i) the value of
the Security determined in good faith by the Board of Directors of Parent
and certified in a board resolution, based on the most recently completed
arm's length transaction between Parent and a person other than an
Affiliate of Parent in which such determination is necessary and the
closing of which occurs on such date or shall have occurred within the six
months
preceding such date, (ii) if no such transaction shall have occurred on
such date or within such six-month period, the value of the Security most
recently determined as of a date within the six months preceding such date
by an Independent Financial Expert or (iii) if neither clause (i) nor (ii)
is applicable, the value of the Security as mutually agreed by Parent and
Holders of at least a majority of the Warrants outstanding; provided,
however, that if Parent and such Holders are unable to mutually agree upon
such value, Parent shall select an Independent Financial Expert reasonably
acceptable to the Holders of a majority of the Warrants outstanding who
shall determine the value of such Security, or
(2) if the Security is registered under the Exchange Act,
the average of the daily market prices for each Business Day during the
period commencing 30 Business Days before such date and ending on the date
one day prior to such date or, if the Security has been registered under
the Exchange Act for less than 30 consecutive Business Days before such
date, then the average of the daily market prices (as hereinafter defined)
for all of the Business Days before such date for which daily market
prices are available. If the market price is not determinable for at least
15 Business Days in such period, the Specified Value of the Security shall
be determined as if the Security was not registered under the Exchange
Act.
The "market price" for any Security on each Business Day means: (A)
if such Security is listed or admitted to trading on any securities exchange,
the closing price, regular way, on such day on the principal exchange on which
such Security is traded, or if no sale takes place on such day, the average of
the closing bid and asked prices on such day or (B) if such Security is not then
listed or admitted to trading on any securities exchange, the last reported sale
price on such day, or if there is no such last reported sale price on such day,
the average of the closing bid and the asked prices on such day, as reported by
a reputable quotation source designated by Parent. If there are no such prices
on a Business Day, then the market price shall not be determinable for such
Business Day.
In the case of Common Stock, if more than one class of Common Stock
of Parent is outstanding, the "Specified Value" shall be the highest of the
Specified Values per share of all such classes of Common Stock.
"Independent Financial Expert" shall mean a nationally recognized
investment banking firm selected by the Company (i) that does not (and whose
directors, officers, employees and Affiliates do not) have a direct or indirect
financial
interest in Parent, (ii) that has not been, and, at the time it is called upon
to serve as an Independent Financial Expert under this Agreement is not (and
none of whose directors, officers, employees or Affiliates is) a promoter,
director or officer of Parent, (iii) that has not been retained by Parent for
any purpose, other than to perform an equity valuation, within the preceding
twelve months, and (iv) that, in the reasonable judgment of the Board of
Directors of Parent, is otherwise qualified to serve as an independent financial
advisor. Any such person may receive customary compensation and indemnification
by Parent for opinions or services it provides as an Independent Financial
Expert.
(h) Consideration Received
For purposes of any computation respecting consideration received
pursuant to subsections (d) and (e) of this Section 9, the following shall
apply:
(1) in the case of the issuance of shares of Common
Stock for cash, the consideration shall be the amount of such cash
(without any deduction being made for any commissions, discounts or other
expenses incurred by Parent for any underwriting of the issue or otherwise
in connection therewith);
(2) in the case of the issuance of shares of Common
Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair market value
thereof (irrespective of the accounting treatment thereof) as determined
in good faith by the Board of Directors of Parent; and
(3) in the case of the issuance of options, warrants
or other securities convertible into or exchangeable or exercisable for
shares of Common Stock, the aggregate consideration received therefor
shall be deemed to be the consideration received by Parent for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by Parent upon the conversion, exchange or exercise
thereof (the consideration in each case to be determined in the same
manner as provided in clauses (1) and (2) of this subsection).
(i) When De Minimis Adjustment May Be Deferred
No adjustment in the Warrant Number need be made unless the
adjustment would require an increase or decrease of at least 0.5% in the Warrant
Number. Any adjustment that is not made shall be carried forward and taken into
account in any subsequent adjustment, provided that no such adjustment shall be
deferred beyond the date on which a Warrant is exercised.
All calculations under this Section 9 shall be made to the nearest
1/1000th of a share.
(j) Adjustment to Exercise Price
Upon each adjustment to the Warrant Number pursuant to this Section
9, the Exercise Price shall be adjusted so that it is equal to the Exercise
Price in effect immediately prior to such adjustment multiplied by a quotient,
the numerator of which is the Warrant Number in effect immediately prior to such
adjustment, and the denominator of which is the Warrant Number in effect
immediately after such adjustment.
(k) When No Adjustment Required
If an adjustment is made upon the establishment of a record date for
a distribution subject to subsection (a), (b) or (c) hereof and such
distribution is subsequently cancelled, the Warrant Number and Exercise Price
then in effect shall be readjusted, effective as of the date when the Board of
Directors of Parent determines to cancel such distribution, to that which would
have been in effect if such record date had not been fixed.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the amount of cash into which such
Warrants are exercisable. Interest will not accrue on the cash.
