1
CONFIDENTIAL TREATMENT REQUESTED
STOCK WARRANT AGREEMENT
STOCK WARRANT AGREEMENT ("Agreement") dated as of August 1, 1996,
between SHOREWOOD PACKAGING CORPORATION, A DELAWARE CORPORATION, with its office
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the "Company") and [*]
WHEREAS, the Board of Directors of the Company has determined that
it is in the best interest of the Company and its stockholders to grant to [*]
an option to purchase 200,000 shares of the Common Stock, par value $.01 per
share (the "Common Stock") of the Company:
NOW, THEREFORE, the parties agree as follows:
1. Grant of Option
1.1 The Company grants to [*], on the terms and conditions hereinafter set
forth, an option (the "Option") to purchase two hundred thousand (200,000)
shares of Common Stock of the Company, subject to adjustment as provided in
Section 12 hereof (the "Option Shares").
1.2 The Option does not qualify for "ISO" treatment to the extent
permitted by Section 422A of the Internal Revenue Code of 1986, as amended.
1.3 This Option and Option Shares when issued, are not, will not and
subject to certain registration rights granted herewith, are not required to be
registered under the Securities Act of 1933, as amended (the "Securities Act")
but the Option Shares, may, subject to applicable rules and regulations, be
listed upon any securities exchange upon which the Company's Common Stock as
listed at the time of such issuance and sale.
2. Price for Shares
2.1 The exercise price for the Option Shares shall be Fifteen Dollars
($15) per Option Share, subject to adjustment as provided in Section 12 hereof
(the "Exercise Price"). As used
-------------------------
[*] Portions of this document have been omitted pursuant to an Application for
Confidential Treatment. Such omissions have been filed separately with the
Securities and Exchange Commission together with such Application for
Confidential Treatment.
2
herein, the term "Purchase Price" shall mean, at any time, the then current
Exercise Price multiplied by the then current number of Option Shares for which
the Option is exercisable.
3. Period of Option
3.1 This Option will be exercisable, in whole and not in part, beginning
on the date hereof and expiring on July 31, 2001, at 5 p.m. EDT on such date
(the "Period").
4. Exercise of Option
4.1 The Option herein granted shall be exercisable within the Period by
notice in writing from the holder thereof to the Company which notice shall be
signed by a duly authorized representative of the holder. Such notice shall be
accompanied, pursuant to Section 2 hereof, by payment in full made in cash or
certified or bank check payable to the Company for the full amount of the
Purchase Price.
4.2 Upon exercise of the Option, the holder of the Option shall be deemed
to be the holder of record of the Common Stock issuable upon such exercise,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing such Common Stock shall not then have been actually
delivered to the holder. As soon as practicable after exercise of this Option,
the Company shall issue and deliver to the holder a certificate or certificates
for the Common Stock issuable upon such exercise, registered in the name of the
holder or its designee.
4.3 Subject to Sections 6 and 7 below, if and when the Option is
exercised, the certificates to be issued evidencing shares of the Company's
Common Stock shall bear a legend substantially as follows:
"The shares evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended. No transfer, sale or
other disposition of these shares may be made except pursuant to
Rule 144 under the Securities Act of 1933, as amended, or unless a
registration statement with respect to these shares has become
effective under said Act or the Company is furnished with an opinion
of counsel satisfactory in form and substance to the Company that
such registration is not required."
4.4 The Company hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of this
2
3
Option, free from preemptive rights, such number of authorized but unissued or
treasury shares of its common stock as shall be required for issuance or
delivery upon exercise of this Option.
4.5 The Company further agrees that: (i) it will not by amendment of its
Certificate of Incorporation or through reorganization, consolidation, merger,
dissolution or sale of its assets, or by any other voluntary act, avoid or seek
to avoid the observance or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by the Company; and (ii) it
will fully cooperate with the holder in preparing any filings or applications
and provide such information to the holder or any regulatory authority as may be
necessary to obtain any approvals or fulfill any filing requirements in
connection with the holder's exercise of this Option or in connection with this
Agreement.
