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Exhibit 4.1
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WARRANT AGREEMENT
BETWEEN
THE HORN & HARDART COMPANY
AND
NORTH AMERICAN RESOURCES LIMITED
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Dated As Of October 25, 1991
For 279,110 Shares
of Common Stock
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Exhibit 4.1
WARRANT AGREEMENT (the "Agreement") dated as of October 25, 1991,
between THE HORN & HARDART COMPANY, a Nevada corporation (the "Company"), and
NORTH AMERICAN RESOURCES LIMITED, a British Virgin Islands corporation ("NAR").
WHEREAS, NAR has agreed to make an equity investment in the Company
and The Hanover Companies, Inc., a Nevada corporation and wholly-owned direct
subsidiary of the Company, pursuant to the Stock Purchase Agreement dated as of
July 8, 1991, as amended (the "Stock Purchase Agreement"); and
WHEREAS, as an inducement to NAR to enter into the Stock Purchase
Agreement, the Company proposes to issue to NAR warrants defined (the
"Warrants") to purchase up to an aggregate of 279,110 shares (the "Warrant
Shares") of the Company's Common stock, par value $0.66-2/3 per share (the
"Common Stock"), each Warrant entitling the holder thereof to purchase one share
of Common Stock for an exercise price of $5.25, or such other price as is
established pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant Certificate. Concurrently
with the execution of this Agreement, the Company will issue and deliver the
Warrants to NAR. The number of Warrants to be issued and delivered shall be
equal to 279,110. The text of the Warrant Certificate (the "Warrant
Certificate") and the form of election to purchase Warrant Shares to be printed
on the reverse thereof shall be as set forth in Annex A attached hereto. The
Warrant Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the Chairman of the Board, President or Vice President of
the Company, attested to by the manual or facsimile signature of the Secretary
or an Assistant Secretary of the Company.
The Warrant Certificate and any later certificate issued upon
division, exchange, substitution or transfer thereof (collectively
"Certificates"), bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company, shall bind the Company,
notwithstanding that such individuals or any one of them shall have ceased to
hold such offices prior to the delivery of such Warrants or did not hold
such offices on the date of this Agreement.
Certificates shall be dated as of the date of execution thereof by
the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
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2. Registration. The Warrants shall be numbered and shall be
registered in a Warrant Register as they are issued. The Company shall be
entitled to treat the registered holder of any Certificate on the Warrant
Register (the "Holder") as the owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in such
Certificate on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of the fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith. The Warrants shall be registered
initially in the name of "Westmark Holdings Limited".
3. Exchange of Warrant Certificates. Subject to any restriction upon
transfer set forth in this Agreement, each Certificate may be exchanged for
another Certificate or Certificates entitling the Holder thereof to purchase a
like aggregate number of Warrant Shares as the Certificate or Certificates
surrendered then entitle such Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Warrant Certificates shall make such request
in writing delivered to the Company, and shall surrender, properly endorsed, the
Warrant Certificate or Warrant Certificates to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new Warrant
Certificate or Warrant Certificates, as the case may be, as so requested. The
Company may require payment by a Holder requesting such exchange of a sum
sufficient to cover any tax or other governmental charge that may be imposed
therewith.
4. Transfer of Warrants and Warrant Shares.
(a) The Warrants will not be transferable except to affiliates
of NAR. The Warrants shall be transferable only on the books of the Company (the
"Warrant Register") upon delivery thereof, duly endorsed by the Holder or by his
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer, in each case accompanied by any
necessary transfer tax or other governmental charge imposed upon transfer, or
evidence of the payment thereof. In all cases of transfer by an attorney, the
original power of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited with the Company. In case of transfer by
executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited with the Company in its discretion. Upon any registration of
transfer, the Company shall promptly deliver a new Certificate or
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Certificates to the persons entitled thereto. Notwithstanding the foregoing, the
Company shall have no obligation to cause Warrants to be transferred on its
books to any person, unless the holder of such Warrants shall furnish to the
Company evidence of compliance with the Securities Act of 1933, as amended (the
"Act"), in accordance with the provisions of this Section.
(b) NAR covenants to the Company that NAR will not dispose of
any Warrants or Warrant Shares except pursuant to (i) an effective Registration
Statement or (ii) an opinion of counsel, reasonably satisfactory to counsel for
the Company, that an exemption from such registration is available.
