Exhibit 4.27 - Form of Warrants granted to Noteholders and the Banking
institutions
WARRANT AGREEMENT
Dated as of June 5, 2001
Table of Contents
Page
i
CL: 593468v4
SECTION 1. Issuance of Warrants..................................1
SECTION 2. Warrant Certificates..................................2
SECTION 3. Registration..........................................2
SECTION 4. Transfer and Exchange of Warrants.....................2
SECTION 5. Legend................................................3
SECTION 6. Exercise of Warrants..................................4
SECTION 7. Payment of Taxes......................................5
SECTION 8. Mutilated or Missing Warrant Certificates.............5
SECTION 9. Reservation of Warrant Shares.........................5
SECTION 10. Adjustment of Exercise Price and Number of Warrant....6
SECTION 11. Fractional Interests.................................15
SECTION 12. Notices to Holders...................................15
SECTION 13. Notices to the Company and Holders...................16
SECTION 14. The Company's Representations and Warranties.........17
SECTION 15. Each Holder's Representations and Warranties.........17
SECTION 16. Regulatory Problems..................................18
SECTION 17. Other Agreements.....................................18
SECTION 18. Successors and Assigns...............................18
SECTION 19. Termination..........................................18
SECTION 20. Governing Law........................................18
SECTION 21. Jurisdiction and Venue...............................18
SECTION 22. Benefits of This Agreement...........................19
SECTION 23. Counterparts.........................................19
SECTION 24. Amendments and Waivers...............................19
SECTION 25. Severability of Provisions; Captions; Attachments....19
SECTION 26. Legal Representation of Parties......................19
SECTION 27. JURY TRIAL WAIVER....................................20
WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of June 5, 2001, is made by
and among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (the "Company") and
those other parties named on the signature pages hereto (each of them, and each
of their respective transferees, successors and assigns, a "Holder").
WHEREAS, pursuant to that Subordination Waiver and Consent
Agreement dated as of even date herewith, by and among the Company, the Holders,
the LIFO Agent, the LIFO Banks and the Collateral Agent (each as defined
therein) - (as the same may from time to time be amended, restated or otherwise
modified, the "Subordination Agreement"), the Company has agreed to issue a
total of up to seven hundred ten thousand four hundred thirty nine and 379/1000
(710,439.379) warrants (each a "Warrant") for the purchase of a total (subject
to adjustment as herein provided) of one (1) common share, without par value, of
the Company (each, a "Common Share"; and each Common Share issuable upon
exercise of a Warrant, a "Warrant Share"), and to enter into that registration
rights agreement of even date herewith and among the parties hereto (the
"Registration Rights Agreement") in order to induce the Holders to temporarily
waive certain defaults and consent to the Company entering into the LIFO Credit
Agreement (as defined in the Subordination Agreement).
WHEREAS, the Company and the Holders desire to set forth the terms and
conditions of the Warrants;
NOW, THEREFORE, in consideration of the premises, their mutual
covenants and undertakings, and other good and valuable considerations the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. .......Issuance of Warrants.
(a) On the date hereof, the Company shall issue to each Holder that number of
Warrants set forth next to such Holder's name on Schedule 1 hereto. The price at
which each Warrant issued pursuant to this subsection 1(a) (an "Initial
Warrant") shall be exercisable (the "Initial Warrant Exercise Price") shall be
eight dollars and eighty cents ($8.80), subject to adjustment as provided
herein.
(b) In addition to the Initial Warrants, if the maturity date under that Credit
Agreement, dated as of August 14, 1997, by and among the Company, the Holders
and the other parties thereto, as amended and as may from time to time be
further amended, restated or modified (the "Existing Credit Agreement"), is
extended to or beyond September 14, 2003, then, immediately upon the granting of
such extension (the date of such extension, the "Extension Date") the Company
shall issue to each of those Holders listed on Schedule 2 hereto (or their
respective transferees, successors and assigns) that number of Warrants set
forth next to such Holder's name on Schedule 2 in accordance with the terms and
conditions of the Subordination Agreement. The price at which each Warrant
issued pursuant to this subsection 1(b) (a "Supplemental Warrant") shall be
exercisable (the "Supplemental Warrant Exercise Price") shall be the Current
Market Value (defined below) of a Common Share on the Extension Date, subject to
adjustment as provided herein.
SECTION 2. .......Warrant Certificates. On the date hereof, in the case of every
Initial Warrant, and within ten (10) days of the Extension Date, in the case of
every Supplemental Warrant, the Company will issue and deliver a certificate or
certificates evidencing the Warrants (the "Warrant Certificates") to each Holder
for the specified number of Warrants. Each Warrant Certificate shall be in
registered form only and in substantially the form set forth as Exhibit A
attached hereto. Warrant Certificates shall be dated the date of issuance of the
underlying Warrants by the Company.
Warrant Certificates shall be signed on behalf of the Company
by its Chairman of the Board or its President or a Vice President. Each such
signature upon the Warrant Certificates may be in the form of a facsimile
signature of the present or any future Chairman of the Board, President or Vice
President, and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, President or
Vice President, notwithstanding the fact that at the time the Warrant
Certificates shall be delivered or disposed of he shall have ceased to hold such
office. Each Warrant Certificate shall also be manually signed on behalf of the
Company by its Secretary or an Assistant Secretary.
SECTION 3. .......Registration. The Company shall number and register the
Warrant Certificates in a register (the "Warrant Register") as they are issued.