5. Transferability of Option
5.1 This Option shall be assignable or transferable in whole but not in
part, upon written notice to the Company. No such transfer shall be effective as
against the Company unless the holder first gives written notice thereof to the
Company. Such notice shall set forth the name, address, phone number and a
contact person of the transferee. A transferee of the Option shall become the
holder thereof. Any transfer of the Option shall be subject to all state and
federal securities laws.
6. Demand Registration
6.1 Upon the written request of holder that the Company effect the
registration under the Securities Act of all the Option Shares the Company will
use its best efforts to effect the registration under the Securities Act of the
Option Shares.
6.2 Whenever the Company shall effect a registration pursuant to this
Section 6 in connection with an offering by one or more holders of registrable
securities, no securities other than registrable securities shall be included
among the securities covered by such registration unless the managing
underwriter, if any, of such offering shall have advised each selling holder of
registrable securities to be covered by such registration in writing that the
inclusion of such other securities would not adversely affect such offering. In
addition, if any of the registrable securities covered by such registration are
to be sold in an underwritten offering, any other person who wishes to include
his securities in the registration must agree in writing to sell his securities
on the same terms and conditions as apply to the registrable securities being
sold.
3
4
6.3 Registration under this Section shall be on such appropriate
registration form of the Securities and Exchange Commission ("Commission") as
shall be selected by the Company in its reasonable discretion.
6.4 The Company will pay all registration costs and expenses in connection
with a single registration requested pursuant to this Section. Such
registration may include the Option Shares and other registrable shares of the
Company. The cost of any and all subsequent registrations of the Option Shares
shall be borne by holder.
6.5 A registration requested pursuant to this Section shall not be deemed
to have been effected, and the provisions of Section 6.1 shall not be deemed to
have been complied with, (i) unless a registration statement with respect
thereto has become effective, or (ii) if after it has become effective, such
registration is the subject of any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason not attributable to the selling holders and has not thereafter become
effective.
6.6 If, in the good faith business judgment of the Board of Directors of
the company, the company's ability to consummate (upon favorable terms and
conditions) a significant pending merger, acquisition, sale of assets or other
similar business transaction (each, a "Significant Event") would be adversely
affected by the filing of a registration statement which was requested pursuant
to this section then, in such event, the Company may elect not to file such
registration statement; provided, however, that such period of delay shall not
exceed the lesser of (i) 90 days, or (ii) the period of time during which the
Significant Event continues to exist.
6.7 If any of the Registrable Securities covered by a registration
statement which was initiated pursuant to this Section are to be sold in an
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by the Company; provided,
however, that such investment bankers and managers must be reasonably
satisfactory to the holders of a majority of the registrable securities included
in such offering.
7. Piggy-Back Registration
7.1 Subject to Sections 9 and 13 hereof, if at any time after exercise of
the Option the Company and/or one or more of the holders of the Common Stock
other than the holder of the Option propose to file a registration statement to
register any security of the Company (other than Common Stock issued with
respect to any acquisition or any employee stock option, stock purchase or
similar plan) under the Securities Act for sale to
4
5
the public in an underwritten offering upon which may be registered securities
similar to the Option Shares, it will at each such time give written notice to
the holder of the Option of its intention to do so ("Notice of Intent") and,
upon the written request of the holder of the Option made within 30 calendar
days after the receipt of the notice of intent (which request must specify that
the holder of the Option intends to dispose of all of the Option Shares held by
the holder of the Option as soon as practicable following the registration and
state the intended method of disposition thereof) the Company will use its best
efforts to effect the registration under the Securities Act of the Option Shares
which the Company has been so requested to register, to the extent requisite to
permit the intended disposition provided, however if the managing underwriter of
any underwritten offering of the Registrable Securities to be registered
pursuant to this Section 7.1 shall advise the Company and the selling holders in
writing that, in its opinion, the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting such offering, the Company will include in such
registration such number of registrable securities as the managing underwriter
believes can be sold in such offering, said registrable securities to be
allocated pro rata among the selling holders on the basis of the percentage that
the registrable securities sought to be registered by each such selling holder
bears to the total number of registrable securities sought to be registered
pursuant to this Section.
