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Exhibit 4.4
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WARRANT PURCHASE AGREEMENT
dated as of
May 26, 1994
between
WASTE-QUIP, INC.
and
BANC ONE CAPITAL PARTNERS II, LIMITED PARTNERSHIP
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WARRANT PURCHASE AGREEMENT
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THIS WARRANT PURCHASE AGREEMENT (this "Agreement") dated as of
the 26th day of May, 1994, by and between WASTE-QUIP, INC., an Ohio corporation
(the "Company"), and Banc One Capital Partners II, Limited Partnership, a
Delaware limited partnership ("BOCPII" or the "Purchaser").
WITNESSETH:
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WHEREAS, pursuant to that certain Loan Agreement dated as of
May 26, 1994 among the Company, Waste-Quip Manufacturing Company, an Ohio
corporation (formerly known as Accurate Industries, Inc.) ("WQMC") and BOCPII
(such Loan Agreement, as the same may be modified, amended or supplemented from
time to time, being hereinafter referred to as the "Loan Agreement"), the
Purchaser has agreed to make a loan to the Company and WQMC subject to the terms
and conditions therein;
WHEREAS, in order to induce the Purchaser to enter into the
Loan Agreement, to make a loan as provided therein and to perform certain other
agreements, the Company has agreed to issue to the Purchaser warrants initially
exercisable for a number shares of the Common Stock of the Company equal to nine
and thirty-five one-hundredths percent (9.35%) of the fully diluted outstanding
shares of the Class A Common Stock of the Company, all as more fully set forth
below;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement or in the
Warrant, defined below.
SECTION 2. ISSUANCE OF WARRANTS.
2.1 ISSUANCE OF WARRANTS. Subject to the terms and conditions
in the Loan Agreement, at the Closing, the Company shall issue to the Purchaser
a Warrant in the form of EXHIBIT A attached hereto (the "Warrant") initially
exercisable for the purchase of the number of shares of Common Stock (as subject
to vesting and adjustment as provided in the Warrant) of the Company determined
as follows: (i) if, as of the date which is 90 days subsequent to the Original
Issue Date, the Aggregate Loan Amount equals $9,000,000, such number shall be
142,376, and (ii) if, as of such date the Aggregate Loan Amount is $10,000,000,
such number shall be 146,081, in each case representing 9.35% of the Fully
Diluted Outstanding Common Stock of the Company as of the Original Issue Date,
at a per share purchase price equal to
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$0.005 (the initial "Current Warrant Price", as subject to adjustment as
provided in the Warrant).
2.2 ALLOCATION OF THE ISSUE PRICE. The Company and the
Purchaser hereby acknowledge that for purposes of Section 1273(c)(2) of the
Code, the allocated issue price of the Warrant for such purposes is equal to
$50.00 for the Warrant in its entirety. The Company and the Purchaser agree that
the foregoing issue price is a fair approximation of the fair market value of
the Warrant and that they shall use the foregoing issue price for all federal,
state and local income tax purposes.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser as
follows:
(a) The Company has full legal right, power and authority to
enter into and perform this Agreement and the Warrant, and the execution,
delivery and performance by the Company of this Agreement and the Warrant are
within the Company's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Company's articles of
incorporation or code of regulations, (ii) violate any Applicable Law, (iii)
breach or violate any agreement, instrument, document or other contractual
restriction binding on or affecting the Company or any of its Subsidiaries or
any of their other properties, or (iv) result in or require the creation or
imposition of any Lien whatsoever upon any of the other assets of the Company or
any of its Subsidiaries except as provided for by the Financing Agreements, as
defined in the Loan Agreement.
(b) Except for any filings which may be required under
applicable federal and state securities laws, which the Company undertakes to
make in accordance with such laws, no Governmental Approval is required for the
due execution, delivery and performance by the Company of this Agreement and the
Warrant.
(c) This Agreement is, and the Warrant when delivered
hereunder will be, duly executed and delivered (and in the case of the Warrant,
validly issued and free and clear of all Liens (other than those created by the
actions of the Purchaser), and fully paid and non-assessable and issued without
violation of any preemptive rights), and legal, valid and binding obligations-of
the Company enforceable against the Company in accordance with their respective
terms. The shares of Common Stock issuable upon exercise of the Warrant have
been duly authorized and reserved for issuance and, when issued in accordance
with the terms of the warrant, will be validly issued, fully paid and
non-assessable, free and clear of all Liens (other than those created by the
actions of the Purchaser), and issued without violation of any
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preemptive rights.
