EXHIBIT 4.16
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is made as of
April 27, 2001, by and between Golder, Thoma, Xxxxxxx, Xxxxxx
Fund IV, L.P., a Delaware limited partnership (the "Lender" or
"GTCR"), and U.S. Aggregates, Inc., a Delaware corporation (the
"Company"). Capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms in Section 4A
hereof.
WHEREAS, the Company and the Lender have entered into a
Junior Subordinated Loan Agreement, dated as of the date hereof
(as the same shall be modified, amended and supplemented from
time to time, the "Loan Agreement");
WHEREAS, pursuant to the Loan Agreement, the Lender
will make a loan to the Company on the date hereof in an
aggregate principal amount of $2,000,000 (the "Loan");
WHEREAS, as an inducement and partial consideration to
the Lender to enter into the Loan Agreement and to make the Loan,
the Company has agreed to issue to the Lender on the date hereof
a warrant (the "Common Warrant") representing the right to
purchase the Common Warrant Shares from the Company, pursuant to
the terms and conditions of this Agreement and in the form of
Exhibit A attached hereto; and
WHEREAS, the Company has authorized the issuance of the
Common Warrant to the Lender pursuant to the terms and conditions
of this Agreement and the Common Warrant.
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Issuance of Common Warrant; Closing.
1A. Closing. The issuance of the Common Warrant to
the Lender (the "Closing") shall take place simultaneously with
the closing of the Loan pursuant to the Loan Agreement. The date
of the Closing is hereinafter referred to as the "Closing Date."
1B. Issuance of the Common Warrant. At the Closing,
the Company shall issue to the Lender the Common Warrant
representing the right to purchase the Common Warrant Shares.
The Common Warrant shall be exercisable immediately upon issuance
thereof, and the Lender may exercise all or any portion of the
Common Warrant at any time and from time to time thereafter in
accordance with such Common Warrant.
SECTION 2. Representations and Warranties of the
Company. As of the Closing, the Company represents and warrants
to the Lender as follows:
2A. Good Standing. The Company is a corporation duly
formed, validly existing and in good standing under the laws of
the State of Delaware.
2B. Authority Relative to this Agreement. The Company
has all requisite corporate power and authority to enter into and
perform this Agreement and to issue and deliver the Common
Warrant to the Lender. The execution, delivery and performance
by the Company of this Agreement, including the issuance and
delivery of the Common Warrant to the Lender, have been duly
authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by
the Company and is a legal, valid and binding obligation of the
Company and is enforceable against the Company in accordance with
its terms (except as may be limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights).
2C. No Conflict or Violation. The execution and
delivery of this Agreement by the Company, the performance by the
Company of its obligations hereunder and the issuance and
delivery of the Common Warrant to the Lender does not and will
not conflict with or result in a violation of (i) the certificate
of incorporation of the Company or (ii) any agreement,
instrument, law, rule, regulation, order, writ, judgment or
decree to which the Company is a party or is subject, except for
such conflicts and violations which will not, individually or in
the aggregate, have a material adverse effect on the business,
operations, assets or condition (financial or otherwise) or
business of the Company and will not deprive the Lender of any
material benefit under this Agreement.
2D. Validity of Issuance. The Common Warrant to be
issued to the Lender pursuant to this Agreement and the Warrant
Shares issued upon exercise of the Common Warrant will, when
issued, be duly and validly issued, fully paid and
non-assessable, and free and clear of all liens, claims and
encumbrances.
SECTION 3. Investment Representations; Legends.
3A. Investment Representations. The Lender hereby
represents and warrants to the Company that the Lender is
acquiring the Common Warrant, and to the extent any such Common
Warrant has been exercised, the Warrant Shares, for its own
account and not with a view to, or for resale in connection with,
the distribution or other disposition thereof. The Lender agrees
and acknowledges that it will not, directly or indirectly, offer,
transfer or sell the Common Warrant or any Warrant Shares, or
solicit any offers to purchase or acquire the Common Warrant or
any Warrant Shares, unless the transfer or sale is (i) pursuant
to an effective registration statement under the Securities Act
of 1933, as amended, and the rules and regulations thereunder
(the "Securities Act") and has been registered under any
applicable state securities or "blue sky" laws or (ii) pursuant
to an exemption from registration under the Securities Act and
all applicable state securities or "blue sky" laws.
3B. Additional Investment Representations. The Lender
hereby represents and warrants to the Company that (i) it has
such knowledge and experience in financial and business matters
so as to be capable of evaluating the merits and risks of its
investment hereunder, (ii) it is able to incur a complete loss of
such investment, (iii) it is able to bear the economic risk of
such investment for an indefinite period of time and (iv) it is
an "accredited investor" as that term is defined in Regulation D
under the Securities Act.