The Company may deem and treat the registered holder of any Warrant Certificate,
as set forth in the Warrant Register, as the absolute owner in fact thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone) for all purposes and shall not be required to recognize any equitable or
other claim to or interest in any such Warrant on the part of any other person.
Each Warrant shall be registered initially in such name or names as the Holder
receiving the Warrant Certificate evidencing such Warrant shall designate.
SECTION 4. .......Transfer and Exchange of Warrants. No Holder shall make any
sale, transfer or other disposition of any Warrants except pursuant to an
effective registration statement for such securities under the Securities Act of
1933, as amended (the "Act") and any applicable state securities laws or an
exemption from the registration requirements of the Act. In the case of any
sale, transfer or other disposition other than pursuant to an effective
registration statement, the transferee shall upon the request of the Company
deliver an opinion of counsel (which may be the transferee's internal counsel)
reasonably satisfactory to the Company that registration is not required by the
Act. The Company shall from time to time at the request of a Holder register the
transfer of any outstanding Warrants upon the Warrant Register upon surrender of
the Warrant Certificate or Warrant Certificates evidencing such Warrants duly
endorsed or accompanied (if so required by the Company) by a written instrument
or instruments of transfer substantially in the form attached as Exhibit B
hereto duly executed by the registered Holder or Holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney. Subject
to the terms of this Agreement, each Warrant Certificate may be exchanged for
another Warrant Certificate or Warrant Certificates entitling the Holder thereof
to purchase a like aggregate number of Warrant Shares as the Warrant Certificate
or Warrant 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 substantially in the form attached as Exhibit B
hereto and delivered to the Company, and shall surrender, duly endorsed or
accompanied by a written instrument of transfer, the Warrant Certificate or
Warrant Certificates to be so exchanged. Upon registration of transfer, the
Company shall issue, sign and deliver a new Warrant Certificate or Warrant
Certificates to the person(s) entitled thereto. No service fee or other expense
shall be charged for any exchange or registration of transfer of a Warrant
Certificate or of Warrant Certificates, but the Company may require that Holder
make payment of a sum sufficient to cover any stamp tax or other tax or other
governmental charge that is imposed in connection with any such exchange or
registration of transfer. The terms "Warrant" and "Warrant Certificate" as used
herein shall include, respectively, any Warrant or Warrant Certificate into
which a Warrant or Warrant Certificate, as the case may be, may be divided or
exchanged.
At any time at which the Warrants held by any Holder that
qualifies as a "subsidiary" of a "bank holding company" (as such terms are
defined in Section 225.2 of Regulation Y issued by the Board of Governors of the
Federal Reserve System ("Regulation Y")) (a "BHC Subsidiary") would result in
such BHC Subsidiary owning or controlling 5% or more of the Company's Common
Shares (including after taking into consideration any rebuttable presumptions of
control contained in Section 225.31(d) of Regulation Y), no Warrant may be
transferred by such BHC Subsidiary, unless the BHC Subsidiary advises the
Company in writing (and in such case the Company shall thereupon notify each
Holder in writing) that the transfer will be made: (a) in a widely dispersed
public distribution; (b) to a person or group of persons that already had
"control" (as defined in Section 225.2 of Regulation Y) of the Company
immediately prior to the transfer to such person or group of persons; (c) in a
private sale to a person independent from and unrelated to the BHC Subsidiary in
which no person or group of persons acting in concert receives rights to acquire
more than 2% of the Company's outstanding Common Stock; (d) to a "broker" or
"dealer" (as those terms are defined in Section 3(a) of the Securities Exchange
Act of 1934, as amended) for the purpose of conducting a widely dispersed public
distribution; or (e) in a transaction which has been approved by the Board of
Governors of the Federal Reserve System or is otherwise not inconsistent with
Regulation Y or the Bank Holding Company Act of 1956, as amended.
SECTION 5. .......Legend.
Unless and until distributed pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the "Act")
or sold pursuant to Rule 144 promulgated thereunder (or any similar rule or
regulation), (a) each Warrant Certificate, and each certificate evidencing a
Warrant upon the transfer thereof shall bear the legend in the form affixed to
Exhibit A, and (b) each certificate for Warrant Shares initially issued upon the
exercise of a Warrant, and each certificate for Common Shares issued to any
subsequent transferee of any such certificate, shall bear the following legend
(subject to any appropriate modifications as any restrictions on transfer may
lapse):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND THEY MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER SUCH ACT."
SECTION 6. .......Exercise of Warrants. Subject to the terms of this Agreement,
each Holder shall have the right, which may be exercised at any time or from
time to time commencing on the date hereof until 5:00 p.m., New York time, until
June 3, 2005 (the "Exercise Period"), to receive from the Company 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 the Warrants
and payment of the Exercise Price then in effect for such Warrant Shares.
("Exercise Price" shall mean, in the case of each Initial Warrant, the Initial
Warrant Exercise Price and, in the case of each Supplemental Warrant, the
Supplemental Warrant Exercise Price, in each case subject to adjustment as
provided herein.) In the alternative, each Holder may exercise its right, during
the Exercise Period, to receive Warrant Shares on a net basis, such that,
without the exchange of any funds, the Holder receives that number of Warrant
Shares (and such other consideration) otherwise issuable (or payable) upon
exercise of its Warrants less that number of Warrant Shares having an aggregate
Current Market Value (defined below) at the time of exercise equal to the
aggregate Exercise Price that would otherwise have been paid by the Holder for
the Warrant Shares. Each Warrant not exercised during the Exercise Period 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.
