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EXHIBIT 10.52
WARRANT AGREEMENT dated as of June 1, 1997, between The Xxxxx Group,
Inc., a Delaware corporation (the "Company"), and Xxxxx X. Duck (hereinafter
referred to as the "Warrant Holder").
W I T N E S S E T H
WHEREAS, the Company proposes to issue to the Warrant Holder
warrants ("Warrants") to purchase up to 46,200 shares (the "Shares") of common
stock of the Company, $.10 par value (the "Common Stock"); and
WHEREAS, the Warrant Holder has provided, and continues to
provide consulting services to the Company, and the Warrants issued pursuant to
this Agreement are being issued by the Company to the Warrant Holder, in
consideration for, and as part of the Warrant Holder's compensation in
connection with said consulting services;
NOW, THEREFORE, in consideration of the premises, the payment
by the Warrant Holder to the Company of Twenty Five Dollars ($25.00), the
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Grant.
The Warrant Holder is hereby granted the right to
purchase, at any time from July 1, 1997 until 5:00 P.M., Waco, Texas, time, on
June 1, 2001 (the "Warrant Exercise Term"), up to 46,200 Shares at an initial
exercise price (subject to adjustment as provided in Article 8 hereof) of $4.12
per Share.
2. Warrant Certificates.
The warrant certificate (the "Warrant Certificate")
delivered pursuant to this Agreement, is attached hereto and made a part hereof,
with such
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appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. Exercise of Warrants.
3.1 Cash Exercise. The Warrants initially are
exercisable at a price of $4.12 per Share, payable in cash or by certified or
official bank check made payable to the order of the Company, or any combination
of cash or such check, subject to adjustment as provided in Article 8 hereof.
Upon surrender of the Warrant Certificate with the annexed Form of Election to
Purchase, duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the Shares purchased, at the Company's principal
offices in Waco, Texas (presently located at 0000 X. Xxxxxxxxxx Xxxxx Xxxxx,
Xxxx, Xxxxx 76707) the Warrant Holder shall be entitled to receive a certificate
or certificates for the Shares so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Warrant Holder, in
whole or in part (but not as to fractional shares of the Common Stock). In the
case of the purchase of less than all of the Shares purchasable under any
Warrant Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the Shares purchasable thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of
certificates for the Shares shall be made forthwith (and in any event within
three business days thereafter) without charge to the Warrant Holder including,
without limitation, any transfer tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of
Article 5 hereof) be issued in the name of, or in such names as may be directed
by, the Warrant Holder; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any such certificates in a name other than that
of the Warrant Holder, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have
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paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the
Shares shall be executed on behalf of the Company by the attested signature of
the Warrant Holder. Warrant Certificates shall be dated the date of execution by
the Company upon initial issuance, division, exchange, substitution or transfer.
The Warrant Certificates and, upon exercise of the Warrants,
in part or in whole, certificates representing the Shares shall bear a legend
substantially similar to the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and may not
be offered or sold except (i) pursuant to an effective registration statement
under the Act, (ii) to the extent applicable, pursuant to Rule 144 under the Act
(or any similar rule under such Act relating to the disposition of securities),
or (iii) upon the delivery by the holder to the Company of an opinion of
counsel, reasonably satisfactory to counsel to the Company, stating that an
exemption from registration under such Act is available."
5. Restriction on Transfer of Warrants.
The Warrants shall not be assignable or transferable by the
Warrant Holder, except by will or by the laws of descent and distribution.
During the life of the Warrant Holder, the Warrants shall be exercisable only by
him.
The Warrant Holder, by his acceptance thereof, covenants and
agrees that the Warrants are being acquired as an investment and not with a view
to the distribution thereof, and that the Warrants may not be sold, transferred
assigned, hypothecated or otherwise disposed of, in whole or in part.
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6. Price.
6.1 Initial and Adjusted Exercise Price. The initial
exercise price of each Warrant shall be $4.12 per Share. The adjusted exercise
price shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Article 8 hereof.
6.2 Exercise Price. The term "Exercise Price" herein
shall mean the initial exercise price or the adjusted exercise price, depending
upon the context.
7. Registration.
The Warrants and the Shares have not been registered
for purposes of public distribution under the Securities Act of 1933, as amended
(the "Act").
8. Adjustments of Exercise Price and Number of Shares.
8.1 Computation of Adjusted Price. In case the
Company shall at any time after the date hereof pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, then upon such
dividend or distribution the Exercise Price in effect immediately prior to such
dividend or distribution shall forthwith be reduced to a price determined by
dividing:
(a) an amount equal to the total number of
shares of Common Stock outstanding immediately prior to such dividend or
distribution multiplied by the Exercise Price in effect immediately prior to
such dividend or distribution, by
(b) the total number of shares of Common
Stock outstanding immediately after such issuance or sale.
For the purposes of any computation to be made in
accordance with the provisions of this Section 8.1, the Common Stock issuable by
way of dividend or other distribution on any stock of the Company shall be
deemed to have been issued
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immediately after the opening of business on the date following the date fixed
for the determination of stockholders entitled to receive such dividend or other
distribution.