(c) The Warrants shall be subject to a stop-transfer order and
any Certificates shall bear the following legend by which each Holder shall be
bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES
OF COMMON STOCK ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
FILED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
OPINION OF COUNSEL, WHICH OPINION SHALL BE REASONABLY SATISFACTORY
TO COUNSEL FOR THIS CORPORATION, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE."
(d) The Warrant Shares shall be subject to a stop-transfer
order and any certificates evidencing any such shares shall bear the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
FILED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
OPINION OF COUNSEL, WHICH OPINION SHALL BE REASONABLY SATISFACTORY
TO COUNSEL FOR THIS CORPORATION, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE."
5. Term of Warrants; Exercise of Warrants.
(a) Each Warrant entitles the Holder thereof to purchase, on
or after the date hereof, one share of Common Stock at any time on or before
5:00 p.m., New York Time, on July 10, 1996 (the "Expiration Date"), at the
lesser of (i) $5.25 per share or (ii) if there shall have occurred a Rights
Offering (as such term is defined in the Stock Purchase Agreement), a price per
share equal to the product of 1.75 multiplied by the Rights Offering Price (as
such term is defined in the Stock Purchase Agreement) (the "Exercise Price") as
the same may be adjusted pursuant to Annex B hereof.
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(b) Subject to the provisions of this Agreement, the Holder of
each Warrant shall have the right, which may be exercised as expressed in such
Warrant, to purchase from the Company (and the Company shall issue and sell to
each such Holder) one fully paid and nonassessable share of Common Stock upon
surrender to the Company, or its duly authorized agent, of the Certificate or
Certificates representing such Warrant or Warrants, with the form of election to
purchase on the reverse thereof duly filled in and signed, and upon payment to
the Company of the Exercise Price. Payment of such Exercise Price may be made in
cash or by certified or official bank check or wire transfer payable to the
order of the Company.
(c) Subject to Section 6 hereof, upon such surrender of
Warrants, and payment of the Exercise Price as aforesaid, the Company shall
issue and cause to be delivered to the Holder or upon the written order of such
Holder and (subject to receipt of evidence of compliance with the Act in
accordance with the provisions of Section 4 of this Agreement) in such name or
names as the Holder may designate, a Certificate a Certificate or Certificates
for the number of full Warrant Shares so purchased, together with cash or check,
as provided in Section 10 of this Agreement, in respect of a fraction of a share
of such stock otherwise issuable upon such surrender and, if the number of
Warrants represented by a Certificate shall not be exercised in full, a new
Certificate or Certificates, executed by the Company, for the balance of the
number of whole Warrants represented by the surrendered Certificate.
(d) If permitted by applicable law, such Certificate or
Certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
shares as of the date of the surrender of such Warrants and payment of the
Exercise Price. The Warrants shall be exercisable, at the election of the Holder
thereof, either as an entirety or from time to time for part of the shares
specified therein.
6. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any Warrants or certificates for Warrant Shares in a
name other than that of the Holder of such Warrants.
7. Mutilated or Missing Certificates. In case any Certificates shall
be mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and in substitution
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for and upon cancellation of the mutilated Certificates, or in lieu of and in
substitution for the Certificates lost, stolen or destroyed, new Certificates of
like tenor and representing an equivalent right or interest; but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Certificates and of indemnity or bond, if requested, also
satisfactory to the Company. An applicant for such substitute Certificates shall
also comply with such other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
8. Reservation of Warrant Shares; Authorization.
8.1 Reservation of Warrant Shares. The Company has reserved and will
keep available, out of the authorized and unissued shares of Common Stock or the
authorized and issued shares of Common Stock held in the Company's Treasury, the
full number of shares sufficient to provide for the exercise of the rights of
purchase represented by all the outstanding Warrants. The transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent Transfer Agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Company will supply such Transfer Agent with
duly executed stock certificates for such purpose and will itself provide or
otherwise make available any cash or check which may be issuable as provided in
Section 10 of this Agreement. The Company will furnish to such Transfer Agent a
copy of all notices of adjustments and certificates related thereto, transmitted
to each Holder pursuant to this Agreement. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be cancelled.