(l) Notice of Adjustment
Whenever the Warrant Number or Exercise Price is adjusted, Parent
shall provide the notices required by Section 11 hereof.
(m) Voluntary Reduction
Parent from time to time may reduce the Exercise Price by any amount
for any period of time (including, without limitation, permanently) if the
period is at least 20 days and if the reduction is irrevocable during the
period.
Whenever the Exercise Price is reduced, Parent shall mail to the
Holders a notice of the reduction. Parent shall mail the notice at least 15 days
before the date the reduced Exercise Price takes effect. The notice shall state
the reduced Exercise Price and the period it will be in effect.
A reduction of the Exercise Price under this subsection (m) (other
than a permanent reduction) does not change or adjust the Exercise Price
otherwise in effect for purposes of subsections (a), (b), (c), (d), (e) or (f)
of this Section 9.
(n) Reorganizations
In case of any capital reorganization, other than in the cases
referred to in subsections 9(a), (b), (c), (d), (e) or (f) hereof, or the
consolidation or merger of Parent with or into another corporation (other than a
merger or consolidation in which Parent is the continuing corporation and which
does not result in any reclassification of the outstanding shares of Common
Stock into shares of other stock or other securities or property), or the sale
of the property of Parent as an entirety or substantially as an entirety
(collectively, such actions being hereinafter referred to as "Reorganizations"),
there shall thereafter be deliverable upon exercise of any Warrant (in lieu of
the number of shares of Common Stock theretofore deliverable) the number of
shares of stock or other securities or property to which a holder of the number
of shares of Common Stock that would otherwise have been deliverable upon the
exercise of such Warrant would have been entitled upon such Reorganization if
such Warrant had been exercised in full immediately prior to such
Reorganization. In case of any Reorganization, appropriate adjustment, as
determined in good faith by the Board of Directors of Parent, whose
determination shall be described in a duly adopted resolution certified by
Parent's Secretary or Assistant Secretary, shall be made in the application of
the provisions herein set forth with respect to the rights and interests of
Holders so that the provisions set forth herein shall thereafter be applicable,
as nearly as possible, in relation to any shares or other property thereafter
deliverable upon exercise of Warrants.
Parent shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation resulting
from such Reorganization or the corporation purchasing or leasing such assets or
other appropriate corporation or entity shall expressly assume, by a
supplemental Warrant Agreement or other acknowledgment executed and delivered to
the Holder(s), the obligation to deliver to each such Holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such Holder may be entitled to purchase, and all other obligations and
liabilities under this Agreement.
(o) Form of Warrants
Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
(p) Other Dilutive Events
In case any event shall occur as to which the provisions of this
Section 9 are not strictly applicable but the failure to make any adjustment
would not fairly protect the purchase rights represented by the Warrants in
accordance with the essential intent and principles of such sections, then, in
each such case, Parent shall make a good faith adjustment to the Exercise Price
and Warrant Number into which each Warrant is exercisable in accordance with the
intent of this Section 9 and, upon the written request of the Holders of a
majority of the Warrants, shall appoint a firm of independent certified public
accountants of recognized national standing (which may be the regular auditors
of Parent), which shall give their opinion upon the adjustment, if any, on a
basis consistent with the essential intent and principles established in this
Section 9, necessary to preserve, without dilution, the purchase rights
represented by these Warrants. Upon receipt of such opinion, Parent shall
promptly mail a copy thereof to the Holder of each Warrant and shall make the
adjustments described therein.
(q) Miscellaneous
For purpose of this Section 9, the term "shares of Common Stock"
shall mean (i) shares of any class of stock designated as Common Stock of Parent
as of the date of this Agreement, and (ii) shares of any other class of stock
resulting from changes to or reclassification of such shares referred to in
clause (i). In the event that at any time, as a result of an adjustment made
pursuant to this Section 9, the holders of Warrants shall become entitled to
purchase any securities other than, or in addition to, shares of Common Stock,
thereafter the number or amount of such other securities so purchasable upon
exercise of each Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in subsections (a) through (p) of this
Section 9, inclusive, and the provisions of Sections 5, 6, 8 and 10 with respect
to the Warrant Shares or the Common Stock shall apply on like terms to any such
other securities.
SECTION 10. Fractional Interests. Parent shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 10,
be issuable on the exercise of any Warrants (or specified portion thereof),
Parent shall pay an amount in cash equal to the fair market value of the Warrant
Share so issuable (as determined in good faith by the Board of Directors),
multiplied by such fraction.
SECTION 11. Notices to Warrant Holders. Upon any adjustment pursuant
to Section 9 hereof, Parent shall promptly thereafter (i) cause to be filed with
the corporate records of Parent a certificate of an Officer of Parent setting
forth the Warrant Number and Exercise Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculations are based, and (ii) cause to be given to each of the Holders
at its address appearing on the Warrant Register written notice of such
adjustments in accordance with the provisions of Section 12 hereof. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 11.
