EXHIBIT 4.10
[EUF Warrants]
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") is entered into as of December 27,
1996 by and between Xxxxxx Holdings, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxx (the "Holder").
Contemporaneously with the execution of this Agreement, the Holder has agreed
to acquire 100 shares of the Company's Class B Common Stock, $0.01 per value
("Class B Common"). The Class B Common carry the right for the Holder to
acquire and, the Company has agreed to issue and sell to the Holder, as part of
the issuance of the Class B Common, a Stock Purchase Warrant, as hereinafter
described (the "Warrant"), to purchase 336.5132 shares (the "Shares") of the
Company's Class A Common Stock, $0.01 par value ("Class A Common"). The
issuance of the Warrant by the Company shall occur concurrently with the
Holder's acquisition of the Class B Common.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
for the purpose of defining the terms and provisions of the Warrant and the
respective rights and obligations thereunder, the Company and the Holder hereby
agree as follows:
SECTION 1. Transferability and Form of Warrant.
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1.1. Registration. The Warrant shall be numbered and shall be registered on
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the books of the Company when issued. This Agreement, the Warrant and any Shares
issued hereunder are subject to the rights and obligations of that certain
Shareholders Agreement (the "Shareholders Agreement") of even date herewith
between the Company, the Holder and other shareholders and warrantholders of the
Company.
1.2. Non-Transferability. The Warrant may be freely traded separate and
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apart from the shares of Class B Common. However, neither the Warrant nor the
right, title or interest of the Holder in this Agreement may be transferred or
assigned unless such transfer or assignment is to an "accredited investor," as
defined in Rule 501 promulgated under the Securities Act of 1933, as amended,
compliance with said standard to be demonstrated by evidence reasonably
satisfactory to the Company; provided, however, in the event the Holder assigns
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or transfers its interest in this Agreement, the assignee or transferee of said
interest shall be subject to all Section 1.3 restrictions and shall acquire only
such partial exercise rights as remain
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pursuant thereto. This Agreement and all rights and interests hereunder are
assignable or transferable by the Holder only in whole and not in part. Any
Shares issued pursuant to a Warrant issued hereunder shall be subject to the
rights and obligations of that certain Registration Rights Agreement dated of
even date herewith between the Company and the Holder, and the Shareholders
Agreement.
1.3. Securities Law Restrictions on Transfer of the Warrant. Neither this
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Agreement, the Warrant, any of the Shares, nor any interest herein or therein
may be sold, transferred, or otherwise disposed of in the absence of
registration or qualification, as the case may be, of the same under the
Securities Act of 1933, as amended, and applicable state securities laws, or an
exemption therefrom. The Warrant may be divided, upon request to the Company by
the Holder, into a certificate or certificates representing the right to
purchase the same aggregate number of Shares. Unless the context indicates
otherwise, the term "Holder" shall include any transferee or transferee of the
Warrant and the term "Warrant" shall include any and all warrants outstanding
pursuant to this Agreement, including those evidenced by a certificate or
certificates issued upon division, exchange, substitution or permitted transfer
pursuant to this Agreement.
1.4. Form of Warrant. The text of the Warrant and the form of election to
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purchase Shares shall be substantially as set forth in Exhibit 1.4A and Exhibit
1.4B attached hereto and hereby made a part hereof. The Warrant shall be
executed on behalf of the Company by its Chairman or President and by its
Secretary, Assistant Secretary or Treasurer.
A Warrant bearing the signature of an individual who was at any time the
proper officer of the Company shall bind the Company, notwithstanding that such
individual shall have ceased to hold such office prior to the delivery of such
Warrant or did not hold such office on the date of this Agreement.
The Warrant shall be dated as of the date of signature thereof by the Company
either upon initial issuance or upon division, exchange, substitution or
transfer.
1.5. Legend on Warrant Shares. The Warrant and each certificate for Shares
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initially issued upon exercise of the Warrant, shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED, MORTGAGED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (II) UPON RECEIPT OF
AN OPINION OF THE COUNSEL TO THE TRANSFEROR, REASONABLY ACCEPTABLE TO THE
ISSUER, THAT SUCH SALE,
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TRANSFER, PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION IS PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION. BY ITS ACCEPTANCE HEREOF, THE HOLDER
OF THIS CERTIFICATE REPRESENTS THAT IT IS ACQUIRING SUCH SECURITIES FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TOWARD THE DISTRIBUTION OR RESALE
THEREOF, AND AGREES TO COMPLY WITH THE WARRANT AGREEMENT, DATED AS OF DECEMBER
27, 1996 BY AND AMONG XXXXXX HOLDINGS, INC., A DELAWARE CORPORATION (THE
"COMPANY") AND XXXXX X. XXXXXX (THE "HOLDER"), THE REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 27, 1996 BY AND AMONG THE COMPANY AND THE HOLDER, AND THE
SHAREHOLDERS AGREEMENT DATED AS OF DECEMBER 27, 1996 BY AND AMONG THE COMPANY,
THE HOLDER AND OTHER WARRANTHOLDERS AND SHAREHOLDERS OF THE COMPANY.