3C. Legend. The Lender hereby acknowledges that the
Company will stamp or otherwise imprint the Common Warrant with a
legend in substantially the following form:
THIS WARRANT AND ANY SECURITIES OBTAINABLE
UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE'S
SECURITIES LAWS AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION UNDER THE
SECURITIES ACT OR PURSUANT TO AN EXEMPTION
THEREFROM.
In connection with the transfer of the Common Warrant
or any Warrant Shares (other than a transfer pursuant to a public
offering registered under the Securities Act, pursuant to Rule
144 or Rule 144A promulgated under the Securities Act (or any
similar rules then in effect) or to an affiliate of the Lender),
the Lender shall deliver, upon the reasonable request of the
Company, an opinion of counsel, which counsel shall be
knowledgeable in securities laws and which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer may be effected without registration under the
Securities Act. Upon receipt of an opinion of counsel reasonably
satisfactory to the Company to the effect that such legend no
longer applies to the Common Warrant and/or any particular
Warrant Shares, the Company shall promptly issue a replacement
Common Warrant and/or replacement certificate evidencing such
Warrant Shares (as applicable), which does not contain such
legend.
In addition, the Lender hereby acknowledges that, so
long as any particular Warrant Shares remain Stockholder Shares
(as defined in the Stockholders Agreement), the Company will
stamp or otherwise imprint the Common Warrant and/or certificate
evidencing such Warrant Shares with a legend in substantially the
following form:
THIS WARRANT AND ANY SECURITIES OBTAINABLE UPON ITS
EXERCISE ARE SUBJECT TO CERTAIN RESTRICTIONS PURSUANT
TO A STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 24,
1994 (AS AMENDED AND MODIFIED FROM TIME TO TIME), AMONG
THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND
CERTAIN OF THE COMPANY'S STOCKHOLDERS. A COPY OF SUCH
STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
Upon any Warrant Shares ceasing to be Stockholder
Shares (as defined in the Stockholders Agreement) in accordance
with the terms of the Stockholders Agreement, the Company shall
promptly remove the legend set forth immediately above from the
Common Warrant and/or certificate evidencing such Warrant Shares.
SECTION 4. Miscellaneous
4A. Definitions. For the purposes of this Agreement, the
following terms shall have the following meanings:
"Common Share" means the Company's Common Stock, par
value $0.01 per share.
"Common Warrant Shares" means 435,469 of Common Shares
obtained or obtainable upon exercise of the Common Warrant, as
such amount of Common Shares shall be adjusted from time to time
in accordance with Section 2 of the Common Warrant.
"Stockholders Agreement" means that certain
Stockholders Agreement, dated as of January 24, 1994 (as amended
or modified from time to time), among the Company and certain of
its stockholders.
"Warrant Shares" means the Common Warrant Shares then
outstanding.
4B. Notices. All notices and other communications
provided for herein shall be dated and in writing and shall be
deemed to have been duly given (i) when delivered, if delivered
personally, sent by registered or certified mail, return receipt
requested and postage prepaid, or sent via nationally recognized
overnight courier or via facsimile with confirmation of receipt
and (ii) when received if delivered otherwise, to the party to
whom it is directed:
If to the Company:
U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
If to the Lender:
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
or to such other address as any party hereto shall have provided
in a written notice to the others.
4C. Assignment. This Agreement and all the provisions
hereof shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns, except that neither this Agreement nor any rights or
obligations hereunder shall be assigned by the Company without
the prior written consent of the Lender.
4D. Amendment. This Agreement may be amended only by
a written instrument signed by the Company and the holders of a
majority of the Warrant Shares.
4E. Waiver. Any party hereto may (a) extend the time
for the performance of any of the obligations or other acts of
the other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with
any of the agreements or conditions herein. Any agreement on the
part of a party hereto to any such extension or waiver shall only
be valid as to such party if set forth in an instrument in
writing signed by such party.
4F. Severability. In the event that any one or more
of the provisions hereof, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired; it being
intended that all rights, powers and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by
law.
4G. Governing Law. All questions concerning the con-
struction, validity and interpretation of this Agreement shall be
governed by and construed in accordance with the internal laws of
the State of Delaware, without giving effect to any choice of law
or other conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State
of Delaware.
4H. Counterparts. This Agreement may be executed in
two or more counterparts (including by means of facsimile), each
of which when so executed and delivered shall be deemed to be an
original and all of which together shall be deemed to be one and
the same agreement.
4I. Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of the terms contained
herein.
4J. Survival of Representations and Warranties. All
representations and warranties made in writing by any party in
connection herewith shall survive the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby, regardless of any investigation made by the
Lender or on its behalf.