In case:
(a) Parent shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants; or
(b) Parent shall authorize the distribution to all holders
of shares of Common Stock of assets, including cash, evidences of its
indebtedness, or other securities; or
(c) of any consolidation or merger to which Parent is a
party and for which approval of any stockholders of Parent is required, or
of the conveyance or transfer of the properties and assets of Parent
substantially as an entirety, or of any reclassification or change of
Common Stock issuable upon exercise of the Warrants (other than a change
in par value, or from par value to no par value, or from no par value to
par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for
shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of Parent; or
(e) Parent proposes to take any action that would require an
adjustment to the Warrant Number or the Exercise Price pursuant to Section
9 hereof; or
(f) Parent proposes to take any action which would give rise
to the Holders' preemptive rights as specified in the Stockholders
Agreement;
then Parent shall cause to be given to each of the Holders at its address
appearing on the Warrant Register, at least 30 days prior to the applicable
record date hereinafter specified, or the date of the event in the case of
events for which there is no record date, in accordance with the provisions of
Section 12 hereof, a written notice stating (i) the date as of which the holders
of record of shares of Common Stock to be entitled to receive any such rights,
options, warrants or distribution are to be determined, or (ii) the initial
expiration date set forth in any tender offer or exchange offer for shares of
Common Stock, or (iii) the date on which any such consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up is expected to
become effective or consummated, and the date as of which it is expected that
holders of record of shares of Common Stock shall be entitled to exchange such
shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up, or (iv) the exercise date of, and other material
information pertaining to, the above-referenced preemptive rights. The failure
to give the notice required by this Section 11 or any defect therein shall not
affect the legality or validity of any distribution, right, option, warrant,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up, or the vote upon any action.
Nothing contained in this Agreement or in any Warrant Certificate
shall be construed as conferring upon the Holders (prior to the exercise of such
Warrants) the right to vote or to consent or to receive notice as stockholder in
respect of the meetings of stockholders or the election of Directors of Parent
or any other matter, or any rights whatsoever as stockholders of Parent;
provided, however, that nothing in the foregoing provision is intended to
detract from any rights explicitly granted to any Holder hereunder or under the
Purchase Agreement.
SECTION 12. Notices to Parent and Warrant Holders. All notices and
other communications provided for or permitted hereunder shall be made by
hand-delivery, first-class mail, telecopier, or overnight air courier
guaranteeing next day delivery:
(a) if to Purchasers at their respective addresses and
telecopy numbers set forth on the signature pages of the Purchase
Agreement, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Telecopy
number (000) 000-0000, attention Xxxxxxx X. Xxxxx, Esq.; and
(b) if to Parent, at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopy number (000) 000-0000, Attention: Xxxxx X.
Xxxxx, with a copy to Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Telecopy No. (000) 000-0000,
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. The parties may change the addresses to which notices are to be given
by giving five days' prior written notice of such change in accordance herewith.
SECTION 13. Preemptive Right. The Holders have preemptive rights
pursuant to, and as set forth in, the Stockholders Agreement.
SECTION 14. Certain Supplements and Amendments. Parent may from time
to time supplement or amend this Agreement without the approval of any Holders
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 Parent may deem necessary or desirable; provided that
any such supplement or amendment shall not in any way adversely affect the
interests of the Holders.
SECTION 15. Successors. All the covenants and provisions of this
Agreement by or for the benefit of Parent shall bind and inure to the benefit of
its respective successors and assigns hereunder.
SECTION 16. Termination. This Agreement shall terminate if all
Warrants have been exercised pursuant to this Agreement.
SECTION 17. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK
CIVIL PRACTICE LAWS AND RULES. PARENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND THE WARRANTS, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. PARENT IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY HOLDER OF A WARRANT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
PARENT IN ANY OTHER JURISDICTION.
SECTION 18. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than Parent, the
Holders and holders of Warrant Shares any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of Parent and the Holders.
SECTION 19. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 20. Amendments and Waivers. Subject to Section 14, no
provision of this Agreement may be amended or waived except by an instrument in
writing signed by the party sought to be bound; provided, that any amendment or
waiver sought from the Holders of any provision of this Agreement which affects
Holders generally shall be given by Holders of at least a majority of the
Warrants outstanding (or, in the case of amendments or waivers affecting holders
of Warrant Shares generally, by holders of at least a majority of the Warrants
and Warrant Shares, taken as one class, with each Warrant and each Warrant Share
representing the right to one vote) and any amendment or waiver so given shall
be binding on all such holders. No failure or delay by any party in exercising
any right or remedy hereunder shall operate as a waiver thereof, and a waiver of
a particular right or remedy on one occasion shall not be deemed a waiver of any
other right or remedy or a waiver of the same right or remedy on any subsequent
occasion.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed as of the day and year first above written.
CFSL HOLDINGS CORP.
By:/s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.
TCW/CRESCENT MEZZANINE TRUST III and
TCW/CRESCENT MEZZANINE PARTNERS NETHERLANDS, L.P.
By: TCW/Crescent Mezzanine Management III, L.L.C.
its Investment Manager
By:/s/ Xxx Xxxxxxx
----------------------
Name: Xxx Xxxxxxx
Title: SVP