Any warrant or certificate issued at any time in exchange or substitution for
any warrant or certificate bearing such legend shall also bear the above legend
unless, in the opinion of the Company's counsel or such other counsel as shall
be reasonably approved by the Company, the securities represented thereby are no
longer subject to the restrictions referred to in such legend.
1.6. Investment Letter. Simultaneously with the delivery to the Holder of
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certificates or other documents representing the Shares and/or any substitute
Warrant, the Holder will execute and deliver to the Company a letter, in the
following form of Exhibit 1.6 hereto, representing to the Company as follows:
(a) The Holder is acquiring the Shares and the Warrant for the Holder's own
account (and not for the account of others), for investment and not with a
view to the distribution or resale thereof;
(b) The Holder is an "accredited investor", as defined in Rule 501
promulgated under the Securities Act of 1933, as amended (the "1933 Act");
(c) The Holder understands that the Holder may not sell or dispose of the
Shares or the Warrant in the absence of either a registration statement under
the 1933 Act or an exemption from the registration provisions of the 1933 Act;
(d) The Holder understands that the Warrant and the Shares are subject to
restrictions on transfer as provided in the Shareholders Agreement;
(e) The Holder understands and agrees that if he should decide to dispose
of or transfer any of the Shares or the Warrant, he may dispose of them only
(i) to an "accredited investor", (ii) in compliance with the 1933 Act, as then
in effect, and (iii) upon delivery to the Company of an opinion, in form and
substance reasonably satisfactory to the Company, of recognized securities
counsel to the effect that the disposition or transfer is to be made in
compliance with all applicable federal and state securities laws; and
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(f) The Holder understands that stop-transfer instructions to the foregoing
effect will be in effect with respect to the Shares and the Warrant.
SECTION 2. Exchange of Warrant Certificate. Subject in all respects to the
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limitations on transferability and divisibility of Section 1 hereof, any
certificate evidencing all or a portion of the Warrant may be exchanged for
another certificate or certificates entitling the Holder to purchase a like
aggregate number of Shares as the certificate or certificates surrendered then
entitling such Holder to purchase. Any Holder desiring to exchange a
certificate evidencing all or a portion of the Warrant, shall make such request
in writing delivered to the Company, and shall surrender, properly endorsed, the
certificate evidencing the portion of the Warrant to be so exchanged.
Thereupon, the Company shall, within five (5) business days, execute and deliver
to the person entitled thereto a new certificate evidencing all or a portion of
the Warrant as so requested.
SECTION 3. Term of Warrants; Exercise of Warrants.
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(a) Subject to the terms of this Agreement, the Holder shall have the right,
at any time during the period commencing on the "Exercisability Date"
(hereinafter defined), and ending at 5:00 p.m., New York, New York time, on
December 26, 2006 (the "Termination Date"), to purchase from the Company up to
the number of Shares which the Holder may at the time be entitled to purchase
pursuant to this Agreement and the portion of the Warrant (or certificate
therefor) then held by it, upon surrender to the Company, at its principal
office in Dallas, Texas, of the certificate evidencing the portion of the
Warrant to be exercised together with the purchase form duly filled in and
signed, and upon payment to the Company of the portion of the Warrant Price, as
defined in and determined in accordance with the provisions of Sections 6 and 7
hereof, allocable to the number of Shares with respect to which such portion of
the Warrant is then exercised. Payment of the Warrant Price shall be made (i) in
cash, by cashier's check or by wire transfer or (ii) through the surrender of
debt, preferred equity securities or Common Stock of the Company having a
principal amount, liquidation preference, or current market price, as the case
may be, equal to the aggregate Warrant Price to be paid (the Company will pay
the accrued interest or dividends on such surrendered debt, preferred equity
securities, or Common Stock in cash at the time of surrender notwithstanding the
stated terms thereof) or (iii) through "cashless" or "net-issue" exercise
provided in Section 3(b) below. For purposes of this Section 3, the
"Exercisability Date" shall mean the earliest to occur of the following dates:
(i) December 27, 1999; (ii) the date when a Change of Control Notice (as defined
in Section 7.4) is given; (iii) the date that certain Consulting and Strategic
Services Agreement dated December 27, 1996 by and between the Company and EUF
Xxxxxx X.X.