4K. Purchase Price for Common Warrant. The Company and
the Lender hereby agree that for purposes of Sections 1271
through 1275 of the Internal Revenue Code of 1986, as amended (or
any successor statute), the aggregate original purchase price of
the Common Warrant is an amount to be mutually determined by the
Company and the Lender by December 31, 2001.
4L. Entire Agreement. Except as otherwise expressly
set forth herein, this Agreement, the Loan Agreement and the
Common Warrant embody the complete agreement and understanding
among the parties hereto with respect to the subject matter
hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or
oral, which may have related to the subject matter hereof in any
way.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant Agreement to be signed by its duly authorized officers as
of the date first written above.
U.S. AGGREGATES, INC.
By: /s/ Xxxxx X. Xxxxxx
___________________________________
Its: Chief Executive Officer
___________________________________
GOLDER, THOMA, XXXXXXX, XXXXXX FUND
IV, L.P.
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey,
Rauner, Inc.
Its: General Partner
By: Xxxxx X. Xxxxxxx
___________________________________
Its: Principal
Exhibit A
THIS WARRANT AND ANY SECURITIES OBTAINABLE UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE'S SECURITIES LAWS AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OR
PURSUANT TO AN EXEMPTION THEREFROM.
THIS WARRANT AND ANY SECURITIES OBTAINABLE UPON ITS
EXERCISE ARE SUBJECT TO CERTAIN RESTRICTIONS PURSUANT
TO A STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 24,
1994 (AS AMENDED AND MODIFIED FROM TIME TO TIME), AMONG
THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND
CERTAIN OF THE COMPANY'S STOCKHOLDERS. A COPY OF SUCH
STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
U.S. AGGREGATES, INC.
STOCK PURCHASE WARRANT
Date of Issuance: April 27, 2001 Certificate No. CW-___
FOR VALUE RECEIVED, U.S. Aggregates, Inc., a Delaware
corporation (the "Company"), hereby grants to Golder, Thoma,
Cressey, Rauner, Fund IV, L.P. ("GTCR"), or its registered
assigns (the "Registered Holder") the right to purchase from the
Company, at any time or from time to time during the Exercise
Period (as defined in Section 1A below), up to 435,469 shares (as
such amount of shares shall be adjusted from time to time in
accordance with Section 2 hereof) of the Company's Common Stock,
par value $0.01 per share (the "Common Stock"), at a per share
purchase price equal to the "Exercise Price" (as defined in
Section 5 below). This Warrant is issued pursuant to the terms
of that certain Warrant Agreement, dated as of April 27, 2001 (as
amended and modified from time to time), between the Company and
GTCR (the "Warrant Agreement") and is one of the "Warrants"
described therein. Certain capitalized terms used herein and not
otherwise defined are defined in Section 5 hereof. Any
capitalized terms used in this Warrant but not defined herein
shall have the meaning ascribed to such term in the Warrant
Agreement. The amount and kind of securities obtainable pursuant
to the rights granted hereunder and the purchase price to be paid
for such securities are subject to adjustment pursuant to the
provisions contained in this Warrant.
For income tax purposes, the value of this Warrant on
the date hereof is its aggregate original purchase price set
forth in the Warrant Agreement.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1A. Exercise Period. The Registered Holder may
exercise, in whole or part, the purchase rights represented by
this Warrant at any time and from time to time after the Date of
Issuance hereof and prior to the tenth anniversary thereof (the
"Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been
exercised when the Company has received all of the following
items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described
in Section 1C below, executed by the Person exercising all
or any portion of the purchase rights represented by this
Warrant (the "Purchaser");
(b) this Warrant; and
(c) if this Warrant is not registered in the name
of the Purchaser, an Assignment or Assignments in the form
set forth in Exhibit II hereto evidencing the assignment of
this Warrant to the Purchaser, in which case the Registered
Holder shall have complied with the provisions set forth in
Section 7 hereof.
(ii) Certificates evidencing the Warrant Shares
purchased upon exercise of all or any portion of this Warrant
shall be delivered by the Company to the Purchaser within five
business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented
hereby have been exercised, the Company shall prepare a new
Warrant, substantially identical hereto, representing the rights
formerly represented by this Warrant which have not expired or
been exercised and shall, within such five-day period, deliver
such new Warrant to the Person designated for delivery in the
Exercise Agreement.
(iii) The Warrant Shares issuable upon the exercise of
this Warrant shall be deemed to have been issued to the Purchaser
at the Exercise Time, and the Purchaser shall be deemed for all
purposes to have become the record holder of such Warrant Shares
at the Exercise Time.