8. Piggy-Back Registration Expenses
8.1 The costs and expenses (other than underwriting discounts and
commissions) of all registrations and qualifications under the Securities Act,
and of all other actions the Company is required to take or effect pursuant to
Section 7 of this Agreement shall be paid by the Company (including, without
limitation, all registration and filing fees, printing expenses, fees and
expenses of complying with Blue Sky laws, and fees and disbursements of counsel
for the Company and Company's independent public accountants); provided,
however, that fees and expenses of complying with Blue Sky laws in those states
where Option Shares and no other securities of the Company covered by the
registration statement will be offered for sale, shall be paid by the holder.
9. Registration Procedures
9.1 If and whenever the Company is required to effect the registration of
any Option Shares under the Securities Act as provided in this Agreement, the
Company will promptly:
a) prepare and file with the Commission a registration statement
with respect to such Option Shares and use
5
6
its best efforts to cause such registration statement to become effective;
b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all such Option Shares until such time as all of such Option
Shares have been disposed of in accordance with the intended methods of
disposition by the holder set forth in such registration statement, but in no
event for a period of more than nine months after such registration statement
becomes effective;
c) furnish to the holder such number of copies of such registration
statement and of each such amendment and supplement thereto such number of
copies of the prospectus included in such registration statement, in conformity
with the requirements of the Securities Act;
d) uses its best efforts to register or qualify the Option Shares
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions within the United States of America (including
territories and commonwealths thereof) as the holder shall reasonably request,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, to subject itself to taxation in any such jurisdiction or
to consent to general service of process in any jurisdiction;
e) notify holder when a prospectus relating to the Option Shares is
required to be delivered under the Securities Act within the period mentioned in
subdivision (ii) of this paragraph, of the happening of any event as a result of
which the prospectus included in such registration statement as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing and upon receipt of
such notice and until a supplemented or amended prospectus as set forth below is
available. Holder shall not offer or sell any securities covered by such
registration statement and shall return all copies of such prospectus to the
Company if requested to do so by it; and
f) furnish to the holder at the time of the disposition of any
Option transferred by it, a signed copy of an opinion of counsel to the effect
that (a) a registration statement covering such Option Shares has been filed
with the Commission under the Securities Act and has been made effective by
order of the Commission, (b) said registration statement and
6
7
the prospectus contained therein comply as to form in all material respects with
the requirements of the Securities Act, (c) no stop order has been issued by the
Commission suspending the effectiveness of such registration statement and (d)
the applicable provisions of the securities or Blue Sky laws of each state in
which the Company shall be required, pursuant to subparagraph (d) of this
Section 9.1, to register or qualify such Option Shares, have been complied with,
assuming the accuracy and completeness of the information furnished to such
counsel with respect to each filing relating to such laws; it being understood
that such opinion may contain such qualifications and assumptions as are
customary in the rendering of similar opinions and that such counsel may rely,
as to all factual matters treated therein, on certificates of the Company.
9.2 The Company may require the holder to furnish the Company such
information regarding the holder's identity and its intended distribution of
such Option Shares as the Company may from time to time reasonably require in
writing and as shall be required by law to effect such registration.
10. Termination of Obligations
10.1 The obligations of the Company imposed by Section 6 through 9 above
shall cease and terminate, as to any particular Option Shares, upon the earlier
of (a) when such shares shall have been effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering such securities, or (b) when in the opinion of counsel for the Company
such restrictions are no longer required in order to insure compliance with the
registration guidelines of the Securities Act or (c) July 31, 2003. Whenever
such restrictions shall terminate as to any Option Shares, the holder shall be
entitled to receive from the Company without expense a new certificate or
certificates representing such securities not bearing the legend set forth in
Section 4.3 above.