A Warrant may be exercised upon surrender to the Company at
its office designated for such purpose (the address of which is set forth in
Section 13 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 the Company 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 the Company or in the manner provided in the
first paragraph of this Section 6.
Subject to the provisions of this Section 6, upon such
surrender of Warrants and payment of the Exercise Price, the Company shall issue
and cause to be delivered with all reasonable dispatch 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, if any, for
fractional Warrant Shares as provided in Section 11. Such certificate or
certificates 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 shall be exercisable during the Exercise Period
at the election of the Holder thereof, either in full or from time to time in
part (but if in part for a whole number of Warrant Shares only). 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 period to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued and delivered pursuant to the provisions of this
Section 6 and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled and disposed of by the Company. The Company 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.
SECTION 7. .......Payment of Taxes. The Company 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. The
Company 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 the Company, no such issuance or delivery
shall be made unless and until the person requesting such issuance has paid to
the Company the amount of any such tax or it is established to the reasonable
satisfaction of the Company that any such tax has been paid.
SECTION 8. .......Mutilated or Missing Warrant Certificates. If any Warrant
Certificate or certificate evidencing Warrant Shares shall be mutilated, lost,
stolen or destroyed, the Company shall issue, in exchange and substitution
therefor and upon cancellation of the mutilated Warrant Certificate or other
certificate, or in lieu of and substitution for the Warrant Certificate or other
certificate lost, stolen or destroyed, a new Warrant Certificate or other
certificate of like tenor and representing an equivalent number of Warrants or
Warrant Shares. In the case of a lost, stolen or destroyed certificate, the
Company may condition the issuance of a new certificate upon the receipt of a
lost warrant or lost share affidavit, ad shall include the indemnity of the
affiant Holder.
SECTION 9. Reservation of Warrant Shares. The Company shall at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Shares or its authorized and issued Common Shares
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 Shares which may then be deliverable upon the exercise of all
outstanding Warrants.
The Company or, if appointed, the transfer agent for the
Common Shares and each transfer agent for any class of the Company's Shares
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. The Company
shall keep a copy of this Agreement and each Warrant Certificate on file with
the Transfer Agent. The Company will supply the 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. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to each Holder pursuant
to Section 12.
Before taking any action which would cause an adjustment
pursuant to Section 10 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant Shares and other shares
issued upon exercise of the Warrants will, upon payment of the Exercise Price
therefor and issuance thereof, be validly authorized and issued, fully paid,
nonassessable, and free from all preemptive rights, taxes, liens, charges,
personal liability and security interests (other than those created by, or
resulting from actions taken by, the Holder).
SECTION 10. Adjustment of Exercise Price and Number of Warrant Shares Issuable.
The number of Common Shares issuable upon the exercise of each outstanding
Warrant (the "Warrant Number") is initially one (1). 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 10. Upon each
adjustment of the Warrant Number, the Exercise Price shall be adjusted to the
price determined by multiplying the Warrant Number immediately prior to such
adjustment by the Exercise Price in effect immediately prior to such adjustment
and dividing the product thereof by the Warrant Number resulting from such
adjustment.
(a) Share Dividends; Share Splits; Etc.
-----------------------------------
If the Company:
(1) pays a dividend or makes a distribution on its Common Shares in its
Common Shares;
(2) subdivides or reclassifies its outstanding Common Shares into a
greater number of Common Shares;
(3) combines or reclassifies its outstanding Common Shares into a smaller
number of Common Shares;
(4) pays a dividend or makes a distribution on its Common Shares of a
class other than Common Shares; or
(5) issues by reclassification of its Common Shares any shares of any
other class;
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 each class of the Company
which such holder 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.
Such adjustment shall be made successively whenever any event
listed above shall occur. If the occurrence of any event listed above results in
an adjustment under subsections 10(b) or 10(c) below, no further adjustment
shall be made under this subsection 10(a).
The Company shall not issue Common Shares as a dividend or
distribution on any class of shares other than Common Shares unless the Holders
also receive such dividend or distribution on a ratable basis.
(b) Adjustment for Rights Issue
If the Company distributes any rights, options or warrants
(whether or not immediately exercisable) to any holders of its Common Shares
entitling them to purchase Common Shares at a price per share less than the
Current Market Value (defined below) 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)))
W* = the adjusted Warrant Number.
W = the Warrant Number immediately prior to the record date
for any such distribution.
O = the number of Fully Diluted Shares (defined below)
outstanding on the record date for any such
distribution.
N = the number of additional Common Shares issuable
upon exercise of such rights, options or warrants.
P = the exercise price per share of such rights, options or
warrants.
M = the Current Market Value per Common Share 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 shareholders 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 Warrant 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) Evidence of Indebtedness; Other Assets
If the Company distributes to all holders of its Common Shares
(i) any evidences of indebtedness of the Company or any of its subsidiaries or
any other person, (ii) any assets (including cash dividends) of the Company or
any of its subsidiaries or any other person (other than any distribution of cash
or property which either individually or as part of a series of related
distributions constitutes a liquidating distribution of the Company to which the
provisions of subsection 10(m) apply), or (iii) any rights, options or warrants
to acquire any of the foregoing or to acquire any other securities of the
Company, 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 Current Market Value per Common Share on the record
date mentioned below.
