1
Exhibit 4.4
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE
OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXX INDUSTRIES, INC.
VOID AFTER DECEMBER 1, 2005
This certifies that XXX X. XXXXXXX, or its successors or
assigns (such person and such successors and assigns each being the "Warrant
Holder" with respect to the Warrant held by it), at any time and from time to
time on any Business Day on or prior to December 1, 2005, is entitled to
purchase Ten Thousand (10,000) Shares of fully paid and nonassessable shares of
Common Stock, $0.01 par value (the "Common Stock"), of Xxxxxxxxx Industries,
Inc., a Delaware corporation (the "Company"), at a price equal to $3.59 per
share (the "Warrant Price"). Of the 10,000 shares provided for herein, 5,000
shares may be purchased immediately and 5,000 shares may be purchased only in
the event that Letters of Credit (as defined in the L/C Facility) are completely
satisfied by the release of the Letters of Credit and the occurrence of the LC
Termination Date (as defined in the L/C Facility) prior to December 30, 2000.
This Warrant may be exercised by surrendering this Warrant with the subscription
form hereinafter set forth fully executed, at the principal office of the
Company in Sunrise, Florida, accompanied by payment of the full purchase price
of the shares so purchased in cash, and upon compliance with and subject to the
conditions set forth herein. The purchase price per share and the number of
shares covered by this Warrant are subject to adjustment from time to time as
hereinafter set forth. In addition to being able to pay the exercise price in
cash, the Warrant Holder shall be permitted to offset any interest payment due
and owing Warrant Holder by the Company pursuant to the L/C Facility by
offsetting any interest accrued and unpaid by the Company to the Warrant Holder
under the L/C Facility. In connection therewith, rather than tendering cash, the
Warrant Holder shall tender a statement to the Company indicating the dollar
amount of interest to be offset against the Warrant Price. In connection with
all references set forth below to the payment of cash for the Warrant Price, the
tender of the statement of interest owed shall be treated in the same manner as
cash.
The purchase price per share of Common Stock from time to time
in effect under this Warrant, and the number and character of shares covered
hereby, shall be subject to adjustments from time to time in certain instances
as follows, and the term "Warrant Price" shall mean the price per share
originally set forth in this Warrant or any price resulting from adjustments
pursuant to the terms hereof.
-1-
2
1. In case the Company shall subdivide its outstanding shares
of Common Stock into a greater number of shares or shall issue in exchange for
its outstanding shares of Common Stock a greater number of shares of Common
Stock, then in each such case from and after the record date for such
subdivision or exchange, the number of shares of Common Stock covered by this
Warrant shall be increased in proportion to such increase in the number of
outstanding shares of Common Stock and the Warrant Price then in effect shall be
correspondingly decreased; and in the case the Company shall reduce the number
of shares of its Common Stock by a combination of shares or shall issue in
exchange for its outstanding shares of Common Stock a lesser number of shares of
Common Stock, then in each such case from and after the record date for such
combination or exchange, the number of shares of Common Stock covered by this
Warrant shall be decreased in proportion to such reduction in the number of
outstanding shares of Common Stock, and the then prevailing Warrant Price shall
be correspondingly increased.
2. In case the Company shall declare and pay a dividend upon
its Common Stock payable in Common Stock, then in each such case from and after
the record date for determining the stockholders entitled to receive such
dividend, the number of shares of Common Stock covered by this Warrant shall be
increased in proportion to the increase in the number of outstanding shares of
Common Stock through such stock dividend, and the then prevailing Warrant Price
shall be correspondingly decreased.
3. In case of any reclassification or change of outstanding
shares of Common Stock (other than as a result of a subdivision, combination or
stock dividend) or in case of the consolidation or merger of the Company with or
into any other corporation (other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change in its outstanding shares of Common Stock), or in case of any sale by the
Company of all or substantially all of its assets to another corporation, the
Warrant Holder shall have the right thereafter to receive upon exercise hereof
the amount and kind of shares of capital stock and other securities and property
entitled to be received upon such reclassification, change, consolidation,
merger or sale by a holder of the number of shares of Common Stock of the
Company covered by such Warrant at the then prevailing Warrant Price, subject to
subsequent adjustments as provided herein.