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is terminated (with or without cause); or (iv) the date upon which a registered
public offering under the Securities Act of 1933, as amended, of equity
interests in the Company is made pursuant to a registration statement on Form
S-1 or a successor form, but in no event earlier than June 27, 1998 in the event
such offering occurs prior to such date.
(b) The holder of the Warrant may also exercise the Warrant in a "cashless"
or "net-issue" exercise by delivery to the Company of (a) the written notice
described in Section 3(a) above, (b) the Warrant and (c) written notice that the
holder elects to make payment of the Warrant Price, in full or in part, by
surrender of its right to purchase certain shares of Common Stock pursuant to
the Warrant. For purposes of this Section 3(b), the value of the surrender of
the right to purchase a share of Common Stock shall be attributed a value equal
to (i) the current market price per share of Common Stock minus (ii) the then
Warrant Price per share of Common Stock. If the determination of current market
price per share of Common Stock is to be made for a "cashless" or "net-issue"
exercise in connection with an initial public offering of Common Stock, the
current market price per share of Common Stock shall equal the per share
offering price without deductions for any compensation, discounts or expenses
paid or incurred by the Company in connection with such offering. Otherwise, the
current market price shall be determined in accordance with the provisions of
Section 7.1(f) hereof.
(c) Upon such surrender of the Warrant (or certificate therefor) and payment
of such Warrant Price as aforesaid, or after "cashless" or "net issue" exercise,
the Company shall, within five (5) business days, issue and cause to be
delivered to or upon the written order of the Holder, and in such name or names
as the Holder may designate, certificate or certificates for the number of full
Shares so purchased upon the exercise of the Warrant, together with cash, as
provided in Section 8 hereof, with respect to any fractional Shares otherwise
issuable upon such surrender and the cash, property and other securities to
which the Holder is entitled pursuant to the provisions of Section 7. The
Warrant shall be exercisable, at the election of the Holder, either in whole or
from time to time in part and, in the event that the certificate evidencing the
Warrant is exercised with respect to less than all of the Shares specified
therein at any time prior to the Termination Date, a new certificate evidencing
the remaining Warrant shall be issued by the Company.
SECTION 4. Payment of Taxes. The Company shall pay all documentary stamp
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taxes, if any, attributable to the initial issuance of the Shares; provided that
the Company shall not be required to pay any tax or taxes which may be payable
with respect to any secondary transfer of the Warrant or the Shares.
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SECTION 5. Mutilated or Missing Warrant. In case the certificate or
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certificates evidencing the Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Holder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated certificate
or certificates, or in lieu of and substitution for the certificate or
certificates lost, stolen or destroyed, a new Warrant certificate or
certificates of like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Warrant and of a bond of indemnity, if requested, also
satisfactory in form and amount at the applicant's cost. Applicants for such
substitute Warrant certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe,
not to exceed Two Hundred Fifty and no/100 Dollars ($250) per occurrence.
SECTION 6. Warrant Price.
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6.1. Warrant Price. The per Share price (the "Warrant Price") at which
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Shares shall be purchasable upon the exercise of the Warrant is $2,000, subject
to adjustment pursuant to Section 7 hereof.
SECTION 7. Adjustment of Warrant Price and Number of Shares.
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7.1. Adjustment of Warrant Price and Number of Shares. After the issuance of
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the Warrant, the number and kind of securities purchasable upon the exercise of
the Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
(a) Adjustments for Change in Capital Stock. In the event the Company shall
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(A) pay a stock dividend or make a distribution to holders of Common Stock in
shares of its Common Stock, (B) subdivide its outstanding shares of Common Stock
into a larger number of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares, (D) make a distribution on its Common
Stock in shares of its capital stock other than Common Stock or preferred stock,
(E) issue by reclassification of its shares of Common Stock any shares of
capital stock of the Company, or (F) take any action which would result in any
of the foregoing, then the Warrant Price and the number and kind of shares of
capital stock of the Company issuable upon exercise of a Warrant as in effect
immediately prior to such action shall then be proportionally adjusted so that
the holder of any Warrant thereafter exercised may receive the aggregate number
and kind of shares of capital stock of the Company which he would have owned
immediately following such action if such Warrant had been exercised immediately
prior to such action.
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An adjustment made pursuant to this Section 7.1(a)(i) shall become effective
retroactively immediately after the record date in the case of a dividend or
distribution of Common Stock and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of the Company, the Company shall
determine the allocation of the adjusted Warrant Price between the classes of
capital stock. After such allocation, the exercise privilege and the Warrant
Price of each class of capital stock shall thereafter be subject to adjustment
on terms comparable to those applicable to Common Stock in this Section.