F = the fair market value on the record date mentioned
below of the indebtedness, assets, rights, options or
warrants distributable to the holder of one Common
Share, provided, however, that for purposes of this
formula "F" shall in no event be greater than one
cent less than "M".
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 shareholders entitled to receive the distribution.
If an adjustment is made pursuant to this subsection 10(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 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 Common
Shares outstanding on the record date.
This subsection 10(c) does not apply to rights, options or warrants
referred to in subsection 10(b).
(d) Adjustment for Common Share Issue
If the Company issues Common Shares for a consideration per
share less than the Current Market Value per Common Share on the date the
Company 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.
A = the number of Fully Diluted Shares outstanding
immediately after the issuance of such additional
Common Shares.
O = the number of Fully Diluted Shares outstanding
immediately prior to the issuance of such additional
Common Shares.
P = the aggregate consideration received for the issuance of
such additional Common Shares.
M = the Current Market Value per Common Share on the
date of issuance of such additional shares.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
This subsection 10(d) does not apply to any of the
transactions described in subsection 10(a), to any issuance of any Common Shares
pursuant to rights, options or warrants (whether or not immediately exercisable)
granted in a distribution to which subsection 10(b) applied (or would have
applied but for the fact that such rights, options or warrants entitle their
holders to acquire Common Shares at a price equal to or greater than the Current
Market Value of Common Shares on the record date relating to such distribution)
or to any of the excepted issues and sales described in subsection 10(q).
(e) Adjustment for Convertible Securities Issue
If the Company issues any options, warrants or other
securities convertible into or exchangeable or exercisable for Common Shares
(other than the Warrants and securities issued in transactions described in
subsection 10(b) or 10(c)) for a consideration per Common Share initially
deliverable upon conversion, exchange or exercise of such securities less than
the Current Market Value per Common Share on the date of issuance of such
securities, the Warrant Number shall be adjusted in accordance with the formula:
W* = W x ((O + D) / (O + (P / M)))
where:
W* = the adjusted Warrant Number.
W = the Warrant Number immediately prior to the issuance.
O = the number of Fully Diluted Shares outstanding
immediately prior to the issuance of
such securities.
D = the maximum number of Common Shares deliverable
upon conversion or in exchange for or upon exercise
of such securities at the initial conversion,
exchange or exercise rate.
P = the aggregate consideration received for the issuance of
such securities.
M = the Current Market Value per Common Share on the date of
issuance of such securities.
The foregoing adjustments shall be made successively whenever
any such issuance is made, and shall become effective immediately after such
issuance.
If all of the Common Shares deliverable upon conversion,
exchange or exercise of the securities described in this subsection 10(e) has
not been issued when such securities are no longer outstanding, 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 the actual number of Common Shares issued upon conversion, exchange or
exercise of such securities.
(f) Adjustment for Repurchase of Common Shares or Rights
----------------------------------------------------
If the Company repurchases, redeems, retires or otherwise
acquires Common Shares or options, warrants or other securities convertible into
or exchangeable or exercisable for Common Shares (other than the Warrants as
contemplated hereby) for a consideration per Common Share greater than the
Current Market Value per Common Share on the date of repurchases, redemption,
retirement or acquisition (collectively "Acquisitions") of such securities, the
Warrant Number shall be adjusted in accordance with the formula:
W* = W x (A / (O - (R / M)))
where:
W* = the adjusted Warrant Number.
W = the Warrant Number immediately prior to any such
Acquisition.
A = the number of shares of Fully Diluted Shares
outstanding immediately after the Acquisition of such
securities.
O = the number of Fully Diluted Shares outstanding immediately prior to
the Acquisition of such securities.
R = the aggregate consideration paid for the Acquisition of
such securities.
M = the Current Market Value per Common Share on the
date of Acquisition of such securities.
(g) Certain Definitions
"Affiliate" shall mean, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Current Market Value" per Common Share or of any other
security of the Company or any of its Subsidiaries (herein collectively referred
to as a "Security") at any date shall be:
(1) if the Security is traded on a national securities exchange or on the
over-the-counter market, the average of the closing sales prices for
the thirty trading days immediately preceding such date or, on any
trading day for which there is no reported sale of such Security, the
average of the bid and asked prices on such day; provided, however,
that if the market price is described above is not determinable for at
least fifteen (15) trading days in such period, the Current Market
Value of the Security shall be determined as if the Security was not
traded on a national securities exchange or on the over-the-counter
market; or
(2) if the Security is not traded on a national securities exchange or on
the over-the-counter market (i) the value of the Security determined
in good faith by the Board of Directors of the Company and certified
in a board resolution, based on the most recently completed arm's
length transaction between the Company and a person other than an
Affiliate of the Company 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 transaction described
in clause (i) 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
clause (ii) is satisfied, by the Board of Directors of the Company,
unless the holders of a majority of the Warrants disagree with such
Board determination within ten days of notice thereof, in which case
the value of the Security determined as of such date by an Independent
Financial Expert; or
(3) notwithstanding the foregoing, if the Security is being issued in a
public offering, the "Current Market Value" shall be the offering
price to the public therefor;
provided, however, that for purposes of applying this Section 10 to any Warrant,
the Current Market Value of a Common Share shall in no event be less than the
Exercise Price for such Warrant, as adjusted from time to time in accordance
with this Agreement.