4. In case at any time:
(a) the Company shall declare any dividend upon its Common
Stock or make any other distribution to the holders of its Common
Stock; or
(b) the Company shall propose to offer for subscription to the
holders of its Common Stock any additional shares of stock of any class
of any other securities or rights; or
(c) the Company shall propose any reclassification or change
of outstanding shares of Common Stock, or any consolidation or merger
of the Company or any sale by the Company of its assets to which
sections 1, 2 or 3 would be applicable, then, in any one or more of
such cases, the Company shall cause
-2-
3
notice to be mailed to the registered Warrant Holder 10 days after the
effective date or the record date for such dividend, distribution or
subscription rights, or for a vote upon such reclassification, change,
consolidation, merger or sale, as the case may be. In addition, the
Company shall mail to the registered Warrant Holder copies of each
report of communication of the Company mailed to the holders of its
Common Stock simultaneously with such mailing to holders of Common
Stock.
5. (a) As a condition precedent to the taking of any action
which would cause an adjustment reducing the Warrant Price below the then par
value of the shares of Common Stock issuable upon the exercise hereof, the
Company will take such corporate action as may be necessary in order that it may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Warrant Price.
(b) No adjustment shall be made in the number of shares
purchasable upon exercise of this Warrant in any case in which the adjustment
would result in a change of less than 2/100ths of a share of Common Stock, as
such Common Stock is constituted immediately subsequent to the event giving rise
to the proposed adjustment, except that any action taken by the Company which
otherwise would occasion an adjustment in an amount less than 2/100ths of a
share shall be carried forward and taken into account at the time of any
subsequent adjustment in the number of shares purchasable hereunder.
6. (a) Neither the Warrant nor the Warrant Shares have been
registered with the Commission under the Securities Act or qualified for sale
pursuant to any state blue sky law, and neither may be sold or transferred
without such registration or qualification, except pursuant to an exemption
therefrom. No rights shall be hereby granted which are in violation of
applicable securities laws or regulations.
(b) The Company may cause the legends set forth at the top of
the first page hereof to be set forth on each Warrant and the following legend
to be set forth on each certificate representing Common Stock issued upon
exercise of this Warrant, unless counsel for the Company is of the opinion as to
any such certificate that such legend is unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
SOLD OR TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR UPON
DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT
REQUIRED FOR SUCH SALE OR TRANSFER.
7. (a) This Warrant may be exercised for all or part of the
shares covered hereby. In the event of a partial exercise of this Warrant, the
Company will issue to the Warrant Holder the number of shares of Common Stock
purchased under this Warrant, together with a new,
-3-
4
similar Warrant for the unused portion. This Warrant may be subdivided into or
combined with similar Warrants at any time, at the option of the Warrant Holder,
at the principal office of the Company in Sunrise, Florida.
(b) The Company shall not be required to issued fractional
shares of Common Stock upon any exercise of Warrants. As to any final fraction
of a share in which the same holder of one or more Warrants, the rights under
which are exercised in the same transaction, would otherwise be entitled to
purchase upon such exercise, the Company shall pay a sum in cash equal to the
excess of the market value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company may prescribe) over
the proportional part of the exercise price represented by such fractional
share.
8. The Warrant Holder shall not be entitled, as such, to any
of the rights of a stockholder of the Company.