(b) Adjustment for Rights Issue. If the Company distributes any rights,
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options or warrants to any holder of its Common Stock (other than those certain
contingent warrants which may be issued to the holders of the Company's
subordinated debt) entitling them for a period expiring within 60 days after the
record date mentioned below to purchase shares of Common Stock at a price per
share less than the current market price per share on that record date, the
Warrant Price shall be adjusted in accordance with the formula:
O + N x P
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W' = W x M
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O + N
Where:
W' = the adjusted Warrant Price
W = the current Warrant Price
O = the number of shares of Common Stock outstanding on the record date
N = the number of additional shares of Common Stock offered
P = the offering price per share of the additional shares
M = the current market price per share of Common Stock on the record date
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 stockholders entitled to receive the right, 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 Price shall be
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immediately readjusted to what it would have been if "N" in the above formula
had been the number of shares actually issued.
(c) Adjustment for Other Distributions. If the Company distributes to any
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holder of its Common Stock any of its assets (including but not limited to cash,
debt securities, preferred stock, or any rights or warrants to purchase debt
securities, preferred stock, assets or other securities of the Company), the
Warrant Price shall be adjusted in accordance with the formula:
W' = W x M - F
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M
Where:
W' = the adjusted Warrant Price
W = the current Warrant Price
M = the current market price per share of Common Stock outstanding on the
record date mentioned below
F = the Fair Market Value on the record date of the net assets, securities,
rights or warrants applicable to one share of Common Stock.
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 stockholders entitled to receive the distribution.
This subsection does not apply to rights, options or warrants referred to in
subsection (b) of this Section 7.1.
(d) Adjustment for Common Stock Issue. If the Company issues shares of
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Common Stock for a consideration per share less than the current market price
per share on the date the Company fixes the offering price of such additional
shares, the Warrant Price shall be adjusted in accordance with the formula:
P
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W' = W x O + M
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A
Where:
W' = the adjusted Warrant Price
W = the then current Warrant Price
O = the number of shares outstanding immediately prior to the issuance of
such additional shares
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P = the aggregate consideration received for the issuance of such additional
shares
M = the current market price per share on the date of issuance of such
additional shares
A = the number of shares outstanding immediately after the issuance of such
additional shares
The adjustment shall be made successively whenever any such issuance is made,
and shall become effective after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (b) and (c) of this
Section 7.1 or
(2) Common Stock issued in a bona fide public offering pursuant to a firm
commitment underwriting or
(3) Shares of Common Stock issued pursuant to existing options or the exchange
of convertible securities on the date hereof.
(e) Adjustment for Convertible Securities or Options Issue. If the Company
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issues any securities convertible into or exchangeable for Common Stock or
options, rights or warrants to subscribe for, purchase or otherwise acquire any
class of Common Stock or convertible securities (other than securities issued in
transactions described in subsections (b) and (c) of this Section 7.1) for a
consideration per share of Common Stock initially deliverable upon conversion or
exchange of such securities less than the current market price per share on the
date of issuance of such securities, the Warrant Price shall be adjusted in
accordance with this formula:
P
-
W' = W x O + M
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O + D
Where:
W' = the adjusted Warrant Price
W = the then current Warrant Price
O = the number of shares outstanding immediately prior to the issuance of
such securities
P = the aggregate consideration received for the issuance of such securities
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M = the current market price per share on the date of issuance of such
securities or to be received upon the exercise of such securities
D = the maximum number of shares deliverable upon conversion, exercise or in
exchange for such securities at the initial conversion price, exercise price or
exchange rate
The adjustment shall be made successively whenever any such issuance is made,
and shall become effective immediately after such issuance.
No further adjustment in the Warrant Price shall be made upon the subsequent
issue of convertible securities or shares of Common Stock upon the exercise of
options or conversion or exchange of such convertible securities.
If all of the Common Stock deliverable upon conversion or exchange of such
securities have not been issued when such securities are no longer outstanding,
then the Warrant Price shall promptly be readjusted to the Warrant Price 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 shares of Common Stock issued
upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities issued in a bona
fide public offering pursuant to a firm commitment underwriting.
(f) Current Market Price.
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(1) In Section 3(b) and subsections (b), (c), (d) and (e) of this
Section 7.1(a) the current market price per share of Common Stock on any
date is:
(i) if the Common Stock is not registered under the Exchange Act, then,
based upon the Fair Market Value of 100% of the Company if sold as a going
concern and without regard to any discount for the lack of liquidity or on
the basis that the relevant shares of the Common Stock do not constitute a
majority or controlling interest in the Company; or
(ii) if the Common Stock is registered under the Exchange Act, the
average of the Quoted Prices of the Common Stock for 20 consecutive trading
days before the date in question. The "Quoted Price" of the Common Stock is
the last reported sales price of the Common Stock as reported by Nasdaq
National Market, or if the Common Stock is listed on a national securities
exchange, the last reported sales price of the Common Stock on such
exchange (which shall be for consolidated trading if applicable to such
exchange), or if neither so reported or listed, the last reported bid
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price of the Common Stock. In the absence of one or more such quotations,
the current market price of the Common Stock shall be determined as if the
Common Stock was not registered under the Exchange Act.