"Independent Financial Expert" shall mean a qualified
investment banking firm chosen by the Company and reasonably acceptable to the
Holders of a majority of the Warrants (i) that does not (and whose directors,
officers, employees and Affiliates do not) have a direct or indirect material
financial interest in the Company, (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 the Company, (iii) that has not been retained
by the Company 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 the Company, is otherwise qualified to serve as an
independent financial advisor. The value of a Security as determined by the
Independent Financial Expert shall be based upon an arm's length sale of the
Company (including its ownership interests in all persons) as an entirety on the
applicable date between a willing buyer and a willing seller, without reference
to any discount for minority interest, restrictions on transfer, disparate
voting rights among classes of equity or lack of marketability. Any compensation
and indemnification of the Independent Financial Expert shall be borne by the
Company.
(h) Consideration Paid or Received
For purposes of any computation respecting consideration paid
or received pursuant to subsections 10(d), 10(e) and 10(f), the following shall
apply:
(1) in the case of the issuance or Acquisition of Common Shares
for cash, the consideration shall be the amount of such cash,
provided, however, that in no case shall any deduction be made
for any commissions, discounts or other expenses incurred by
the Company for any underwriting of the issue or otherwise in
connection therewith;
(2) in the case of the issuance or Acquisition of Common Shares
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; and
(3) in the case of the issuance of options, warrants or other
securities convertible into or exchangeable or exercisable for
Common Shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the
additional minimum consideration, if any, to be received by
the Company 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
10(h)).
(i) Deferral of De Minimis Adjustment; Readjustment
No adjustment 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 adjustments that are not made shall be called forward and taken into
account in any subsequent adjustment, provided, however, that no such adjustment
shall be deferred beyond the date on which a Warrant is exercised.
All calculations under this Section 10 shall be made to the nearest
1/1000th of a share and the nearest cent.
If an adjustment is made upon the establishment of a record
date for a distribution subject to subsections 10(a), 10(b) or 10(c) and such
distribution is subsequently canceled, the Warrant Number then in effect shall
be readjusted, effective as of the date when the Board of Directors 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.
(j) Notice of Adjustment
Whenever the Warrant Number or Exercise Price is adjusted, the
Company shall provide the notices required by Section 12.
(k) Voluntary Reduction
The Company 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 thirty (30) days and if the reduction is irrevocable
during the period. Whenever the Exercise Price is reduced, the Company shall
mail to the Holders a notice of the reduction. The Company shall mail the notice
at least fifteen (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 10(k)
(other than a permanent reduction) does not change or adjust the Exercise Price
otherwise in effect for purposes of subsections 10(a), 10(b), 10(c), 10(d),
10(e) or 10(f).
(l) When Issuance or Payment May Be Deferred
In any case in which this Section 10 shall require that an
adjustment in the Warrant Number be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event (i) issuing to the Holder of any Warrant exercised after such record date
the Warrant Shares and other shares of the Company, if any, issuable upon such
exercise over and above the Warrant Shares and other shares of the Company, if
any, issuable upon such exercise on the basis of the Warrant Number prior to
such adjustment, and (ii) paying to such Holder any amount in cash in lieu of a
fractional share pursuant to Section 11; provided, however, that the Company
shall deliver to such Holder a due xxxx or other appropriate instrument
evidencing such Holder's right to receive such additional Warrant Shares, other
shares and cash upon the occurrence of the event requiring such adjustment.
(m) Reorganizations
In case of any capital reorganization, other than in the cases
referred to in subsections 10(a) through 10(f) hereof, inclusive, or the
consolidation or merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification of the outstanding
Common Shares into other shares or other securities or property), or the
liquidation of the Company or distribution or proceeds following a sale of the
property of the Company as an entirety or substantially as an entirety (any such
action, a "Reorganization"), there shall thereafter be deliverable upon exercise
of any Warrant (in lieu of the number of Common Shares theretofore deliverable)
the number of other shares or other securities, cash or other property to which
a holder of the number of Common Shares 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 the Company, whose
determination shall be described in a duly adopted resolution certified by the
Company'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.
The Company shall not effect any Reorganization unless prior
to or simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such Reorganization shall expressly
assume, by a supplemental Warrant Agreement or other acknowledgement executed
and delivered to the Holder(s), the obligation to deliver to each such Holder
such other shares, 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.
(n) 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 pursuant to
this Agreement.
(o) Adjustments in Other Securities
If as a result of any event or for any other reason, any
adjustment is made which increases the number of Common Shares issuable upon
conversion, exercise or exchange of, or in the conversion or exercise price or
exchange ratio applicable to, any outstanding securities of the Company that are
convertible into, or exercisable or exchangeable for, Common Shares, and such
adjustment would, if made upon the original issuance of such securities, have
resulted in any adjustment pursuant to this Section 10, then a corresponding
adjustment shall be made hereunder to increase the number of Common Shares
issuable upon exercise of the Warrants, but only to the extent that no such
adjustment has been made pursuant to subsections 10(a), 10(b), 10(c) or 10(d)
hereof with respect to such event or for such other reason.
(p) Miscellaneous
For purpose of this Section 10 the term "Common Shares" shall
mean (i) shares of any class designated as Common Shares of the Company at the
date of this Agreement, (ii) shares of any other class 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. For
purposes of this Section 10 the term "Fully Diluted Shares" shall mean (i)
Common Shares outstanding as of a specified date, and (ii) Common Shares into or
for which rights, options, warrants or other securities outstanding as of such
date are exercisable or convertible. In the event that at any time, as a result
of an adjustment made pursuant to this Section 10, the holders of Warrants shall
become entitled to purchase any securities of the Company other than, or in
addition to, Common Shares, 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 10(a) through 10(o), inclusive, and the provisions of this Agreement
with respect to the Warrant Shares or the Common Shares shall apply on like
terms to any such other securities.
