NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER
THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THIS WARRANT AGREEMENT AND PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENT, AND, IF AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE
DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on November 22, 1999.
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXX XXXXX, INC.
WARRANT dated and effective as of November 22, 1994, by and
between XXXXXXX XXXXX, INC. (the "Company"), a New York corporation with
offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXXXXX XXXXX (the
"Warrantholder"), an individual residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
FOR VALUE RECEIVED, the Company hereby certifies that the
Warrantholder is entitled to purchase from the Company, at any time or from
time to time commencing November 22, 1994, and prior to 5:00 P.M., Eastern
Standard Time, on November 22, 1999, 640,000 fully paid and nonassessable
shares of Common Stock, par value $0.01 per share, of the Company, at $4.62 per
share for an aggregate purchase price of $2,956,800.00. Hereinafter, (i) said
Common Stock, together with any other equity securities which may be issued by
the Company with respect thereto or in substitution therefor, is referred to as
the "Common Stock," (ii) the shares of the Common Stock purchasable hereunder
are referred to as the "Warrant Shares," (iii) the aggregate purchase price
payable hereunder for the Warrant Shares is referred to as the "Aggregate
Warrant Price," (iv) the price payable hereunder for each of the Warrant Shares
is referred to as the "Per Share Warrant Price," and (v) this Warrant, and all
warrants hereafter issued in exchange or substitution for this Warrant are
referred to as the "Warrant." The number of Warrant Shares for which this
Warrant is exercisable is subject to adjustment as hereinafter provided.
1. This Warrant may be exercised, in whole at any time or
in part from time to time, commencing November 22, 1994, and prior to 5:00
P.M., Eastern Standard Time, on November 22, 1999, by the Warrantholder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) at the address of the Company set forth on the first page hereof,
evidencing proper payment of the Aggregate Warrant Price, or the proportionate
part thereof if this Warrant is exercised in part.
2. (a) The issuance of this Warrant was
approved by, and the Per Share Warrant Price of $4.62 was determined by, the
Special Committee of the Company's Board of Directors on September 27, 1994
(the "Committee Approval Date"), subject to approval of the Company's
shareholders. The Company's shareholders approved the issuance of this Warrant
on November 22, 1994. The Per Share Warrant Price represents a 20% premium
over the average closing price of the Common Stock on the New York Stock
Exchange over the five trading day period commencing September 27, 1994.
(b) To assist the Company increase the
availability under its working capital credit line with its bank in excess of
the amount available under the Company's borrowing base formula, the
Warrantholder agreed to provide credit support to the Company in 1994 in the
form of a letter of credit (the "Letter of Credit"). The Warrantholder
initially provided the Letter of Credit in the amount of $3,000,000 on April
15, 1994 which was increased to $5,000,000 on June 14, 1994 and further
increased on September 13, 1994 to $7,200,000. The expiration date of the
Letter of Credit, initially in effect through October 15, 1994, was extended to
April 15, 1995 (the "Extension"). In consideration for the Extension, the
Special Committee of the Company's Board of Directors authorized, and the
Company's shareholders approved, the issuance of these Warrants to the
Warrantholder. The Warrantholder has agreed to forfeit a pro rata portion of
this Warrant if the Letter of Credit is terminated before April 15, 1995, i.e.
for each full thirty day period prior to April 15, 1995 that the Letter of
Credit is not outstanding, the Warrantholder shall forfeit one sixth of the
Warrant Shares.
3. In no event shall this Warrant be converted, and this
Warrant shall no longer be exercisable, at any time after five years from the
date hereof. Any conversion of this Warrant may be either in whole at any time
or in part at any time or from time to time.
4. Neither the Warrantholder nor the Warrantholder's legal
representatives, legatees or distributees shall be or be deemed to be the
holder of any shares of the Common Stock covered by this Warrant unless and
until certificates for such shares have been issued. Upon payment of the
purchase price thereof, shares issued upon conversion of this Warrant shall be
validly issued, fully paid and nonassessable.