(iv) The issuance of certificates evidencing Warrant
Shares upon exercise of this Warrant shall be made without charge
to the Registered Holder or the Purchaser for any issuance tax in
respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of Warrant
Shares. Each Warrant Share issuable upon exercise of this
Warrant shall be duly authorized, validly issued, fully paid and
non-assessable and free from all liens and charges with respect
to the issuance thereof.
(v) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Share issued or
issuable upon the exercise of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
(vi) The Company shall assist and cooperate with any
Registered Holder or Purchaser required to make any governmental
filings or obtain any governmental approvals prior to or in
connection with any exercise of this Warrant (including, without
limitation, making any filings required to be made by the
Company).
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in
connection with a registered public offering or the sale of the
Company (whether by merger, sale of stock or otherwise), the
exercise of any portion of this Warrant may, at the election of
the holder hereof, be conditioned upon the consummation of the
public offering or the sale of the Company in which case such
exercise shall not be deemed to be effective until the
consummation of such transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized capital equity the amount of
shares of its Common Stock issuable upon the exercise of this
Warrant solely for the purpose of issuance upon the exercise of
this Warrant. The Company shall take all such actions as may be
necessary to assure that all such Warrant Shares may be so issued
without violation of any applicable law or governmental
regulation or any requirements of any domestic securities
exchange upon which the Warrant Shares may be listed (except for
official notice of issuance which shall be immediately delivered
by the Company upon each such issuance). The Company shall not
take any action which would cause the number of authorized but
unissued shares of its Common Stock to be less than the number of
such shares required to be reserved hereunder for issuance upon
exercise of this Warrant.
1C. Exercise Agreement. Upon any exercise of
this Warrant, a completed Exercise Agreement substantially in the
form of Exhibit I attached hereto, executed by the Person
exercising all or any portion of the purchase rights represented
by this Warrant, shall be delivered to the Company; provided that
if the Warrant Shares are to be issued to a Person other than the
Person whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the
certificates evidencing the Warrant Shares are to be issued;
provided further, if the number of Warrant Shares to be issued
does not include all the Warrant Shares obtainable hereunder, the
Exercise Agreement shall also state the name of the Person to
whom a new Warrant for the unexercised portion of the rights
hereunder is to be delivered. Such Exercise Agreement shall be
dated the actual date of execution thereof.
Section 2. Adjustment of Exercise Price and Number
of Shares. In order to prevent dilution of the rights granted
under this Warrant, the Exercise Price and the number of Warrant
Shares obtainable upon exercise of this Warrant shall each be
subject to adjustment from time to time as provided in this
Section 2.
2A. Adjustment of Number of Shares upon
Issuance of Common Stock. If and whenever on or after the
Date of Issuance of this Warrant, the Company issues or
sells, or in accordance with Section 2B is deemed to have
issued or sold, any shares of Common Stock, for a
consideration per share less than the Fair Market Value of a
share of the Common Stock determined immediately prior to
such issuance or sale, then immediately upon such issuance
or sale the number of shares of Warrant Stock acquirable
upon exercise of this Warrant shall be adjusted to the
number of shares determined by multiplying the number of
shares of Warrant Stock acquirable upon exercise of this
Warrant immediately prior to such issuance or sale by a
fraction, the numerator of which will be the product derived
by multiplying the Fair Market Value of the Common Stock,
determined immediately prior to the date of such issuance,
times the number of shares of Common Stock Deemed
Outstanding immediately after such issuance or sale, and the
denominator of which will be the sum of (1) the number of
shares of Common Stock Deemed Outstanding immediately prior
to such issuance or sale multiplied by the Fair Market Value
of the Common Stock determined immediately prior to the date
of such issuance or sale, plus (2) the consideration, if
any, received by the Company upon such issuance or sale.
2B. Effect of Certain Events. For purposes of
determining under Section 2A the adjusted number of shares of
Warrant Stock acquirable upon exercise of this Warrant, the fol-
lowing shall be applicable:
(a) Issuance of Rights or Options. If the
Company in any manner issues, grants or sells (or otherwise
becomes subject to) any Options (including Options to
acquire Convertible Securities) and the price per share for
which Common Stock is issuable upon the exercise of such
Options or upon conversion or exchange of such Convertible
Securities is less than the Fair Market Value of the Common
Stock determined as of such time, then the total maximum
number of shares of Common Stock issuable upon the exercise
of such Options or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable upon
the exercise of such Options shall be deemed to be
outstanding and to have been issued and sold by the Company
for such price per share. For purposes of this paragraph,
the "price per share for which Common Stock is issuable upon
exercise of such Options or upon conversion or exchange of
such Convertible Securities" is determined by dividing (A)
the total amount, if any, received or receivable by the
Company as consideration for the granting or sale of such
Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of
all such Options, plus in the case of such Options which
relate to Convertible Securities, the minimum aggregate
amount of additional consideration, if any, payable to the
Company upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (B)
the total maximum number of shares of Common Stock issuable
upon exercise of such Options or upon the conversion or
exchange of all such Convertible Securities issuable upon
the exercise of such Options.