(q) Excepted Issues and Sales
No adjustments pursuant to this Section 10 shall be made in
respect of the issuance of Common Shares upon (i) exercise of Warrants issued
pursuant to this Agreement, or (ii) the exercise of options outstanding on the
date hereof.
SECTION 11. Fractional Interests. 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 11, be issuable
on the exercise of all outstanding Warrants, the Company 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 12. Notices to Holders. Upon any adjustment pursuant to Section 10
hereof, the Company shall promptly thereafter (a) cause to be filed with the
Company a certificate of an officer of the Company 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 (b) cause to be given to each of the registered holders of the
Warrant Certificates at his or its address appearing on the Warrant register
written notice of such adjustments by first class mail, postage prepaid. 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 12.
In case:
(i) the Company shall authorize the issuance to all holders of Common
Shares of rights, options or warrants to subscribe for or purchase Common Shares
or of any other subscription rights or warrants; or
(ii) the Company shall authorize the distribution to all holders of Common
Shares of assets, including cash, evidences of its indebtedness, or other
securities; or
(iii) of any consolidation or merger to which the Company is party and for
which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common 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 a tender offer or exchange offer for Common
Shares; or
(iv) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
(v) the Company proposes to take any action that would require an
adjustment to the Warrant Number or the Exercise Price pursuant to Section 10;
then the Company shall cause to be given to each of the registered Holders of
the Warrant Certificates at his or 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, by first-class mail, postage prepaid, a written notice stating (i)
the date as of which the holders of record of Common Shares 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 Common Shares, 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 Common Shares 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. No such distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action, shall be affected unless and until such notice to the holders of
Warrant Certificates has been given in a timely manner.
Nothing contained in this Agreement or in any Warrant
Certificate shall be construed as conferring upon the Holders of Warrants (prior
to the exercise of such Warrants) the right to vote or to consent or to receive
notice as shareholders in respect of the meetings of shareholders or the
election of Directors of the Company or any other matter, or any rights
whatsoever as shareholders of the Company; provided, however, that nothing in
the foregoing provision is intended to detract from any rights explicitly
granted to any Holder hereunder.
SECTION 13. Notices to the Company and 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 the Company, to:
Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Secretary and General Counsel
Fax: (000) 000-0000
With a copy (except for routine communications) to:
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx LLP
0000 Xxxxxxxxxx Xxxxx, X.X.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Fax: (000) 000-0000
If to any Holder, to the address for it set forth on
the signature pages of the Subordination Agreement.
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 notice of such change in accordance herewith.
SECTION 14. The Company's Representations and Warranties. The Company hereby
represents and warrants to each of the Holders that (a) the Company has the
legal power and authority to execute and deliver this Agreement and to fully and
timely perform each of its obligations; (b) the officers executing this
Agreement have been duly authorized to execute and deliver the same and bind the
Company with respect to the provisions hereof; (c) the execution and delivery
hereof by the Company and the performance and observance by the Company of the
provisions hereof do not violate or conflict with the Articles of Incorporation
or Regulations of the Company or any law applicable to the Company or result in
a breach of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against the Company; (d) the
Company has authorized, issued and outstanding, and held in treasury,
respectively, that number of shares of each class as is set forth in the
Company's Form 10 Q for the Period Ended March 4, 2001; (e) Schedule 3 hereto
sets forth a true and complete list of all existing options, warrants,
convertible securities or any other rights of any person to acquire any equity
securities of the Company together, in each case, with a description of the
security(ies) such person has the right to acquire and the exercise or
conversion price required to be paid therefore, and (f) this Agreement
constitutes a valid and binding obligation of the Company in every respect,
enforceable in accordance with its terms.
SECTION 15. Each Holder's Representations and Warranties. Each of the Holders,
several and not jointly, represents and warrants to the Company that (a) such
Holder's Warrants are being acquired for the account of such Holder for
investment and not with a view to, or for resale in connection with, the
distribution thereof, (b) such Holder has no present intention of distributing
or reselling such Warrants, and (c) such Holder is an "accredited investor" as
such term in defined in Regulation D promulgated under the Act.
SECTION 16. Regulatory Problems. In the event of any determination by any Holder
(a "Regulated Holder") that, by reason of any existing or future federal or
state rule, regulation, guideline, order, request or directive (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) (collectively, a "Regulatory Requirement"), it is effectively
restricted or prohibited from holding any of the Warrants or the Warrant Shares
(including any shares or other securities distributable to such Regulated Holder
in any merger, reorganization, readjustment or other reclassification of
securities), the Company and the other Holders agree to use reasonable efforts
to take such action as reasonably necessary to permit such Regulated Holder to
comply with such Regulatory Requirement. Any expenses related to taking such
action will be borne by the Regulated Holder. Such action to be taken may
include, without limitation, the Company's authorization of one or more new
classes of capital stock and the modification or amendment of the articles of
incorporation or any other documents or instrument executed in connection with
the Warrants or other securities held by such Regulated Holder. Such Regulated
Holder shall give written notice to the Company and the other Holders of any
such determination and the action or actions necessary to comply with such
Regulatory Requirement, and the Company and such other Holders shall take all
steps reasonably necessary to comply with such determination as expeditiously as
possible including, without limitation, voting all shares of the Company owned
or controlled by them in favor of such action or actions. No Regulated Holder
may be required to transfer any Common Shares in violation of any Regulatory
Requirement.