(2) Fair Market Value. Fair Market Value means the value obtainable
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upon a sale in an arm's length transaction to a third party under usual and
normal circumstances, with neither the buyer nor the seller under any
compulsion to act, with equity to both, as determined by the Board in good
faith; provided, however, that if the holder of this Warrant shall dispute
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the Fair Market Value as determined by the Board, such holder may undertake
to have it and the Company retain an Independent Expert. The determination
of Fair Market Value by the Independent Expert shall be final, binding and
conclusive on the Company and such holder. All costs and expenses of the
Independent Expert shall be borne by such holder unless the Fair Market
Value as determined by the Independent Expert exceeds the Fair Market Value
as determined by the Board by 5% but less than 10%, in which case the cost
of the Independent Expert shall be shared equally by such holder and the
Company, and unless the Fair Market Value as determined by the Independent
Expert exceeds the Fair Market Value as determined by the Board by 10% or
more, in which case the cost of the Independent Expert shall be borne
solely by the Company.
(3) Independent Expert. Independent Expert means an investment
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banking firm reasonably agreeable to the Company and the holder of this
Warrant who does not (and whose affiliates do not) have a financial
interest in the Company or any of its affiliates.
(g) Consideration Received. For purposes of any computation respecting
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consideration received pursuant to subsections (d) and (e) of this Section 7.1,
the following shall apply:
(1) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided 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 of shares of Common Stock 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;
(3) in the case of the issuance of securities convertible into or
exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the
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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 or exchange thereof (the consideration in each
case to be determined in the same manner as provided in clauses (1) and (2)
of this subsection).
(h) When De Minimis Adjustment May Be Deferred. No adjustment in the Warrant
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Price need be made unless the adjustment would require an increase or decrease
of at least 1% in the Warrant Price. Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
(i) Notice of Adjustment. Whenever the Warrant Price is adjusted, the Company
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shall provide the notice required by Section 11 hereof.
(j) Voluntary Reduction. The Company from time to time may reduce the Warrant
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Price by any amount for any period of time if the period is at least 20 days and
if the reduction is irrevocable during the period; provided, however, that in no
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event may the Warrant Price be less than the par value of a share of Common
Stock.
Whenever the Warrant Price is reduced, the Company shall mail to Warrant
holders a notice of the reduction. The Company shall mail the notice at least
15 days before the date the reduced Warrant Price takes effect. The notice
shall state the reduced Warrant Price and the period it will be effect.
A reduction of the Warrant Price does not change or adjust the Warrant Price
otherwise in effect for purposes of subsections (a), (b), (c), (d) and (e) of
this Section 7.1.
(k) Adjustment in Number of Shares. Upon each adjustment of the Warrant Price
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pursuant to this Section 7.1, each Warrant outstanding prior to the making of
the adjustment in the Warrant Price shall thereafter evidence the right to
receive upon payment of the adjusted Warrant Price that number of shares of
Common Stock (calculated to the nearest hundredth) obtained from the following
formula:
N' = N x W
-
W'
Where:
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N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Warrant Price
N = the number of Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Warrant Price prior to adjustment
W' = the adjusted Warrant Price
W = the Warrant Price prior to adjustment.
(l) In calculating any adjustment hereunder, the Warrant Price shall be
calculated to the nearest cent and the number of Shares purchasable hereunder
shall be calculated to the nearest .001 of a share.
(m) In the event that at any time, as a result of an adjustment made pursuant
to this Section 7, the Holder shall become entitled to purchase any securities
of the Company other than Class A Common Stock, the Company shall duly reserve
such securities for issuance and thereafter the number of such other securities
so purchasable upon exercise of the Warrant and the Warrant Price of such
securities shall be subject to the adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
the Shares contained in this Section 7.
(n) In any case in which the provisions of this Section 7.1 require that the
adjustment shall be effective immediately after a record date for an event, the
Company may defer until the occurrence of such event (1) issuing to the holder
of the Warrant or portion thereof exercised after such record date and before
the occurrence of such event the additional shares of Common Stock issuable upon
such exercise by reason of the adjustment required by such event over and above
the shares of Common Stock issuable upon such exercise before giving effect to
such adjustment, and (2) paying to such holder any cash in lieu of a fractional
share of Common Stock pursuant to Section 8 hereof; provided, however, that the
Company shall deliver to the holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive additional shares, other capital stock
and cash upon the occurrence of the event requiring such adjustment.
