EXHIBIT 4.15
AMENDMENT NO. 1 TO WARRANT NO.
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Reference is made to the Stock Subscription Warrant No. ___ (the
"Warrant No. ___") of Xxxxx & Xxxxx Company (the "COMPANY"), issued to Xxx X.
Xxxxxxx Trust.
WHEREAS, pursuant to paragraph 1(b) of the Tri-Party Agreement dated
December 11, 1996 by and among the Company, Warburg, Xxxxxx Investors, L.P. and
Xxx X. Xxxxxxx, certain amendments to the Warrant No. ___ shall be effected.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Paragraph 2 of the Warrant No. ___ shall be amended in its
entirety to read as follows:
"2. PERIOD OF EXERCISE. This Stock Warrant is exercisable at any time
or from time to time prior to January 29, 2002."
2. Paragraph 4 of the Warrant No. ___ shall be amended in its
entirety to read as follows:
"4. ANTI-DILUTION PROVISIONS. The Exercise Price set forth above
shall be subject to adjustment from time to time as hereinafter provided. For
purposes of this paragraph 4, the term "Capital Stock" as used herein includes
the Company's Common Stock and shall also include any capital stock of any class
of the Company hereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided that the shares
purchasable pursuant to this Stock Warrant shall include only Common Stock.
Upon each adjustment of the Exercise Price, this Stock Warrant shall thereafter
represent the right to purchase, at the Exercise Price resulting from such
adjustment, the largest number of shares of Common Stock obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the number
of shares of Common Stock purchasable thereunder immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
In case the Company, at any time, shall be a party to any Transaction,
each holder hereof, upon the exercise hereof at any time on or after the
Consummation Date shall be entitled to receive, and this Stock Warrant shall
thereafter represent the right to receive, in lieu of the Common Stock issuable
upon exercise prior to the Consummation Date, the kind and amount of securities
or property (including cash) which it would have owned or have been entitled to
receive after the happening of such Transaction had this Stock Warrant been
exercised immediately prior to such Transaction.
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Notwithstanding anything contained herein to the contrary, the Company
shall not effect any Transaction unless prior to the consummation thereof each
corporation or entity (other than the Company) which may be required to deliver
any securities or other property upon the exercise of Stock Warrants, the
surrender of Stock Warrants or the satisfaction of exercise rights as provided
herein, shall assume, by written instrument delivered to each holder of Stock
Warrants, the obligation to deliver to such holder such securities or other
property to which, in accordance with the foregoing provisions, such holder may
be entitled, and such corporation or entity shall have similarly delivered to
each holder of Stock Warrants an opinion of counsel for such corporation or
entity, satisfactory to each holder of Stock Warrants, which opinion shall state
that all the outstanding Stock Warrants, including, without limitation, the
exercise provisions applicable thereto, if any, shall thereafter continue in
full force and effect and shall be enforceable against such corporation or
entity in accordance with the terms hereof and thereof and, together with such
other matters as such holders may reasonably request.
In case the Company shall (i) pay a dividend in shares of Capital
Stock or securities convertible into Capital Stock or make a distribution to all
holders of shares of Capital Stock in shares of Capital Stock or securities
convertible into Capital Stock, (ii) subdivide its outstanding shares of Capital
Stock, (iii) combine its outstanding shares of Capital Stock into a smaller
number of shares of Capital Stock or (iv) issue by reclassification of its
shares of Capital Stock other securities of the Corporation, the Exercise Price
shall be adjusted (to the nearest cent) by multiplying the Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares of Capital Stock outstanding immediately prior to the
occurrence of such event, and of which the denominator shall be the number of
shares of Capital Stock outstanding (including any convertible securities issued
pursuant to clause (i) or (iv) above on an as converted basis) immediately
thereafter. An adjustment made pursuant to the foregoing sentence shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(d) NOTICE OF ADJUSTMENT. Upon the occurrence of any event
requiring an adjustment of the Exercise Price, then and in each such case the
Company shall promptly deliver to each holder of Stock Warrants a certificate
signed by the President or any Vice President and the Secretary or any Assistant
Secretary of the Company (an "Officers' Certificate") stating the Exercise Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares of Common Stock issuable upon exercise of the Stock Warrants,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. Within 90 days after each fiscal year in which
any such adjustment shall have occurred, or within 30 days after any request
therefor by any holder of Stock Warrants stating that such holder contemplates
exercise of such Stock Warrants, the Company will obtain and deliver to each
holder of Stock Warrants the opinion of its regular independent auditors or
another firm of independent public accountants of recognized national standing
selected by the Company's Board of Directors who are satisfactory to the
registered holder of this Stock Warrant, which opinion shall confirm the
statements in the most recent Officers' Certificate delivered under this
paragraph 4(d).
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(e) OTHER NOTICES. In case at any time:
(i) the Company shall declare or pay to the holders of Capital Stock
any dividend other than a regular periodic cash dividend or any periodic
cash dividend in excess of 115% of the cash dividend for the comparable
fiscal period in the immediately preceding fiscal year;
(ii) the Company shall declare or pay any dividend upon Capital Stock
payable in stock or make any special dividend or other distribution (other
than regular cash dividends) to the holders of Capital Stock;
(iii) the Company shall offer for subscription pro rata to the
holders of Capital Stock any additional shares of stock of any class or
other rights;
(iv) there shall be any capital reorganization, or reclassification
of the Capital Stock of the Company, or consolidation or merger of the
Company with, or sale of all or substantially all of its assets to, another
corporation or other entity;
(v) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(vi) there shall be any other Transaction;
then, in any one or more of such cases, the Company shall give to the holder of
each Stock Warrant (a) at least 15 days prior to any event referred to in clause
(i) or (ii) above, at least 30 days prior to any event referred to in clause
(iii), (iv) or (v) above, and within five business days after it has knowledge
of any pending Transaction, written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or Transaction and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or Transaction known to the Company, at least 30 days
prior written notice of the date (or, if not then known, a reasonable
approximation thereof by the Company) when the same shall take place. Such
notice in accordance with the foregoing clause (a) shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of Capital Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (b) shall also specify the date on which
the holders of Capital Stock shall be entitled to exchange their Capital Stock
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up or Transaction, as the case may be. Such notice shall also state
that the action in question or the record date is subject to the effectiveness
of a registration statement under the Securities Act or to a favorable vote of
security holders, if either is required."
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3. Paragraph 15 of the Warrant No. ___ shall be amended to include
the following definitions:
"CONSUMMATION DATE" shall mean the date of the consummation of a
Transaction.
"TRANSACTION" shall mean any transaction to which the Company is a
party at any time (including, without limitation, a merger, consolidation, sale
of all or substantially all of the Company's assets, liquidation or
recapitalization of the Capital Stock) in which the previously outstanding
Capital Stock shall be changed into or exchanged for different securities of the
Company or common stock or other securities of another corporation or interests
in a noncorporate entity or other property (including cash) or any combination
of any of the foregoing or in which the Capital Stock ceases to be a publicly
traded security either listed on the New York Stock Exchange or the American
Stock Exchange or quoted by NASDAQ or any successor thereto or comparable
system.
4. Except as amended hereby, Warrant No. ___ is fully ratified and
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Warrant No. ___ this 11th day of December, 1996.
XXXXX & XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
Xxx X. Xxxxxxx Trust
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Trustee
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