SECTION 17. Other Agreements. This Agreement and the Warrant Certificates are
subject in their entirety to, and the Holders are entitled to
the benefits of the Registration Rights Agreement.
SECTION 18. Successors and Assigns. All the covenants and provisions of this
Agreement by or for the benefit of the Holders and the Company shall bind and
inure to the benefit of their respective successors and assigns; provided,
however, that the Company shall not assign any of its rights or delegate any of
its obligations hereunder without the prior written consent of the Purchaser.
SECTION 19. Termination. This Agreement shall terminate if all Warrants have
been exercised pursuant to this Agreement.
SECTION 20. Governing Law. This Agreement and each Warrant Certificate shall be
interpreted and enforcedin accordance with the laws of the State of Ohio without
regard to principles of conflicts of causes.
SECTION 21. Jurisdiction and Venue. All judicial proceedings arising out of or
relating to this Agreement or any obligation hereunder shall be brought in the
United States District Court for the Northern District of Ohio or in the Court
of Common Pleas, Cuyahoga County, Ohio, and by their respective execution and
delivery of this Agreement, the undersigned accept for themselves and in
connection with their properties, generally and unconditionally, the
jurisdiction of the aforesaid courts and waive any defense of forum
nonconveniens, and irrevocably agree to be bound by any judgment rendered
thereby in connection with this Agreement.
SECTION 22. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefits of the Company and
the Holders.
SECTION 23. Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile signature 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 24. Amendments and Waivers. No provision of this Agreement may be
amended or waived except by an instrument in writing signed by the party sought
to be bound. 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.
SECTION 25. Severability of Provisions; Captions; Attachments. Wherever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law. Any provision of this Agreement hat is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. The several captions
to Sections and subsections herein are inserted for convenience only and shall
be ignored in interpreting the provisions of this Agreement. Each schedule or
exhibit attached to this Agreement shall be incorporated herein and shall be
deemed to be a part hereof.
SECTION 26. Legal Representation of Parties. This Agreement was negotiated by
the parties with the benefit of legal representation and any rule of
construction or interpretation otherwise requiring this Agreement to be
construed or interpreted against any party shall not apply to any construction
or interpretation hereof or thereof.
SECTION 27. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED
BY LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM, OR ANY OF
THEM, ARISING OUT OF, IN CONNECTION WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized representative, as of the day
and year first above written.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
and /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK ONE INDIANA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
and /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
FIRSTAR BANK, N.A.
(fka STAR BANK, N.A.)
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP / Its attorney-in-fact
INTESABCI - CHICAGO BRANCH
(successor in interest to Banca
Comerciale Italiana)
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
and /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
UNICREDITO ITALIANO SPA
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
and /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SANPAOLO IMI S.p.A.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
and /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: General Manager
PRINCIPAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Counsel
and /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Counsel
NORTHWESTERN MUTUAL LIFE INSURANCE CO.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Its authorized representative
A-3
Exhibit A
[Form Of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS, AND THEY MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE TERMS AND
CONDITIONS OF A WARRANT AGREEMENT DATED AS OF JUNE 5, 2001, AS AMENDED FROM TIME
TO TIME, BY AND AMONG THE COMPANY AND THE HOLDERS SPECIFIED THEREIN, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER OR
OTHER DISPOSITION OF THE WARRANTS IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND
THE WARRANTS ARE TRANSFERABLE ONLY UPON PROOF OF SUCH COMPLIANCE THEREWITH.
EXERCISABLE ON OR BEFORE 5:30 P.M.,
NEW YORK TIME, JUNE 4, 2005
Warrants to Purchase ___
Common Shares
No. W-__________
WARRANT CERTIFICATE
This Warrant Certificate certifies that
________________________, or registered assigns, is the registered holder of
__________ Warrants, each Warrant to purchase initially, at any time from the
date hereof until 5:30 p.m. New York time on June 4, 2005 ("Expiration Date"),
one (1) fully-paid and non-assessable Common Share, no par value, ("Common
Share"), of Amcast Industrial Corporation, an Ohio corporation (the "Company"),
at the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of [$_____] per Common Share upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to conditions set forth herein and in the Warrant Agreement
dated as of June 5, 2001 by and among the Company, and the Holders, as amended
from time to time in accordance with its terms (the "Warrant Agreement").
Payment of the Exercise Price shall be made payable to the order of the Company
and by surrender of this Warrant Certificate.
No Warrant may be exercised after 5:30 p.m., New York time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the Holders (the words "Holders" and "Holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the Holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the Holder as set forth in the Warrant Agreement.
The holders of the Warrants are entitled to certain
registration rights with respect to the Common Share issuable upon the exercise
thereof. Said registration rights are set forth in a registration rights
agreement dated as of June 5, 2001, by and among the Company and the Holders
(the "Registration Rights Agreement"). By acceptance of this Warrant
Certificate, the holder hereof agrees that upon exercise of some of all of the
Warrants evidenced hereby, he or it will be bound by the Registration Rights
Agreement as a holder of Registrable Securities thereunder. A copy of the
Registration Rights Agreement may be obtained by the holder hereof upon written
request to the Company.