(d) Neither the Company nor any of its Subsidiaries is in
default under or in respect of any agreement, document, instrument or other
contractual obligation which materially adversely affects the ability of the
Company to perform its obligations under this Agreement and the Warrant.
(e) Except for the Senior Loan Agreement, noncontractual
obligation of the Company or any of its Subsidiaries applicable to or binding
upon the Company or any of its Subsidiaries or their assets, individually or in
the aggregate, materially adversely affects the Company's ability to perform its
obligations under this Agreement and the Warrant.
(f) There is not pending or threatened any action or
proceeding affecting the Company or any of its Subsidiaries or their assets
before any court, governmental agency or arbitrator, which materially adversely
affects the legality, validity or enforceability of this Agreement or the
Warrant.
(g) The authorized capital stock of the Company consists of
(i) 2,000,000 shares of Common Stock, of which 904,060 shares are issued and
outstanding, 160,000 shares are reserved for issuance upon conversion of the
Company's outstanding Class B Common Shares, without par value, of the Company
(the "Class B Common Shares"), 160,000 shares are reserved for issuance upon
exercise of the Mayfab Warrant, 146,081 shares are reserved for issuance upon
exercise of the BOCPII Warrant, 155,455 shares are reserved for issuance upon
exercise of the Warrant, and 110,713 are reserved for issuance upon exercise of
stock options granted pursuant to the Company's Outside Director Stock Option
Plan and Key Employee Stock Option Plan; (ii) 160,000 shares of Class B Common
Shares, of which 160,000 shares are issued and outstanding; and (iii) 400,000
Preferred Shares, none of which are issued and outstanding. All the shares of
Common Stock and Class B Common Shares Outstanding have been duly authorized and
validly issued, are fully paid and non-assessable, free of pre-emptive rights
and, except for 500 Shares of Common Stock issued to an employee of the Company
in 1990, have been offered and issued without violation of the Securities Act or
any applicable state securities or blue sky law or any pre-emptive rights of any
Person. Except as provided in the Company's articles of incorporation, its code
of regulations and the Shareholders' Agreement and as referred to hereinabove,
(i) there are no issued or outstanding Securities that are convertible into or
exchangeable for shares of the Company's capital stock ("Convertible
Securities"); (ii) there are no issued or outstanding subscriptions, options,
warrants or other rights to purchase or acquire any shares of the Company's
capital stock or any Convertible Securities ("Option Rights"); (iii) the Company
is not a party to any agreement or understanding pursuant
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to which it is obligated to purchase or redeem any shares of its capital stock
or any Convertible Securities or Option Rights and is not otherwise under any
obligation to purchase, redeem or otherwise acquire any shares of its capital
stock or any Convertible Securities or Option Rights; and (iv) to the best
knowledge of the Company, no securities holder of the Company is a party to any
voting agreement, voting trust, irrevocable proxy or other agreement affecting
the voting rights of any shares of the Company's capital stock or any agreement
providing for any "call" or "put" option, right of first refusal or offer or
other right to acquire or dispose of any shares of the Company's capital stock
or any Convertible Securities or Option Rights. Except as described in this
Section 3(g), no additional shares of Common Stock will become issuable upon the
exercise of any Outstanding Convertible Securities or Option Rights on account
of the issuance or exercise of the Warrant.
(h) Based in part upon the accuracy of the representations and
warranties of the Purchaser contained herein and of BOCPII contained in its
Warrant Purchase Agreement with the Company dated as of even date herewith, the
offer and sale of the Warrant hereunder is exempt from the registration and
prospectus delivery requirements of the Securities Act, and the rules and
regulations thereunder, and all applicable state securities laws. The Company
has not offered the Warrant to any Person other than the Purchaser, and, except
for the BOCPII Warrant and the Mayfab Warrant, no securities of the same class
as the Warrant have been offered and sold by the Company within the six-months'
period immediately prior to the date hereof.