(b) Issuance of Convertible Securities. If the
Company in any manner grants, issues or sells (or otherwise
becomes subject to) any Convertible Securities and the price
per share for which Common Stock is issuable upon such
conversion or exchange is less than the Fair Market Value of
the Common Stock determined as of such time, then the
maximum number of shares of Common Stock issuable upon
conversion or exchange of such Convertible Securities shall
be deemed to be outstanding and to have been issued and sold
by the Company for such price per share. For the purposes
of this paragraph, the "price per share for which Common
Stock is issuable upon such conversion or exchange" is
determined by dividing (A) the total amount received or
receivable by the Company as consideration for the issuance
or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any,
payable to the Company upon the conversion or exchange
thereof, by (B) the total maximum number of shares of Common
Stock issuable upon the conversion or exchange of all such
Convertible Securities.
(c) Change in Option Price or Conversion Rate.
If the purchase price provided for in any Options, the
additional consideration, if any, payable upon the issuance,
conversion or exchange of any Convertible Securities, or the
rate at which any Convertible Securities are convertible
into or exchangeable for Common Stock change (by their terms
or by amendment, waiver or otherwise) at any time, the
number of shares of Warrant Stock acquirable upon exercise
of this Warrant shall be adjusted immediately, subject to
the proviso of the following sentence, to the number of
shares that would have been in effect at such time had such
Options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
changed conversion rate, as the case may be, at the time
initially granted, issued or sold. For purposes of this
paragraph 2B, if the terms of any Option or Convertible
Security which was outstanding as of the Date of Issuance of
this Warrant are changed in the manner described in the
immediately preceding sentence, then such Option or
Convertible Security and the Common Stock deemed issuable
upon exercise, conversion or exchange thereof shall be
deemed to have been issued as of the date of such change;
provided that no change shall at any time cause the number
of shares of Warrant Stock acquirable upon exercise of this
Warrant to decrease.
(d) Treatment of Expired Options and Unexercised
Convertible Securities. Upon the expiration of any Option
or the termination of any right to convert or exchange any
Convertible Securities without the exercise of such Option
or right, the number of shares of Warrant Stock acquirable
hereunder shall be adjusted to the number of shares which
would have been in effect at the time of such expiration or
termination had such Option or Convertible Securities, to
the extent outstanding immediately prior to such expiration
or termination, never been issued; provided that if such
expiration or termination would result in a reduction in the
number of shares of Warrant Stock acquirable upon exercise
of this Warrant then in effect, such decrease shall not be
effective until 30 days after written notice thereof has
been given by the Company to all holders of the Warrants.
For purposes of this paragraph 2B, the expiration or
termination of any Option or Convertible Security which was
outstanding as of the Date of Issuance of this Warrant shall
not cause the number of shares of Warrant Stock acquirable
upon exercise of this Warrant hereunder to be adjusted
unless, and only to the extent that, a change in the terms
of such Option or Convertible Security subsequent to the
Date of Issuance of this Warrant caused it to be deemed to
have been issued after the Date of Issuance of this Warrant.
(e) Calculation of Consideration Received. If
any Common Stock, Options or Convertible Securities are
issued or sold or deemed to have been issued or sold for
cash, the consideration received therefor shall be deemed to
be the net amount of cash received by the Company therefor.
In case any Common Stock, Options or Convertible Securities
are issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by the
Company shall be the fair value of such consideration,
except where such consideration consists of securities, in
which case the amount of consideration received by the
Company shall be the Fair Market Value thereof as of the
date of receipt. In case any Common Stock, Options or
Convertible Securities are issued to the owners of the non-
surviving entity in connection with any merger in which the
Company is the surviving entity, the amount of consideration
therefor shall be deemed to be the fair value of such
portion of the net assets and business of the non-surviving
entity as is attributable to such Common Stock, Options or
Convertible Securities, as the case may be. The fair value
of any consideration other than cash or securities shall be
determined jointly by the Company and the Majority Warrant
Holders. If such parties are unable to reach agreement
within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company
and the Majority Warrant Holders. The determination of such
appraiser shall be final and binding on the Company and the
holders of Underlying Common Stock and the fees and expenses
of such appraiser shall be paid by the Company.
(f) Integrated Transactions. In case any Option
or Convertible Security is issued in connection with the
issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific
consideration is allocated to such Options or Convertible
Securities by the parties thereto, such Options or
Convertible Securities, as applicable, will be deemed to
have been issued without consideration.