Upon due presentation for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without an charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced
by this Warrant Certificate, the Company shall forthwith issue to the Holder
hereof a new Warrant Certificate representing such numbered unexercised Warrants
pursuant to the terms of the Warrant Agreement.
The Company may deem and treat the registered Holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the Holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary. Neither the Warrant nor this Warrant Certificate entitles any holder
hereof to any rights of a shareholder of the Company.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement, a copy of which may be obtained by the holder hereof upon written
request to the Company.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized representative, as of the day
and year first above written.
AMCAST INDUSTRIAL CORPORATION
By:_______________________
Name:
Its:
Accepted as of June 5, 2001:
[ _________ ]
----------------------------------------------------
Name of Holder
_________
-----------------------------------------------------
By: _________
--------------------------------------------------
Its: _________
-------------------------------------------------
B-1
Exhibit B
Form of Election To Purchase
To: Amcast Industrial Corporation
_________ 0000 Xxxxxxxxxx Xxxxxxx Xxxxx
_________ Xxxxxx, Xxxx 00000
_________ Attention: Secretary
1. The undersigned, pursuant to the provisions of the attached
Warrant Agreement, hereby elects to exercise this Warrant with respect to ____
Warrant Shares (the "Exercise Amount"). Capitalized terms used by not otherwise
defined herein have the meanings assigned thereto in the attached Warrant.
2. The undersigned herewith tenders payment for such shares in
the following manner (please check type, or types, of payment and indicate the
portion of the Exercise Price to be paid by each type of payment):
____ Exercise for Cash
_____________ Cashless Exercise (as provided in Section 6 of
the Warrant Agreement)
3. Please issue a certificate or certificates (if any)
representing the Warrant Shares issuable in respect hereof under the terms of
the attached Warrant, as follows:
--------------------------------------
(Name of Record Holder/Transferee)
and deliver such certificate or certificate (if any) to the following address:
--------------------------------------
(Address of Record Holder/Transferee)
4. The undersigned represents that the aforesaid Warrant
Shares are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or reselling
such shares.
5. The undersigned is an "accredited investor" as such
term in defined in a Regulation promulgated under the Securities Act of 1933,
as amended.
6. If the Exercise Amount is less than all of the Warrant
Shares purchasable hereunder, please issue a new warrant representing the
remaining balance of such Warrant Shares, as follows:
-------------------------------------
(Name of Record Holder/Transferee)
and deliver such warrant to the following address:
-------------------------------------
(Address of Record Holder/Transferee)
----------------------------
(Signature of Holder)
(Date)
Schedule 1
Recipients Of Initial Warrants
Name of Holder Number of Initial Warrant
Bank One Indiana, NA 50,119.6778
The Bank of New York 11,137.7062
Comerica Bank 19,490.9858
Credit Agricole Indosuez 22,275.4123
Unicredito Italiano SPA 11,137.7062
Firstar Bank, N.A. 46,340.9783
Intesabci-Chicago Branch 11,137.7062
KeyBank National Association 52,950.8247
National City Bank 19,490.9858
San Paolo IMI, SPA 11,137.7062
The Northwestern Mutual Life Insurance 100,000.0000
Company
Principal Life Insurance Company 100,000.0000
Schedule 2
Recipients of Supplemental Warrants
Name of Holder Number of Initial Warrant
Bank One Indiana, NA 50,119.6778
The Bank of New York 11,137.7062
Comerica Bank 19,490.9858
Credit Agricole Indosuez 22,275.4123
Unicredito Italiano SPA 11,137.7062
Firstar Bank, N.A. 46,340.9783
Intesabci-Chicago Branch 11,137.7062
KeyBank National Association 52,950.8247
National City Bank 19,490.9858
San Paolo IMI, SPA 11,137.7062
The Northwestern Mutual Life Insurance 0
Company
Principal Life Insurance Company 0
Schedule 3
List of Existing Options, Etc.
The following options are outstanding on the date hereof:
647,792 options to acquire Common Shares with exercise prices averaging
$18.36 per Common Share;
350,000 options to acquire Common Shares at $8.80 per Common Share;
76,000 options to acquire Common Shares at $12.00 per Common Share; and
30,000 options to acquire Common Shares at $9.60 per Common Share.
Defined Terms
Page
accredited investor.................................18
Acquisitions........................................10
Act...............................................2, 3
ACT...............................................3, 1
Affiliate...........................................11
BHC Subsidiary.......................................3
Common Share.........................................1
Common Shares....................................15, 1
Company..............................................1
control.............................................11
controlled..........................................11
controlling.........................................11
Current Market Value................................11
Exercise Amount......................................1
Exercise Period......................................4
Exercise Price....................................4, 1
Existing Credit Agreement............................1
Expiration Date......................................1
Extension Date.......................................1
Fully Diluted Shares................................15
Holder...............................................1
Independent Financial Expert........................12
Initial Warrant......................................1
Initial Warrant Exercise Price.......................1
Registration Rights Agreement.....................1, 2
Regulated Holder....................................18
Regulation Y.........................................3
Regulatory Requirement..............................18
Reorganization......................................14
Security............................................11
Subordination Agreement..............................1
Supplemental Warrant.................................1
Supplemental Warrant Exercise Price..................2
Transfer Agent.......................................5
Warrant...........................................1, 3
Warrant Agreement....................................1
Warrant Certificate..................................3
Warrant Certificates.................................2
Warrant Number.......................................6
Warrant Register.....................................2
Warrant Share........................................1