7.2. Statement on Warrants. Irrespective of any adjustment in the Warrant
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Price or the number or kind of Shares purchasable upon the exercise of the
Warrant, the Warrant certificate or certificates theretofore issued may continue
to express the same price and number and kind of shares as are stated in the
Warrant initially issuable pursuant to this Agreement.
7.3. Reservation. The Company shall at all times reserve and keep available,
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free from preemptive rights, so long as the
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Warrant remains outstanding, out of its authorized but unissued Common Stock the
full number of shares of Common Stock deliverable upon the exercise of the
Warrant and shall take all such action and obtain all such permits or orders as
may be necessary to enable the Company lawfully to issue such Common Stock.
The Company or, if appointed, the transfer agent for the Common Stock (the
"Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid 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 will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each holder
pursuant to Section 11 hereof.
Before taking any action which would cause an adjustment pursuant to Section
7.1 hereof to reduce the Warrant Price below the then par value (if any) of the
Shares, the Company will take any corporate action which may, in the opinion of
its counsel (which may be counsel employed by the Company), be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Shares at the Warrant Price as so adjusted.
The Company covenants that all Shares which may be issued upon exercise of
Warrants will, upon issue, be fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issue thereof.
7.4. Change in Control; Merger; Reorganization. Notwithstanding anything to
-----------------------------------------
the contrary contained herein, in the event of (i) a Change of Control (as
hereinafter defined), (ii) any acquisition of the Corporation by means of merger
or other form of corporate reorganization in which outstanding shares of the
Corporation are exchanged for securities or other consideration issued, or
caused to be issued, by the acquiring corporation or its subsidiary (other than
a mere reincorporation transaction), or (iii) the sale or transfer of all or
substantially all of the assets of the Company to another person, (each, a
"Major Event"), the Company shall provide written notice of such occurrence to
the Holder (the "Change of Control Notice") at least ten (10) business days
prior to the occurrence of such Major Event. The Holder may, within ten (10)
business days of receipt of a Change of Control Notice (the "Notice Cutoff
Date"), exercise the Warrant and purchase, in accordance with the procedures set
forth in Section 3 hereof, up to such number of Shares as the Holder may be
entitled to purchase hereunder, provided however, the Holder (i) may condition
the exercise of
-14-
the Warrant and the purchase of the Shares upon consummation of the Major Event,
(ii) may require that the acquisition of the Shares and tender of the Warrant
Price occur contemporaneously with the consummation of the Major Event, and
(iii) may offset and/or credit against the Warrant Price any consideration to be
received by the Holder as part of the consummation of the Major Event.
For purposes of this Agreement, Change of Control shall mean the acquisition
by any person or group (as such term is defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, (the "1934 Act") of beneficial
ownership (as such term is defined in Rule 13d-3 promulgated under the 0000 Xxx)
of more than 25% of the outstanding shares of Common Stock of the Company.
SECTION 8. Obtaining Stock Exchange Listings. The Company will from time to
---------------------------------
time take all action which may be necessary so that the Shares, immediately upon
their issuance upon the exercise of Warrants, will be listed on the principal
securities exchanges and markets within the United States of America, if any, on
which other shares of Common Stock are then listed.
SECTION 9. Fractional Interests. The Company shall be required to issue
--------------------
fractional Shares on the exercise of the Warrant.
SECTION 10. No Rights as Stockholder. Nothing contained in this Agreement or
------------------------
in the Warrant shall be construed as conferring upon the Holder or its
transferee any rights as a stockholder of the Company.
SECTION 11. Notices. Any notice pursuant to this Agreement by the Company or
-------
by the Holder shall be in writing and shall be deemed to have been duly given if
delivered personally with written receipt acknowledged or mailed by certified
mail five days after mailing, return receipt requested:
If to the Holder:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 0000
Xxxxxx, XX 00000
Attention:____________________
If to the Company:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
-15-
Each party hereto may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
Upon any adjustment of the Warrant Price pursuant to Section 7.1, the Company
shall promptly thereafter (i) cause to be filed with the Company a certificate
of a firm of independent public accountants of recognized standing selected by
the Board of Directors of the Company (who may be the regular auditors of the
Company) setting forth the Warrant Price after such adjustment and setting forth
in reasonable detail the method of calculation and the facts upon which such
calculations are based and setting forth the number of Shares (or portion
thereof) issuable after such adjustment in the Warrant Price, upon exercise of a
Warrant and payment of the adjusted Warrant Price, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at his 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 11.