(j) No brokerage or finder's commissions or fees are payable
in connection with the transactions contemplated by this Agreement on account of
any action taken by the Company, its Affiliates or their representatives, except
for Capital One Partners, and the Company will indemnify the Purchaser against
and hold the Purchaser harmless from any liability, loss or expense (including,
without limitation, reasonable attorneys' fees) arising in connection with any
claim for any such commission or fees (including those of Capital One Partners).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company
that (a) the Warrant is being acquired for the Purchaser's own investment and
not with a present view to or for sale in connection with any distribution
thereof to others; (b) the Purchaser is an "accredited investor" as defined in
Regulation D under the Securities Act; (c) the Purchaser has full legal right,
power and authority to enter into and perform this Agreement and the Warrant;
(d) the execution and delivery of this Agreement by it and the consummation of
the transactions contemplated hereby and by the Warrant have been duly
authorized
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by all necessary corporate action; and (e) this Agreement and the Warrant
constitute the legal, valid and binding obligation of the Purchaser, enforceable
against it in accordance with its terms.
SECTION 5. MISCELLANEOUS.
5.1 EXPENSES. The Company agrees to pay, and save the
Purchaser harmless against liability for the payment of, all reasonable
out-of-pocket expenses arising in connection with the transactions contemplated
by this Agreement or by the Warrant, including, without limitation, any stamp or
similar taxes (including interest and penalties, if any) which may be determined
to be payable in respect of the execution, delivery, issue and sale of the
Warrant, the reasonable fees and expenses of counsel to the Purchaser in
connection with the preparation of this Agreement and the issuance of the
Warrant, including any modifications, amendments or consents to such agreements,
the expense of preparing and issuing the Warrant, the cost of delivering the
Warrant to such place as the Purchaser shall determine, insured to their
satisfaction, and the costs and expenses incurred in the preparation of all
certificates and letters on behalf of the Company and of the performance by the
Company of and compliance with all agreements and conditions contained herein to
be performed or complied with. The obligations of the Company under this Section
5.01 are in addition to the obligations of the Company under the Credit
Agreement.
5.2 NONWAIVER. No course of dealing or any delay or failure to
exercise any right hereunder on the part of the Company or the Purchaser shall
operate as a waiver of such right or otherwise prejudice the rights, powers or
remedies of such Person.
5.3 NOTICES. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled, delivered
or personally served, at the addresses of the parties hereto (until notice of a
change thereof is delivered as provided herein) as set forth below:
(i) If to the Purchaser, at:
Banc One Capital Partners Corporation
00 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No. (000) 000-0000
With a copy to:
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Vorys, Xxxxx, Xxxxxxx and Xxxxx
X.X. Xxx 0000
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No. (000) 000-0000
(ii) If to the Company, at:
Waste-Quip, Inc.
00000 Xxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: President and Chief Executive
Officer
Telecopy No. (000) 000-0000
With a copy to:
Xxxxxx Halter & Xxxxxxxx
0000 Xxxxxxx Xxxxxxxx
Xxxx Xxxxx & Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy No. (000) 000-0000
or to such other address as each party designates to the other in the manner
herein prescribed. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective two Business Days after
being deposited in the mails, or when telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered to the cable company,
respectively.
5.4 SURVIVAL. All warranties, representations, and covenants
made herein or in any certificate or other instrument delivered by the parties
hereto or on their behalf under this Agreement shall be considered to have been
relied upon and shall survive the delivery of the Warrant and payment therefor,
regardless of any investigation made by any such party or on their behalf. All
statements in any such certificate or other instrument shall constitute
warranties and representations by such party hereunder.
5.5 AMENDMENT. This Agreement may be amended only by a written
instrument signed by the Purchaser and the Company.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The Company shall not have the right to assign
any of its rights and obligations under this Agreement without the prior written
consent of the Purchaser. Any transfer of any Warrant shall be
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deemed to constitute an automatic assignment of the rights of the Transferor
hereunder to the transferee.
5.7 SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction shall
not in any way be affected or impaired.
5.8 HEADINGS. The descriptive headings of the various Sections
or parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
5.9 GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Ohio.
5.10 WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE
PURCHASER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR THE WARRANT.
5.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
WASTE-QUIP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: CFO
BANC ONE CAPITAL PARTNERS II,
LIMITED PARTNERSHIP
By Banc One Capital Partners II
Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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