5. In order to exercise this Warrant, the Warrantholder
shall give a signed written notice of intent to exercise this Warrant to the
Treasurer of the Company specifying the number of shares of the Common Stock
with respect to which this Warrant is being exercised, and accompanied by
payment to the Company of the full amount of the Aggregate Warrant Price for
the number of shares of Common Stock so specified. If permitted under
applicable securities laws, all or any portion of such payment may be made
through a "cashless exercise" arrangement with a broker designated by the
Warrantholder by delivery of shares of Common Stock having a fair market value
(as hereinafter determined) on the date of delivery equal to the portion of the
Aggregate Warrant Price so paid; provided, that in connection therewith, the
Warrantholder shall certify to the Company that such delivery will not result
in "short-swing" profit to her under Section 16 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder ("Section 16").
For the purposes hereof, the fair market value of a
share of the Common Stock on any date shall be equal to the closing sale price
of a share of the Common Stock as published by the national securities exchange
on which the shares of the Common Stock are primarily traded on such date or,
if there is no such sale of the Common Stock on such date, the average of the
bid and asked price on such exchange at the close of trading on such date or,
if the shares of the Common Stock are not listed on a national securities
exchange on such date, the average of the bid and asked prices in the over the
counter market on such date or, if the Common Stock is not traded on a national
securities exchange or the over the counter market, the fair market value of a
share of the Common Stock on such date as shall be determined in good faith by
the Company.
6. (a) Unless the shares to be issued upon the
exercise of the Warrant shall be registered under the Securities Act of 1933,
as amended (the "Act"), prior to the issuance thereof (which the Company shall
use its best efforts to do at its expense at the Warrantholder's request), the
Warrantholder shall, as a condition to the Company's obligation to issue such
shares, give a representation in writing that she is acquiring such shares for
her own account as an investment and not with a view to, or for sale in
connection with, the distribution of such shares.
(b) In the event of the death of the Warrantholder,
an additional condition of exercising the Warrant shall be the delivery to the
Company of such tax waivers and other documents as the Company shall reasonably
determine. The executors, administrators, legal representatives, distributees
and legatees of the Warrantholder are, after the death of the Warrantholder,
referred to as the Warrantholder with respect to this Warrant.
(c) The Warrantholder shall, as an additional
condition of converting this Warrant, make appropriate arrangements with the
Company for the payment of all federal, state or local withholding taxes
applicable as a result of the exercise of this Warrant. If permitted under
applicable securities laws, all or any portion of such payment may be made
through a "cashless exercise" arrangement with a broker designated by the
Warrantholder by delivery of shares of Common Stock having a fair market value
(as determined pursuant to paragraph 5 hereof) on the date of delivery equal to
the portion of such taxes so paid; provided, that in connection therewith the
Warrantholder shall certify to the Company that such delivery will not result
in "short-swing" profit to her under Section 16.
The Company covenants and agrees that it will pay, when
due and payable, any and all Federal and state stamp, original issue or similar
taxes that may be payable in respect of the issue of any Warrant Shares or
certificates therefor.
7. The Company agrees that, prior to the expiration of
this Warrant, the Company will at all times have authorized and in reserve, and
will keep available, solely for issuance or delivery upon the exercise of this
Warrant, the shares of the Common Stock as from time to time shall be
receivable upon the exercise of this Warrant.