(g) Treasury Shares. The number of shares of
Common Stock outstanding at any given time does not include
shares owned or held by or for the account of the Company or
any Subsidiary, and the disposition of any shares so owned
or held shall be considered an issuance or sale of Common
Stock for all purposes of this Warrant.
(h) Record Date. If the Company takes a record
of the holders of Common Stock for the purpose of entitling
them (A) to receive a dividend or other distribution payable
in Common Stock, Options or in Convertible Securities or (B)
to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be
deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other
distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
2C. Subdivision or Combination of Stock. If the
Company at any time subdivides (by any stock split, stock
dividend, recapitalization or otherwise) its outstanding shares
of Common Stock, then the Exercise Price in effect immediately
prior to such subdivision shall be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this
Warrant shall be proportionately increased. If the Company at
any time combines (by reverse stock split or otherwise) its
outstanding shares of Common Stock, then the Exercise Price in
effect immediately prior to such combination shall be
proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant shall be proportionately
decreased.
2D. Reorganization, Reclassification,
Consolidation, Merger or Sale. Any recapitalization,
reorganization, reclassification, consolidation, merger, sale of
all or substantially all of the Company's assets or other
transaction, which in each case is effected in such a way that
the holders of its outstanding shares of Common Stock are
entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in
exchange for such Common Stock, is referred to herein as an
"Organic Change." Prior to the consummation of any Organic
Change, the Company shall make appropriate provision (in form and
substance reasonably satisfactory to the Registered Holder of
this Warrant) to insure that the Registered Holder of this
Warrant shall thereafter have the right to obtain and receive, in
lieu of or in addition to (as the case may be) the Warrant Shares
immediately theretofore obtainable and receivable upon the
exercise of this Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange
for the number of Warrant Shares immediately theretofore
acquirable and receivable upon exercise of this Warrant had this
Warrant been exercised immediately prior to the Organic Change
taking place. In any such case, the Company shall make
appropriate provision (in form and substance satisfactory to the
Registered Holder of this Warrant) with respect to the Registered
Holder's rights and interests to insure that the provisions of
this Section 2 and Sections 3 and 4 hereof shall thereafter be
applicable to this Warrant (including, without limitation, in the
case of any such consolidation, merger or sale in which the
successor entity or purchasing entity is other than the Company
and in which the value of the Warrant Shares as reflected by the
terms of such transaction is less than the Exercise Price in
effect immediately prior to such transaction, an immediate
adjustment of the Exercise Price and a corresponding immediate
adjustment in the number of Warrant Shares obtainable and
receivable upon exercise of this Warrant). The Company shall not
effect any such consolidation, merger or sale, unless prior to
the consummation thereof, the successor entity (if other than the
Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument (in form and
substance satisfactory to the Registered Holder of this Warrant),
the obligation to deliver to the Registered Holder such shares of
stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
2E. Certain Events. If any event occurs of the
type contemplated by the provisions of this Section 2 but not
expressly provided for by such provisions, then the Company's
board of directors shall make an appropriate adjustment in the
Exercise Price and an appropriate adjustment in the number of
Warrant Shares obtainable upon exercise of this Warrant so as to
protect the rights of the holders of this Warrant; provided that
no such adjustment shall increase the Exercise Price or decrease
the number of Warrant Shares obtainable as otherwise determined
pursuant to this Section 2.
2F. Notices.
(i) Immediately upon any adjustment of the Exercise
Price or the number of shares of Warrant Stock acquirable upon
exercise of this Warrant, the Company shall give written notice
thereof to the Registered Holder, setting forth in reasonable
detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the
Registered Holder at least 20 days prior to the date on which the
Company closes its books or takes a record (A) with respect to
any dividend or distribution upon the Common Stock, (B) with
respect to any pro rata subscription offer to holders of the
Common Stock or (C) for determining rights to vote with respect
to any Organic Change, dissolution or liquidation. The Company
shall also give written notice to the Registered Holder at least
20 days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
Section 3. Liquidating Dividends. If the Company
declares or pays a dividend upon the Common Stock payable
otherwise than in cash out of earnings or earned surplus
(determined in accordance with generally accepted accounting
principles, consistently applied) except for a stock dividend
payable in shares of Common Stock (a "Liquidating Dividend"),
then the Company shall pay to the Registered Holder of this
Warrant at the time of payment thereof the Liquidating Dividend
which would have been paid to the Registered Holder on the
Warrant Shares had this Warrant been fully exercised immediately
prior to the date on which the record was taken for such
Liquidating Dividend or, if no record was taken, the date as of
which the record holders of Common Stock entitled to such
dividends are to be determined.