9. PIGGYBACK REGISTRATION RIGHTS.
(a) If the Company at any time or from time to time proposes
to file a registration statement under the Securities Act with respect to an
offering of shares of Common Stock for cash (x) for the Company's own account
(other than registration statement on Form S-4 or S-8 (or any successor or
similar form that may be adopted by the Commission)) or (y) for the account of
any holders of shares of Common Stock, options, or convertible securities, then
the Company at each such time shall give prompt written notice of such proposed
filing to each Warrant Holder and to each holder of Registrable Securities (but
in no event less then 10 Business Days before the anticipated filing date), and
such notice shall offer each Warrant Holder and each holder of Registrable
Securities the opportunity to register such number of Registrable Securities as
the such holder may request, by notice to the Company within 5 Business Days, on
the same terms and conditions as the other shares of Common Stock to be included
in such offering.
(b) If the registration of which the Company gives notice
pursuant to this SECTION 9 is for an underwritten public offering, (x) the
notice provided by the Company shall so state, (y) the right of any holder of
Registrable Securities to cause the Company to register such holder's
Registrable Securities pursuant to this SECTION 9 shall be conditioned upon the
inclusion of such holder's Registrable Securities in the underwriting to the
extent provided herein and (z) all holders of Registrable Securities proposing
to include their Registrable Securities in the registration shall enter into an
underwriting agreement in customary form for such an underwritten offering with
the representative(s) of the underwriters selected by the Company. The Company
shall have no obligation to consult with or obtain the consent of any Warrant
Holder or any holder of Registrable Securities in selecting any underwriters or
investment bankers for an offering registered pursuant to this SECTION 9.
(c) Notwithstanding any other provision of this SECTION 9, if
an offering for which the Company gives notice pursuant to SECTION 9(A) is to be
underwritten and the representative(s) of the underwriters for the offering
advises the Company that marketing factors require a limitation on the amount of
securities to be underwritten, (x) the Company
-4-
5
shall so advise all holders of Registrable Securities requesting registration
pursuant to this SECTION 9 and (y) the amount of Registrable Securities
requested to be offered may be excluded or reduced to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount recommended by such representative(s) of the underwriters; PROVIDED that
the amount of securities entitled to be included in the registration and
underwriting shall be allocated (i) first to the securities being sold for the
Company's own account (based on the number of such securities specified in the
notice given by the Company pursuant to SECTION 9(a), (ii) second to the
securities being sold for the account of The Equitable Life Assurance Society of
the United States (or its successors or assigns) to the extent such securities
are entitled to such priority pursuant to agreements of the Company in effect on
the Closing Date, (iii) third to securities being sold for the account of Key
Principal Partners, L.L.C. (or its successors or assigns) and (iv) then PRO RATA
among the Registrable Securities and any other securities entitled to be
included in such registration.
(d) The Company may withdraw its notice of proposed
registration given pursuant to Section 9(a) at any time by giving written notice
to each holder of Warrants and each holder of Registrable Securities, whereupon
the Company shall not be required to cause such proposed registration to be
effected.
(e) REGISTRATION PROCEDURES. Upon receipt of a request for
registration of Registrable Securities pursuant to SECTION 9(a), the Company
will thereupon use its best efforts to effect the registration of the
Registrable Securities that are the subject of such request as expeditiously as
possible, subject to the provisions of SECTION 9(a) and in connection therewith:
(i) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which the
Company then qualifies and which counsel for the Company shall deem appropriate
and available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof; the
Company will include in such registration statement all information that any
holder of such Registrable Securities (collectively, the "Participating
Holders") shall reasonably request for the purpose of conforming such
registration statement to the requirements of applicable law or of correcting
any material misstatement or omission therein; and the Company will use its best
efforts to cause such filed registration statement to become and remain
effective until the securities covered by such registration statement are sold
but not for more than 180 days.
-5-
6
(ii) Prior to filing such registration statement or any
amendment or supplement thereto, the Company will furnish to the Participating
Holders, their counsel and to each managing underwriter, if any, copies thereof,
and thereafter furnish to the Participating Holders, their counsel and to each
managing underwriter, if any, such number of copies of such registration
statement, amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein) in the prospectus
included in such registration statement (including each preliminary prospectus)
as the Participating Holders, their counsel or any managing underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities.