8.2 Authorization. This Agreement has been duly and validly executed
and delivered by the Company and this Agreement constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms (except in
each such case as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and except that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and except as rights to indemnity and
contribution hereunder and thereunder may be
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limited by federal or state securities laws). The execution, delivery and
performance of this Agreement by the Company and compliance by the Company with
the terms and provisions hereof do not and will not violate any provision of any
law, rule or regulation, order, writ, judgment, injunction, statute, decree,
determination or award having applicability to the Company, or any of its
properties or assets. The execution, delivery and performance of this Agreement
by the Company and compliance by the Company with the terms and provisions
hereof do not and will not (i) conflict with or result in a breach of or
constitute a default under any provision of the charter or by-laws of the
Company; or (ii) give rise to an event of default which may result in the
acceleration of any material amount of Indebtedness (as such item is defined in
the Stock Purchase Agreement) or an event of default under any other material
contractual obligation of the Company. The Company covenants that upon issuance
and delivery against payment pursuant to the terms of their Warrant Agreement,
all Warrant Shares will be validly issued, fully paid and nonassessable
outstanding shares of Common Stock of the Company. The Company represents and
warrants that the number of outstanding shares of the Company is 13,910,177.
Except as set forth on Schedule 1 attached hereto, there are not outstanding
subscriptions, convertible securities, options, warrants or other rights,
agreements or commitments to subscribe for or purchase or acquire from the
company, or any contracts providing for the issuance of, or the granting of
rights to acquire any capital stock of the Company or any securities convertible
or exchangeable for any such capital stock. There are no preemptive rights with
respect to and there are no outstanding contractual obligations of the Company
to repurchase, redeem or otherwise acquire any shares of the Company.
9. Adjustments of Exercise Price and Number of Shares. The Exercise
Price and Warrant Shares shall be adjusted under certain circumstances in
accordance with Annex B attached hereto and expressly incorporated herein and
made a part hereof.
10. Fractional Shares of Common Stock. The Company 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 Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the Closing Price for one share of
the Common Stock, on the trading day immediately preceding the date the Warrant
is presented for exercise,
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multiplied by such fraction. The Company may also make any payment required by
this Section 10 by check.
11. Registration Rights. The Holder shall have those registration
rights with respect to the Warrant Shares as set forth in that certain
Registration Rights Agreement dated as of July 8, 1991 by and among the Company,
NAR and Intercontinental Mining & Resources Limited (the "Registration Rights
Agreement").
12. Rights as Stockholders, Notices to Holders. Nothing contained in
this Agreement or in any of the Warrants shall be construed as conferring upon
the Holders or their transferees the right to vote or to receive dividends or to
consent to or receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall take any action which requires an
adjustment under Annex B attached hereto; or
(b) a merger occurs to which the Company is a party and for
which approval of any stockholders of the Company is required, or of
the conveyance or transfer of the properties and assets of the
Company as, or substantially as, an entirety, or of any
reclassification or change of outstanding Warrant Shares 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
(c) voluntary or involuntary dissolution, liquidation, or
winding up of the Company;
then in any one or more of said events the Company shall give notice in writing
of such event to the Holders at least 20 days (10 days in any case specified in
clauses (a) and (b) above) prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the stockholders entitled
to such dividend, distribution, or subscription rights, or for the determination
of stockholders entitled to vote on such proposed merger, sale,
reclassification, dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
13. Miscellaneous.
(a) Notices. Any notice pursuant to this Agreement to be given
or made by the Holder of any Warrant
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Certificate to the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed as follows:
The Horn & Hardart Company
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Executive Vice President
and General Counsel
Notices or demands authorized by this Agreement to be given or made to the
Holder of any Warrant shall be sufficiently given or made (except as otherwise
provided in this Agreement) if sent by first-class mail, postage prepaid,
addressed to such Holder at the address of such Holder as shown on the Warrant
Register.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflict of laws.
(c) Amendments and Waivers. This Agreement may be amended,
modified or superseded only by written instrument signed by all of the parties
hereto, and any of the terms, provisions, and conditions hereof may be waived,
only by a written instrument signed by the party waiving such term, provision or
condition.
(d) Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Holders shall bind and
inure to the benefit of their respective successors and assigns hereunder.