8.2 Subdivision and Combination. In case the Company
shall at any time subdivide or combine the outstanding shares of Common Stock,
the Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
8.3 Adjustment in Number of Shares. Upon each
adjustment of the Exercise Price pursuant to the provisions of this Article 8,
the number of Shares issuable upon the exercise of each Warrant shall be
adjusted to the nearest full Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
8.4 Reclassification, Consolidation, Merger, etc. In
case of any reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation), or in the case of a sale or conveyance to another
corporation of the property of the Company as an entirety, the Warrant Holder
shall thereafter have the right to purchase the kind and number of shares of
stock and other securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance as if the Holders were the
owners of the Common Stock underlying the Warrants immediately prior to any such
events at a price equal to the product of (x) the number of shares issuable upon
exercise of the Warrants and (y) the Exercise Price in effect immediately prior
to the record date for such reclassification, change, consolidation, merger,
sale or conveyance as if the Warrant Holder had exercised the Warrants.
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8.5 Determination of Outstanding Shares of Common
Stock. The number of shares of Common Stock at any one time outstanding shall
include the aggregate number of shares issued or issuable upon the exercise of
options, rights, warrants, and upon the conversion or exchange of convertible or
exchangeable securities.
8.6 Dividends and Other Distributions with Respect to
Outstanding Securities. In the event that the Company shall at any time prior to
the exercise of all Warrants declare a dividend (other than a dividend
consisting solely of shares of Common Stock or a cash dividend or distribution,
or otherwise distribute to its shareholders any monies, assets, property,
rights, evidences of indebtedness, securities (other than shares of Common
Stock), whether issued by the Company or by another person or entity, or any
other thing of value, the Warrant Holder, as to the unexercised Warrants, shall
thereafter be entitled, in addition to the shares of Common Stock or other
securities receivable upon the exercise thereof, to receive, upon the exercise
of such Warrants, the same monies, property, assets, rights, evidences of
indebtedness, securities or any other thing of value that they would have been
entitled to receive at the time of such dividend or distribution. At the time of
any such dividend or distribution, the Company shall make appropriate reserves
to ensure the timely performance of the provisions of this Subsection 8.6.
8.7 Subscription Rights for Shares of Common Stock or
Other Securities. In the case the Company or an affiliate of the Company shall
at any time after the date hereof and prior to the exercise of all the Warrants
issue any rights to subscribe for shares of Common Stock or any other securities
of the Company or of such affiliates to all the shareholders of the Company, the
Warrant Holder, as to the unexercised Warrants, shall be entitled, in addition
to the shares of Common Stock or other securities receivable upon the exercise
of such Warrants, to receive such rights at the time such rights are distributed
to the other shareholders of the Company.
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9. Exchange and Replacement of Warrant Certificates. Each
Warrant Certificate is exchangeable without expense, upon the surrender hereof
by the Warrant Holder at the principal executive office of the Company, for a
new Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Shares in such denominations as shall be
designated by the Warrant Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrants, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates
representing fractions of shares of Common Stock and shall not be required to
issue scrip or pay cash in lieu of fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock.
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Common Stock as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any shareholder.
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12. Notices to Warrant Holder.
Nothing contained in this Agreement shall be construed as
conferring upon the Warrant Holder the right to vote or to consent or to receive
notice as a shareholder in respect of any meetings of shareholders for the
election of directors or any other matter, or as having any rights whatsoever as
a shareholder of the Company. If, however, at any time prior to the expiration
of the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holder of
its shares of Common Stock for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatments of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option, right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation or merger) or a
sale of all or substantially all of its property, assets and business
as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer book for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer
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books, as the case may be. Failure to give such notice or any defect therein
shall not affect the validity of any action taken in connection with the
declaration of payment of such dividend or distribution, or the issuance of any
convertible or exchangeable securities or subscriptions rights, options or
warrants, or any proposed dissolution, liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the Warrant Holder, to the address as shown
on the books of the Company; or
(b) If to the Company, to the address set forth in
Section 3 of this Agreement or to such other address as the
Company may designate by notice to the Warrant Holder.
14. Supplements and Amendments.
The Company and the Representative may from time to time
supplement or amend this Agreement without the approval of the Warrant Holder in
order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Holder may deem necessary or desirable and
which the Company and the Warrant Holder deem not to adversely affect the
interests of the Warrant Holder.
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15. Successors.
All the covenants and provisions of this Agreement by or for
the benefit of the Company and the Warrant Holder inure to the benefit of their
respective successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of business on
June 1, 2003. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date upon the expiration of the Warrant Exercise Term if no Warrants
have been exercised or when all Warrants have been exercised and all the Shares
issuable upon exercise of the Warrants have been resold to the public.
17. Governing Law.
This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Texas and
for all purposes shall be construed in accordance with the laws of said State.
18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the Warrant 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 Warrant Holder.
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19. Counterparts.
This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
[SEAL] THE XXXXX GROUP, INC.
By:
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Name:
Title:
Attest:
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Xxxxx X. Duck
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