In case: (a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or warrants;
(b) the Company shall authorize the distribution to all holders of shares of
Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends payable in shares of Common Stock or distributions referred
to in subsection (1) of Section 7.1 hereof); (c) of the voluntary or involuntary
dissolution, liquidation or winding up of the Company; or (d) the Company
proposes to take any action (other than actions of the character described in
Section 7.1(a)) which would require an adjustment of the Warrant Price pursuant
to Section 7; then the Company shall cause to be given to each of the registered
holders of the Warrant Certificates at his address appearing on the Warrant
register, at least 20 days prior to the applicable record date hereinafter
specified, or promptly 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 shares of Common Stock 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 shares of Common Stock. The failure to give the notice required by
this Section 11 or any defect therein shall not affect the legality or validity
of any distribution, right, option, warrant, conveyance, transfer, dissolution,
liquidation or winding up, or the vote upon any action.
-16-
SECTION 12. Successors. All the covenants and provisions of this Agreement
----------
by or for the benefit of the Company or the Holder shall bind and inure to the
benefit of their respective successors, heirs and permitted assigns.
SECTION 13. Benefits of this Agreement. Except as otherwise provided herein,
--------------------------
nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Holder any legal or equitable right,
remedy or claim under this Agreement, and this Agreement shall be for the sole
and exclusive benefit of the Company and the Holder.
SECTION 14. Further Assurances. The Company hereby agrees promptly to
------------------
execute, at the Holder's reasonable request after the issuance of the Warrant,
any documents or materials related to the transactions contemplated by this
Agreement.
SECTION 15. Time of Essence. Time is of the essence in interpreting and
---------------
performing this Agreement.
SECTION 16. Severability. In case any provision in this Agreement shall be
------------
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired hereby.
SECTION 17. Jury Trial; Jurisdiction. The parties waive the right to a jury
------------------------
trial with respect to any controversy or claim between or among the parties
hereto, including but not limited to those arising out of or relating to this
Agreement, including any claim based on or arising from an alleged tort.
SECTION 18. Governing Law. This Agreement shall be governed by and
-------------
interpreted in accordance with the laws of the State of Delaware. The parties,
in acknowledgment that they have been represented by counsel and that this
Agreement has been carefully negotiated, agree that the construction and
interpretation of this Agreement and other documents entered into in connection
herewith shall not be affected by the identity of the party under whose
direction or at whose expense this Agreement and such documents were prepared or
drafted.
SECTION 19. Attorneys' Fees. In the event of any disputes arising hereunder
---------------
concerning the interpretation or enforcement of this Agreement, a party shall be
entitled to recover from the party determined to be in breach its attorneys'
fees, costs and expenses.
SECTION 20. Specific Performance. Each of the parties shall be entitled to
--------------------
specific performance in the event of a breach by the other party of their
respective obligations hereunder. Such remedy shall be in addition to, but shall
not replace, any other remedies which might be available under this Agreement,
at law or in equity, including without limitation, actions for attorney's fees.
-17-
SECTION 21. Registration Rights. The Shares issuable upon exercise of this
-------------------
Warrant are subject to certain rights and restrictions pursuant to the
Registration Rights Agreement and the Shareholders Agreement.
SECTION 22. Representations of Company. The Company represents and warrants
--------------------------
to Holder as follows:
22.1. Corporate Organization and Good Standing. The Company is a corporation
----------------------------------------
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and is duly qualified and in good standing in all other states
where the nature of its business or operations or the ownership of its property
requires such qualification.
22.2. Corporate Approval. The Company has full corporate power and authority
------------------
to execute and deliver this Agreement and all other documents and agreements to
be executed and delivered by it hereunder ("Transaction Documents") and to
consummate the transactions contemplated hereby. The board of directors of the
Company has duly and validly approved the execution, delivery, and performance
of this Agreement and the transactions contemplated herein. No other corporate
or legal proceedings on the part of the Company are necessary to approve and
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement constitutes, and the other
Transaction Documents, when executed, will constitute, the legal, valid, and
binding obligation and agreement of the Company enforceable against the Company
in accordance with its terms, subject only to the general law of creditors'
rights.
SECTION 23. Certain Terms. As used herein, the following terms shall have
-------------
the meanings set forth below:
"Common Stock" shall mean (A) the class of stock designated as the Class A
------------
Common Stock and Class B Common Stock of the Company at the date of this
Agreement, or (B) any other class of stock resulting from successive changes or
reclassifications of such Common Stock.
"Common Stock Equivalents" shall mean (without duplication with any other
------------------------
Common Stock or Common Stock Equivalents) rights, warrants, options, convertible
securities or indebtedness, exchangeable securities or indebtedness, or other
rights, exercisable for or convertible or exchangeable into, directly or
indirectly, Common Stock and securities convertible or exchangeable into Common
Stock, whether at the time of issuance, upon the passage of time, or upon the
occurrence of some future event.