(e) Merger or Consolidation of the Company. So long as
Warrants remain outstanding, until the Expiration Date, the Company will not
merge or consolidate with or into, or sell, transfer to or lease all or
substantially all of its property to, any other corporation unless the successor
or purchasing corporation, as the case may be (if not the Company), shall
expressly assume, by supplemental agreement executed and delivered to the
Holder, the due and punctual performance and observance of each and every
covenant and condition of this Agreement to be performed and observed by the
Company.
(f) Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company
and the Holder, any legal or equitable right, remedy or claim under this
Agreement, but this Agreement shall be for the sole and exclusive benefit of the
Company and the Holder of the Warrants and Warrant Shares.
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(g) Captions. The captions of the sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
(h) Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts together shall constitute but one and the same instrument.
(i) Termination. This Agreement shall terminate at the close
of business on the Expiration Date or any earlier date when all Warrants have
been exercised, provided that the registration rights provided for in the
Registration Rights Agreement shall remain in full force and effect to the
extent provided for therein.
(j) Specific Performance. The parties hereto acknowledge and
agree that in the event of any breach of this Agreement, NAR would be
irreparably harmed and would not be made whole by monetary damages. It is
accordingly agreed that NAR, in addition to monetary damage and any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day, month and year first above written.
THE HORN & HARDART COMPANY
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
NORTH AMERICAN RESOURCES
LIMITED
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
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Annex A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
OPINION OF COUNSEL, WHICH OPINION SHALL BE REASONABLY SATISFACTORY
TO COUNSEL FOR THIS CORPORATION, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT
REFERRED TO HEREIN.
No. 1 279,110 Warrants
VOID AFTER 5:00 P.M. NEW YORK CITY
TIME ON JULY 10, 1996
THE HORN & HARDART COMPANY
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received the registered holder hereof
or registered assign (the "Holder"), is the owner of the number of Warrants set
forth above, each of which entitles the owner thereof to purchase on or after
the date hereof, at any time on or before 5:00 P.M., New York City time, on July
10, 1996, one fully paid and nonassessable share of Common Stock, $0.66-2/3 par
value (the "Common Stock") of The Horn & Hardart Company, a Nevada corporation
(the "Company"), at the purchase price of the lesser of (i) $5.25 per share or
(ii) if there shall have occurred a Rights Offering (as such term is defined in
the Stock Purchase Agreement), a price per share equal to the product of 1.75
multiplied by the Rights Offering Price (as such term is defined in the Stock
Purchase Agreement) (the "Exercise Price"). Payment of the Exercise Price may be
made in cash or by certified or official bank check to the order of the Company.
As provided in the Agreement referred to below, the Exercise Price and the
number or kind of shares which may be purchased upon the exercise of the
Warrants evidenced by this Warrant Certificate are, upon the happening of
certain events, subject to modification and adjustment.
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This Warrant Certificate is subject to and entitled to the benefits
of all of the terms, provisions and conditions of that certain agreement dated
as of October 25, 1991 (the "Warrant Agreement") by and between the Company and
North American Resources Limited, which Warrant Agreement is hereby incorporated
herein by reference and made a part hereof and to which Warrant Agreement
reference is hereby made of a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Company and the
Holders of the Warrant Certificates. Copies of the Warrant Agreement are on file
at the principal office of the Company.
The Holder hereof may be treated by the Company and all other
persons dealing with this Warrant Certificate as the absolute owner hereof for
any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books, the Company may
treat the Holder hereof as the owner for all purposes.
This Warrant Certificate, with or without other Warrant
Certificates, upon surrender at the principal office of the Company, may be
exchanged for another Warrant Certificate or Warrant Certificates of like tenor
and date evidencing Warrants entitling the Holder to purchase a like aggregate
number of shares of Common Stock as the Warrants evidenced by the Warrant
Certificate or Warrant Certificates surrendered. If this Warrant Certificate
shall be exercised in part, the Holder shall be entitled to receive upon
surrender hereof, another Warrant Certificate or Warrant Certificates for the
number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the
exercise of any Warrant or Warrants evidenced hereby, but in lieu thereof
payment will be made as provided in the Warrant Agreement.