8. In the event that a dividend shall be declared upon the
Common Stock payable in shares of the Common Stock, the Warrant Shares shall be
adjusted by adding to each such share the number of shares which would be
distributable thereon if such shares had been outstanding on the date fixed for
determining the shareholders entitled to receive such stock dividend. In the
event that the outstanding shares of the Common Stock shall be changed into or
exchanged for a different number or kind of shares of stock and/or other
securities of the Company or of another corporation or cash or other property,
whether through reorganization, recapitalization, extraordinary dividend, stock
split-up, combination of shares, sale of assets, spin off or merger or
consolidation in which the Company is the surviving corporation, then, there
shall be substituted for each Warrant Share the number and kind of shares of
stock and/or other securities, cash or other property into which each
outstanding share of the Common Stock shall be so changed or for which each
such share shall be exchanged. In the event that there shall be any change,
other than as specified in this paragraph 8, in the number or kind of
outstanding shares of the Common Stock, or of any stock or other securities
into which the Common Stock shall have been changed, or for which it shall have
been exchanged, then, the Board of Directors of Company shall, in its
reasonable discretion, equitably adjust this Warrant with respect to the number
or kind of Warrant Shares and the Warrant Price, such adjustment to be made by
the Company and notice thereof shall be delivered to the Warrantholder within
30 calendar days thereafter, accompanied by a certificate of the Chief
Financial Officer of the Company setting forth such adjustment, the method of
calculation of such adjustment and the facts upon which such adjustment was
based, all in reasonable detail. In the case of any such substitution or
adjustment as provided for in this paragraph 8, the Warrant Price for each
Warrant Share shall be the Warrant Price for all shares of stock or other
securities which shall have been substituted for such Warrant Share or to which
such shares shall have been adjusted in accordance with the provisions in this
paragraph 8. No adjustment or substitution provided for in this paragraph 8
shall require the Company to sell a fractional share hereunder.
9. The existence of this Warrant shall not affect in any
way the right or power of the Company or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business, or any merger or consolidation
of the Company, or any issue of bonds, debentures, preferred or prior
preference stock ahead of or affecting the Common Stock or the rights thereof,
or dissolution or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or proceeding
whether of a similar character or otherwise.
10. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant if mutilated, the Company shall
execute and deliver to the Warrantholder a new Warrant of like date, tenor and
denomination.
12. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be mailed by certified
mail, return receipt requested, or delivered against receipt to the party to
whom it is to be given at the address of such party set forth in the preamble
to this Warrant (or to such other address as the party shall have furnished in
writing in accordance with the provisions of this paragraph 12). Notice to the
estate of the Warrantholder shall be sufficient if addressed to the
Warrantholder as provided in this paragraph 12. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
13. Except as may be permitted by Rule 16b-3 promulgated
under the Exchange Act for transfers to a trust or similar estate planning
vehicle, this Warrant is not transferable otherwise than by will or the laws of
descent and distribution and may be exercised, during the lifetime of the
Warrantholder, only by her or, in the event of her disability, her duly
appointed guardian or conservator. The Warrantholder's rights shall not be
subject to commutation, encumbrance, or the claims of the Warrantholder's
creditors, and any attempt to do any of the foregoing shall be void. The
provisions of this Warrant shall be binding upon and inure to the benefit of
the Warrantholder and her heirs and personal representatives under this
Warrant.
14. This Warrant does not create, and shall not be
construed as creating, any rights enforceable by any person not a party to this
Warrant (except as expressly provided in this Warrant).
IN WITNESS WHEREOF, XXXXXXX XXXXX, INC. has caused this Warrant
to be signed by a duly authorized officer the day and year first above written.
ATTEST: XXXXXXX XXXXX, INC.
\s\ Xxxx X. Xxxxxxxxx By: \s\ Xxxxx X. Xxxxxx
--------------------------- -----------------------------
Xxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx
Treasurer and Assistant Secretary Title: Executive Vice President-
Finance and Administration and
Chief Financial Officer
SUBSCRIPTION
The undersigned, ,
pursuant to the provisions of the foregoing Warrant, hereby agrees to subscribe
for the purchase of shares of the Common Stock of XXXXXXX
XXXXX, INC. covered by said Warrant, and makes payment therefor in full at the
price per share provided by said Warrant.
Dated ____________ Signature _____________________
Address _____________________
_____________________