Section 4. Purchase Rights. If at any time the
Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of its shares of
Common Stock (the "Purchase Rights"), then the Registered Holder
of this Warrant shall be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights
which such holder could have acquired if such holder had held the
number of Warrant Shares obtainable upon complete exercise of
this Warrant immediately before the date on which the record is
taken for the grant, issuance or sale of such Purchase Rights or,
if no such record is taken, the date as of which the record
holders of its shares of Common Stock are to be determined for
the grant, issue or sale of such Purchase Rights.
Section 5. Definitions. The following terms have
meanings set forth below:
"Common Stock" means the Company's Common Stock, par
value $0.01 per share.
"Common Stock Deemed Outstanding" means, at any given
time, (a) the number of shares of Common Stock actually
outstanding at such time, plus (b) the number of shares of Common
Stock deemed to be outstanding pursuant to Section 2B hereof,
regardless of whether the Options, Convertible Securities or
other securities are actually exercisable at such time, in each
case, without duplication (as adjusted for any subsequent stock
splits, stock dividends, combinations of shares and similar
recapitalizations).
"Convertible Securities" means any stock or securities
directly or indirectly convertible into or exchangeable for
Common Stock.
"Date of Issuance" means the Closing Date, regardless
of the number of times new certificates representing the
unexpired and unexercised rights formerly represented by this
Warrant shall be issued.
"Exercise Price" means $0.01 per share, which is deemed
paid upon the issuance of this Warrant by virtue of the making of
the Loan on the date hereof.
"Fair Market Value" means as to any security (other
than the Warrants) the average of the closing prices of such
security's sales on all domestic securities exchanges on which
such security may at the time be listed or quoted or, if there
have been no sales on any such exchange on any day, the average
of the highest bid and lowest asked prices on all such exchanges
at the end of such day, or, if on any day such security is not so
listed or quoted, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, in each such case averaged over a
period of 21 days consisting of the day as of which "Fair Market
Value" is being determined and the 20 consecutive business days
prior to such day; provided that if such security is listed on
any domestic securities exchange the term "business days" as used
in this sentence means business days on which such exchange is
open for trading. If at any time either (x) such security is not
listed or quoted on any domestic securities exchange or the
domestic over-the-counter market or (y) less than 20% of such
outstanding securities is held by the public free of transfer
restrictions under the Securities Act of 1933, as amended, the
"Fair Market Value" shall be the fair value thereof determined
jointly by the Company and the Majority Warrant Holders; provided
that if such holders and the Company are unable to agree within
10 days of delivery of the notice by the Company in connection
with the event giving rise to the determination of Fair Market
Value (or, if earlier, within 3 days of delivery of a notice by
the Company to the holders of Underlying Common Stock or delivery
of a notice by the Majority Warrant Holders to the Company, in
either case requesting designation of an independent arbitrator),
then by a nationally recognized investment banking firm selected
by the Company and the Majority Warrant Holders. The fees and
expenses of such investment banking firm shall be paid by the
Company. Any determination of Fair Market Value of the Common
Stock will be made without giving effect to any discount for any
lack of liquidity attributable to a lack of a public market for
such security, any block discount or discount attributable to the
size of any Person's holdings of such security, any fees paid or
payable to any stockholder of the Company or Affiliate thereof,
any minority interest or any voting rights thereof or lack
thereof. The "Fair Market Value" of a Warrant means the Fair
Market Value of the shares of Warrant Stock obtainable upon
exercise thereof.
"Majority Warrant Holders" at any time means the
holders of a majority of the Underlying Common Stock in existence
at such time.
"Options" means any rights or options to subscribe for
or purchase shares of Common Stock and/or Convertible Securities.
"Person" means an individual, a partnership, a joint
venture, a corporation, a limited liability company, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Stockholders Agreement" means that certain
Stockholders Agreement, dated as of January 24, 1994 (as amended
or modified from time to time), among the Company, GTCR and
certain other stockholders of the Company.
"Underlying Common Stock" means the Common Stock issued
or issuable upon exercise of or with respect to the Warrants, and
any shares of stock issued or issuable with respect to such
securities by way of stock dividend or stock split or in
connection with a combination of stock, recapitalization, merger,
consolidation or other reorganization or otherwise pursuant to
the Warrants or other sale or exchange of all or substantially
all of the stock of the Company. Any Person who holds Warrants
shall be deemed to be the holder of the Underlying Common Stock
obtainable upon exercise of the Warrants in connection with the
transfer thereof or otherwise regardless of any restriction or
limitation on the exercise of the Warrants. As to any particular
shares of Underlying Common Stock, such shares shall cease to be
Underlying Common Stock when they have been (a) effectively
registered under the Securities Act and disposed of in accordance
with the registration statement covering them or (b) distributed
to the public through a broker, dealer or market maker pursuant
to Rule 144 under the Securities Act (or any similar provision
then in force).