No Holder shall be entitled to vote or to receive dividends 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 hereof for any purpose, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon such Holder, as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value or change of stock to no par
value,
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consolidation, merger, conveyance, or otherwise) or, except as provided in the
Warrant Agreement, to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant or Warrants evidenced by
this Warrant Certificate shall have been exercised and the Common Stock
purchasable upon the exercise thereof shall have become deliverable as provided
in the Warrant Agreement.
IN WITNESS WHEREOF, The Horn & Hardart Company has caused the
signature of its Executive Vice President and General Counsel to be printed
hereon.
THE HORN & HARDART COMPANY
By:
------------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
General Counsel
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PURCHASE FORM
(To be executed upon exercise of warrant)
To The Horn & Hardart Company:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the Warrant Certificate attached hereto for, and to
purchase thereunder, ___________________ shares of Common Stock, as provided for
therein, and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check in the amount of $_______________.
Please issue a Certificate or Certificates for such shares of Common
Stock in the name of, and pay any cash for any fractional share to:
PLEASE INSERT SOCIAL SECURITY Name__________________________
OR OTHER IDENTIFYING NUMBER (Please Print Name and Address)
OF ASSIGNEE
______________________________________ Address_________________________
______________________________________ Signature_______________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
or with the name of assignee appearing
in the assignment form below.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
Dated: __________________________, 19__
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Annex B
Antidilution
The provisions set forth in this Annex B shall constitute a part of
that certain Warrant Agreement dated October 25, 1991 by and between the Horn &
Hardart Company and North American Resources Limited (the "Agreement"). Defined
terms used herein and not otherwise defined shall have the meaning set forth in
the Agreement.
1. Adjustments. The number of Warrant Shares purchasable upon the
exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine
its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (iv) reclassify its
shares of Common Stock, the number of Warrant Shares
purchasable upon exercise of the Warrant immediately
prior thereto shall be adjusted so that the Holder of
the Warrant shall be entitled to receive the kind and
number of Warrant Shares which it would have owned or
have been entitled to receive after any of the events
described above, had the Warrant been exercised
immediately prior to such event or any record date with
respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock,
other than pursuant to the Rights Offering (as defined
in the Stock Purchase Agreement) if the Rights Offering
Price (as defined
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in the Stock Purchase Agreement) is less than $3.00 per
share, without any charge to such holders, entitling
them to subscribe for or purchase shares of Common Stock
at a price per share which is lower at the record price
per share which is lower at the record date mentioned
below than the then current market price per share of
Common Stock (as defined in paragraph (d) below), the
number of Warrant Shares thereafter purchasable upon the
Exercise of the Warrant shall be determined by
multiplying the number of Warrant Shares theretofore
purchasable upon exercise of each Warrant by a fraction,
the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such
rights, options or warrants plus the number of
additional shares of Common Stock offered for
subscription or purchase, and the denominator of which
shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights,
options or warrants plus the number of shares which the
aggregate offering price of the total number of shares
of Common Stock so offered would purchase at the then
current market price per share of Common Stock. Such
adjustment shall be made whenever such rights, options
or warrants are issued, and shall become effective
retroactively immediately after the record date for the
determination of stockholders entitled to receive such
rights, options or entitled to receive such rights,
options or warrants, subject to readjustment as provided
in paragraph (i) below.
(c) In case the Company shall distribute to all holders of
its shares of Common Stock evidences of its indebtedness
or assets (excluding cash dividends or distributions
payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraphs
(a) above) or rights, options or warrants or convertible
or exchangeable securities
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containing the right to subscribe for or purchase shares
of Common Stock (excluding those referred to in
paragraph (b) above), then in each case the number of
Warrant Shares thereafter purchasable upon the exercise
of the Warrant shall be determined by multiplying the
number of Warrant Shares theretofore purchasable upon
the exercise of the Warrant, by a fraction, the
numerator of which shall be the then current market
price per share of Common Stock (as defined in paragraph
(d) below) on the date of such distribution, and the
denominator of which shall be the then current market
price per share of Common Stock, less the then fair
value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be
conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription
rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of
Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on
the date of distribution retroactive to the record date
for the determination of shareholders entitled to
receive such distribution.