11. Availability of Information
11.1 The Company shall comply with the reporting requirements of Sections
13 and 15(d) of the Securities Exchange Act of 1934 to the extent it shall be
required to do so pursuant to such Sections, and at all times while so required
shall use its best efforts to comply with all other public information reporting
requirements of the Commission (including reporting requirements which serve as
a condition to utilization of Rule 144 promulgated in effect and relating to the
availability of an exemption from the Securities Act for the sale of any Option
Shares). The Company will also cooperate with holder in supplying such
information and documentation as may be necessary for it to complete and file
any information reporting forms presently or hereafter required by the
Commission as a condition
7
8
to the availability of an exemption from the Securities Act for the sale of any
Option Shares.
12. Antidilution
12.1 In any event of any change in the Common Stock subject to the Option
granted by this Agreement through merger, consolidation, reorganization,
recapitalization, stock split, stock dividend or the issuance to stockholders of
rights to subscribe to stock of the same class, or in the event of any change in
the capital structure, the Board of Directors of the Company shall on an
equitable basis make such adjustments with respect to the number and/or Exercise
Price of Option Shares in its reasonable discretion.
13. Representation
13.1 The Company represents and warrants that all Option Shares
deliverable upon exercise hereof will be duly authorized and upon issuance in
accordance with the terms hereof will be validly issued, fully paid and
non-assessable and duly listed, or listed upon official notice of issuance on
any stock exchange where other securities of the Company of the same class are
listed.
13.2 The execution, delivery and performance of this Agreement are within
Company's powers (corporate or otherwise) and have been duly authorized on its
part by all requisite action. This Agreement has been duly executed and
delivered by Company.
14. Indemnity
14.1 The Company shall indemnify and hold harmless the holder of the
Option Shares from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or any post-effective
amendment thereto or any registration statement under the securities laws, or
any prospectus included therein required to be filed or furnished by reason of
this Agreement or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished or required to
be furnished in writing to the Company by such holder expressly for use therein,
which indemnification shall include such person, if any, who controls any such
holder within the meaning of such securities laws; provided however, that the
Company shall not be obligated so to indemnify any such holder or controlling
person unless such
8
9
holder shall at the same time indemnify the Company, its directors, each officer
signing the related registration statement and each person, if any, who controls
the Company within the meaning of such law, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or any
prospectus required to be filed or furnished by reason of this Section or caused
by any omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
alleged untrue statement or omission based upon information furnished in writing
to the Company by any such holder expressly for use therein.
15. Miscellaneous
15.1 This Agreement shall be governed by the laws of the State of New
York.
15.2 Any and all notices referred to herein shall be sufficient if
furnished in writing and delivered in person or mailed by certified mail (return
receipt requested) or reputable overnight courier service to the respective
parties at their addresses set forth above or to such other address as either
party may from time to time designate in writing.
15.3 This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original. It shall not be necessary in making proof
of this Agreement to produce or account for more than one (1) such counterpart.
15.4 This Agreement embodies the entire agreement of the parties regarding
the subject matter hereof. All prior negotiations and representations are merged
herein. This Agreement may not be altered or modified, except by an instrument
in writing signed by both parties (which may be in counterpart); nor may any
provision be waived by a party unless in writing signed by such party.
15.5 As used in this Agreement, the masculine, feminine or neuter gender,
and the singular and plural number shall each be deemed to include the others
whenever the context so indicates.
9
10
IN WITNESS WHEREOF the parties have executed this Agreement as of
the date first above mentioned.
SHOREWOOD PACKAGING CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Xxxx X. Xxxxx, President and Chief
Executive Officer
[*]
By: [*] (Signature)
----------------------------
[*] , (Print Name) Vice President
---------------------
-------------------------
[*] Portions of this document have been omitted pursuant to an Application for
Confidential Treatment. Such omissions have been filed separately with the
Securities and Exchange Commission together with such Application for
Confidential Treatment.
10