-18-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
"HOLDER" /s/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
"COMPANY" XXXXXX HOLDINGS, INC.,
Delaware corporation
By: /s/ XXXXXX X. XXXX
------------------------
Name: Xxxxxx X. Xxxx
Title: President
-19-
WARRANT NO. 9
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED, MORTGAGED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (II) UPON RECEIPT OF
AN OPINION OF THE COUNSEL TO THE TRANSFEROR, REASONABLY ACCEPTABLE TO THE
ISSUER, THAT SUCH SALE, TRANSFER, PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION IS
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION. BY ITS ACCEPTANCE
HEREOF, THE HOLDER OF THIS CERTIFICATE REPRESENTS THAT IT IS ACQUIRING SUCH
SECURITIES FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TOWARD THE
DISTRIBUTION OR RESALE THEREOF, AND AGREES TO COMPLY WITH THE WARRANT AGREEMENT,
DATED AS OF DECEMBER 27, 1996, BY AND AMONG XXXXXX HOLDINGS, INC., A DELAWARE
CORPORATION (THE "COMPANY") AND XXXXX X. XXXXXX (THE "HOLDER"), THE REGISTRATION
RIGHTS AGREEMENT DATED AS OF DECEMBER 27, 1996 BY AND AMONG THE COMPANY AND THE
HOLDER, AND THE SHAREHOLDERS AGREEMENT DATED AS OF DECEMBER 27, 1996 BY AND
AMONG THE COMPANY, THE HOLDER AND OTHER WARRANTHOLDERS AND SHAREHOLDERS OF THE
COMPANY."
WARRANT TO PURCHASE SHARES
OF CLASS A COMMON STOCK OF
XXXXXX HOLDINGS, INC. $.01 PAR VALUE
Exercisable commencing December 27, 1996;
Void after December 26, 2006;
THIS CERTIFIES that, for value received, Xxxxx X. Xxxxxx ("Holder"), or
registered assigns, is entitled, subject to the terms and conditions set forth
in this Warrant, to purchase from Xxxxxx Holdings, Inc., a Delaware corporation
(the "Company"), up to 336.5132 shares of Class A Common Stock, $0.01 par value
("Shares"), of the Company commencing on the Exercisability Date, and continuing
up to 5 p.m. Eastern time on December 26, 2006, at an initial per share price of
$2,000. This Warrant is issued pursuant to a Warrant Agreement between the
Holder and the Company dated as of December 27, 1996, the terms of which are
incorporated by reference herein and made a part of this instrument and are
referred to for a description of the rights limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders of the Warrant.
This Warrant is also subject to the terms and obligations of the Shareholders
Agreement dated December 27, 1996 by and among the Company, the Holder and the
other warrantholders and shareholders of the Company. For purposes hereof, the
"Exercisability Date" shall mean the earliest to occur of the following dates:
-1-
(i) December 27, 1999; (ii) the date when a Change of Control Notice (as defined
in Section 7.4 of the Warrant Agreement) is given; (iii) the date that certain
Consulting and Strategic Services Agreement dated December 27, 1996 by and
between the Company and EUF Xxxxxx X.X. is terminated (with or without cause);
or (iv) the date upon which a registered public offering under the Securities
Act of 1933, as amended, of equity interests in the Company is made pursuant to
a registration statement on Form S-1 or a successor form, but in no event
earlier than June 27, 1998 in the event such offering occurs prior to such date.
This Warrant may be exercised by the holder hereof, in whole or in part by the
presentation and surrender of this Warrant with the form of Election to Purchase
duly executed, at the principal office of the Company (or at such other address
as the Company may designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
to the Company of the purchase price in cash, by cashier's check, or by wire
transfer or partially in cash, cashier's check or wire transfer and the
remainder pursuant to Section 3 of the Warrant Agreement. Certificates for the
Shares so purchased shall be delivered or mailed to the Holder promptly after
this Warrant shall have been so exercised, and, unless this Warrant has expired
or has been exercised in full, a new Warrant identical in form but representing
the number of Shares with respect to which this Warrant shall not have been
exercised shall also be issued to the holder hereof.
The Warrant Agreement provides that upon the occurrence of certain events the
Warrant Price set forth on the face hereof may, subject to certain conditions,
be adjusted. If the Warrant Price is adjusted, the Warrant Agreement provides
that the number of shares of Common Stock issuable upon the exercise of each
Warrant shall be adjusted. Fractions of a share of Common Stock may be issued
upon the exercise of any Warrant.
Nothing contained herein shall be construed to confer upon the holder of this
Warrant, as such, any of the rights of a shareholder of the Company.
-2-
Dated: December 27, 1996 XXXXXX HOLDINGS, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXX
-------------------------
Name: Xxxxxx X. Xxxx
Title: President
-3-