(d) For the purpose of any computation under paragraphs (b)
and (c) of this Section the current market price per
share of Common Stock at any date shall be the average
of the daily market prices for 30 consecutive trading
days commencing 45 trading days before the date of such
computation. The daily market price for each day shall
be the last reported sale price regular way or, in case
no such reported sale takes place on such day, the
average of the reported closing bid and asked prices
regular way, in either case on the principal national
securities
- 3 -
18
exchange on which the Common Stock is listed or admitted
to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the
highest reported bid and lowest reported asked
quotations for the Common Stock on NASDAQ or any
comparable system.
(e) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at
least one percent (1%) in the number of Warrant Shares
purchasable upon the exercise of the Warrant; provided,
however, that any adjustments which by reason of this
paragraph (e) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the
nearest one-thousandth of a share. Notwithstanding the
first sentence of this paragraph (e), any adjustment
shall be made no later than the earlier of three years
from the date of the transaction which mandates such
adjustment or the expiration of the right to exercise
any Warrant.
(f) Whenever the number of Warrant Shares purchasable upon
the exercise of each Warrant is adjusted, as herein
provided, the Exercise Price payable upon exercise of
each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a
fraction, the numerator of which shall be the number of
Warrant Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and the
denominator of which shall be the number of Warrant
Shares so purchasable immediately thereafter.
(g) In case the Company shall sell and issue shares of
Common Stock, or rights, options, warrants or
convertible
- 4 -
19
securities containing the right to subscribe for or
purchase shares of Common Stock, at a price per share of
Common Stock (determined in the case of such rights,
options, warrants or convertible securities, by dividing
(i) the total amount received or receivable by the
Company in consideration of the sale and issuance of
such rights, options, warrants or convertible
securities, plus the total consideration payable to the
Company upon exercise or conversion thereof, by (ii) the
total number of shares of Common Stock covered by such
rights, options, warrants or convertible securities)
lower than the current market price (as defined in
paragraph (d) above) in effect immediately prior to such
sale and issuance, then the Warrant Price shall be
reduced to a price (calculated to the nearest cent)
determined by dividing (i) an amount equal to the sum of
(1) the number of shares of Common Stock outstanding
immediately prior to such sale and issuance multiplied
by the then existing Warrant Price, plus (2) the
consideration received by the Company for such sale and
issuance, by (ii) the total number of shares of Common
Stock outstanding immediately after such sale and
issuance, provided, however, that adjustments pursuant
to this paragraph (g) shall only be made if such sale or
issuance is to an officer, director or other affiliate
of the Company, or any relative of any of the above,
immediately prior to such sale or issuance, and if no
adjustment for such sale or issuance is made pursuant to
paragraph (c) above. Notwithstanding anything to the
contrary, no adjustment shall be made pursuant to this
subsection (g) in the event the Company shall issue
options to employees (including officers) or directors
in consideration of services, which options have an
exercise price not less than the
- 5 -
20
current market oprice (as defined in paragraph (d)
above) of Common Stock at the time of the issuance of
such options. The number of Warrant Shares purchasable
upon the exercise of each Warrant shall be that number
determined by multiplying the number of Warrant Shares
issuable upon exercise immediately prior to such
adjustment by a fraction, of which the numerator is the
Warrant Price in effect immediately prior to such
adjustment and the denominator is the Warrant Price as
so adjusted. For the purposes of such adjustment, the
shares of Common Stock which the holders of any such
rights, options, warrants or convertible securities
shall be entitled to subscribe for or purchase shall be
deemed to be issued and outstanding as of the date of
such sale and issuance and the consideration received by
the Company therfor shall be deemed to be the
consideration received by the Company for such rights,
options, warrants or convertible securities, plus the
consideration or premiums stated in such rights,
options, warrants, or convertible securities to be paid
for the shares of common stock, covered thereby. In case
the Company shall sell and issue shares of Common Stock,
or rights, options, warrants, or convertible securities
containing the right to subscribe for or purchse shares
of Common Stock, for a consideration consisting, in
whole or in part, of property other than cash or its
equivalent, then in determining the "price per share of
Common Stock" and the consideration received by the
Company for purposes of the first sentence of this
paragraph (g), the Board of Directors shall determine,
in its discretion, the fair value of said property and
such determination, if made in good faith, shall be
binding upon all Holders of Warrants. There shall be no
adjustment of the Warrant Price pursuant to this
- 6 -
21
paragraph (g) if the amount of such adjustment would be
less than $.05 per Share; provided, however, that any
adjustment which by reason of this provision is not
required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(h) For the purpose of this Section 1, the terms "shares of
Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Company at the
date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of
such shares consisting solely of changes in par value,
or from par value to no par value, or from no par value
to par value.