"Warrant Share" means any share of Common Stock
obtained or obtainable upon the exercise of this Warrant;
provided that if there is a change such that the securities
issuable upon exercise of this Warrant are issued by an entity
other than the Company or there is a change in the type or class
of securities so issuable, then the term "Warrant Share" shall
mean one share of the security issuable upon exercise of the
Warrants if such security is issuable in shares, or shall mean
the smallest unit in which such security is issuable if such
security is not issuable in shares.
"Warrant Shares" means, collectively, each Warrant
Share obtained or obtainable upon the exercise of this Warrant.
Section 6. No Voting Rights; Limitations of Liability.
This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a stockholder of the Company. No
provision hereof, in the absence of affirmative action by the
Registered Holder to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the Registered Holder shall
give rise to any liability of the Registered Holder for any
further payment in respect of the Warrant Shares or as a
stockholder of the Company.
Section 7. Warrant Transferable. Subject to the
transfer conditions referred to in the legend imprinted hereon
and in the Stockholders Agreement, this Warrant and all rights
hereunder are transferable, in whole or in part, without charge
to the Registered Holder, upon surrender of this Warrant with a
properly executed Assignment (in the form of Exhibit II attached
hereto) at the principal office of the Company.
Section 8. Warrant Exchangeable for Different
Denominations. This Warrant is exchangeable, upon the surrender
hereof by the Registered Holder at the principal office of the
Company, for new Warrants of like tenor representing in the
aggregate the purchase rights hereunder, and each such new
Warrant shall represent such portion of such rights as is
designated by the Registered Holder at the time of such
surrender. The date the Company initially issues this Warrant
shall be deemed to be the "Date of Issuance" hereof regardless of
the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall
be issued. All Warrants representing portions of the rights
hereunder are referred to herein collectively as the "Warrant."
Section 9. Replacement. Upon receipt of evidence
reasonably satisfactory to the Company (an affidavit of the
Registered Holder shall be satisfactory) of the ownership and the
loss, theft, destruction or mutilation of this Warrant and/or any
certificate evidencing Warrant Shares, and in the case of any
such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Company (provided that if the
holder is a financial institution or other institutional
investor, its own agreement shall be satisfactory) or, in the
case of any such mutilation, upon surrender of this Warrant
and/or such certificate (as applicable), the Company shall (at
its expense) execute and deliver, in lieu of this Warrant and/or
such certificate, a new Warrant and/or certificate of like kind
representing the same rights represented by, and dated the date
of, such lost, stolen, destroyed or mutilated Warrant and/or
certificate (as applicable).
Section 10. Notices. Except as otherwise expressly
provided herein, all notices referred to in this Warrant shall be
in writing and shall be delivered personally, sent by reputable
overnight courier service (charges prepaid) or sent by registered
or certified mail, return receipt requested, postage prepaid and
shall be deemed to have been given when so delivered (i) to the
Company at its principal executive offices and (ii) to the
Registered Holder of this Warrant, at such holder's address as it
appears in the records of the Company (unless otherwise indicated
by any such holder).
Section 11. Amendment and Waiver. Except as otherwise
provided herein, the provisions of this Warrant may be amended
and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if
the Company has obtained the prior written consent of the
holder(s) of a majority of the purchase rights represented by
this Warrant.
Section 12. Descriptive Headings. The descriptive
headings of the several sections and paragraphs of this Warrant
are inserted for convenience only and do not constitute a part of
this Warrant.
Section 13. Governing Law. This Warrant shall be
governed by, and shall be construed and enforced in accordance
with, the laws of the State of Delaware without giving effect to
any choice of law or conflict of law provision or rule (whether
of the State of Delaware or any other jurisdictions) that would
cause the application of the laws of any jurisdiction other than
the State of Delaware.
* * * *
IN WITNESS WHEREOF, the Company has caused this Warrant
to be signed by its duly authorized officer and dated as of the
Date of Issuance.
U.S. AGGREGATES, INC.
By:
___________________________________
Its:
__________________________________
EXHIBIT I
EXERCISE AGREEMENT
To: U.S. Aggregates, Inc. Dated:
The undersigned, pursuant to the provisions set forth
in the attached Warrant (Certificate No. CW-___), hereby elects
to purchase _________ shares of Common Stock obtainable under
such Warrant, the purchase price of $0.01 per share having
previously been paid.
Signature:
____________________________
Name:
____________________________
On behalf of:
____________________________
Its:
____________________________
Address:
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________
hereby sells, assigns and transfers all of the rights of the
undersigned under the attached Warrant (Certificate No. CW-___ )
with respect to the number of Warrant Shares set forth below and
covered thereby, unto:
Names of Assignee Address Class of Shares No. of Shares
Dated: Signature _______________________
_______________________
Witness _______________________