(i) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall
not have been exercised, the Exercise Price and the
number of shares of Common Stock purchasable upon such
expiration, be readjusted and shall therafter be such as
it would have been had it been originally adjusted (or
had the original adjustment not been required, as the
case may be) as if (A) the only shares of Common Stock
so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such
rights, options, warrants or conversion or exchange
rights and (B) such shares of Common Stock, if any, were
issued or sold for the consideration actually received
by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company
for the issuance, sale or grant of the rights, options,
warrants or conversion or exchange rights that were so
exercised; provided, further that no such readjustment
shall have the effect of increasing the Exercise Price
by an
- 7 -
22
amount in excess of the amount of the adjustment
initially made in respect to the issuance, sale or grant
of such rights, options, warrants or conversion or
exchange rights.
2. Notice of Adjustment. Whenever the number or Exercise Price of
Warrant Shares purchasable upon the exercise of each Warrant are adjusted, as
herein provided, the Company shall mail by first class mail, postage prepaid, to
the Holder notice of such adjustment or adjustments setting forth (i) the number
of Warrant Shares purchasable upon the exercise of each Warrant and the Exercise
Price of such Warrant Shares after such adjustment, (ii) a brief statement of
the facts requiring such adjustment and (iii) the computation by which such
adjustment was made. Such certificate shall be conclusive evidence of the
correctness of such adjustment.
3. No Adjustment for Dividends. Except as provided in Section 1, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
4. Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of all or substantially all of the property of the Company,
Holder shall have the right thereafter upon payment of the Exercise Price in
effect immediately prior to such action to purchase upon exercise of the Warrant
the kind and amount of shares and other securities, cash and property which the
Holder would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such warrant been exercised
immediately prior to such action. Adjustments to such shares and other
securities shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Annex B. The provisions of this Section 4
shall apply to successive consolidations, mergers, sales or conveyances.
5. Statement on Warrants. Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the exercise of
the Warrant, any Warrant theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the
Warrant
- 8 -
23
initially issuable pursuant to this Agreement. Upon the request of any holder of
any Warrant, the Company shall issue a new Warrant to reflect the adjustment to
number of Warrant Shares and the Exercise Price.
- 9 -
24
Schedule I
Options and Convertible Securities
1. Warrants issued to Sun Life Insurance Company of America on May 9, 1991 to
purchase at any time prior to May 9, 1996 up to an aggregate of 973,712
shares of the Company's Common Stock, par value $.66 2/3 per share, for
$4.00 per share.
2. Warrants isued to Sun Life Insurance Company of America on July 10, 1991
to purchase at any time prior to July 10, 1996 up to an aggregate of
291,667 shares of the Company's Common Stock, par value $.66 2/3 per
share, for $5.25 per share.
3. Warrants issued to Intercontinental Mining & Resources Limited on July 10,
1991 to purchase at any time prior to July 10, 1996 up to an aggregate of
1,750,000 shares of the Company's Common Stock, par value $.66 2/3 per
share, for $5.25 per share.
4. Options
OPTIONS OPTION
DATE OF EXPIRATION OUTSTANDING EXERCISE
GRANT DATE 12/29/90 PRICE
------- ---------- ----------- --------
12/11/90 12/11/95 200,000 $ 2.750
9/14/90 9/14/95 291,050 5.000
10/13/89 10/11/94 41,200 7.000
5/24/88 5/24/93 235.165 7.000
10/18/88 10/18/83 304,850 8.000
4/7/89 4/7/94 37,500 8.000
9/13/89 9/13/94 34,125 9.625
9/15/87 9/2/92 28,000 13.000
4/17/87 4/17/92 13,000 11.375
1986 22,500 12.000
1988 60,000 7.000
1989 75,000 7.250
1990 10,000 5.000
----------
1,386,123
=========
5. Convertible Debentures
Debentures Conversion
Outstanding Price
----------- ----------
7-1/2% Convertible $30,000,000 $11.70
Subordinated
Debentures due
March 1, 2007
25
6. Agreement under consideration by and among the Company, Buyer and Xxxx X.
Xxxxxxxxx.