(iii) After the filing of the registration statement, the
Company will promptly notify each Participating Holder of any stop order issued
or, to the Company's knowledge, threatened to be issued by the Commission and
take all reasonable actions as soon as reasonably practicable to prevent the
entry of such stop order or to remove it if entered.
(iv) The Company will use its best efforts to register or
qualify the Registrable Securities to be offered by the Participating Holders
for offer and sale under such other securities or blue sky laws of such
jurisdictions in the United States as any Participating Holder shall reasonably
request; PROVIDED that the Company will not be required to (x) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (iv), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction.
(v) At any time when a prospectus relating to a sale of
Registrable Securities is required by law to be delivered in connection with
sales by an underwriter or dealer, the Company will promptly notify each
Participating Holder of the occurrence of any event requiring the preparation of
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
the Company will promptly make available to each Participating Holder and to the
underwriters any such supplement or amendment. Upon receipt of any notice from
the Company of the occurrence of any event of the kind described in the
preceding sentence, the Warrant Holder will forthwith discontinue the offer and
sale of Registrable Securities pursuant to the registration statement covering
such Registrable Securities until receipt by the Warrant Holder and the
underwriters of the copies of such supplemented or amended prospectus and, if so
directed by the Company, the Warrant Holder will deliver to the Company all
copies, other than permanent file copies then in the Warrant Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the 180-day period during which such registration statement is required
to be maintained effective as provided in SECTION 9(e)(i) shall be extended by
the number of days during the period from and including the date of the giving
of such notice to the date when the Company shall make available to the Warrant
Holder such supplemented or amended prospectus.
(vi) The Company will enter into customary agreements
(including an underwriting agreement in customary form if the offering is to be
underwritten) and take such other actions as are reasonably required in order to
expedite or facilitate the sale of such Registrable Securities.
(vii) The Company will use its best efforts to comply with all
applicable rules and regulations of the Commission, and will make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings
-6-
7
statement shall satisfy the provisions of Section 10(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
(viii) The Company will use its best efforts to cause all
Registrable Securities registered pursuant to this SECTION 9 to be listed on
each securities exchange on which securities issued by the Company of the same
class as such Registrable Securities are then listed or to cause such
Registrable Securities to be quoted on The Nasdaq National Market System if
other securities issued by the Company of the same class are quoted thereon.
(iviii) The Company will promptly notify each Participating
Holder and the managing underwriter or underwriters, if any, (A) when the
registration statement, the prospectus or any prospectus supplement related
thereto or post-effective amendment to the registration statement has been
filed, and, with respect to the registration statement or any post-effective
amendment thereto, when the same has become effective; (B) of any request by the
Commission for any amendment or supplement to the registration statement or the
prospectus or for additional information; and (C) of the receipt by the Company
of any notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws or any
jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) The Company will make available for inspection by a
representative of a Participating Holder, by any underwriter participating in
any disposition pursuant to the registration and by any attorney or account
retained by a Participating Holder or underwriters (each, an "Inspector") such
financial and other records, pertinent corporate documents and properties of the
Company as the Company may reasonably request (the "Records"), and the Company
will cause the officers, directors and employees of the Company to supply all
information reasonably requested by any such Inspector in connection with such
registration.
(x) The Company may require any Participating Holder to
furnish in writing to the Company such information regarding the Participating
Holder, as the case may be, the plan of distribution of the Registrable
Securities and other information as may be legally required as the Company may
from time to time reasonably request in writing.
(xi) As a condition to the inclusion of Registrable Securities
owned by any Participating Holder in a registration pursuant to Section 9(a),
each such Participating Holder shall, if reasonably requested by the Company or
by the representative(s) of the underwriters (if any) for such registered
offering, agree to deliver to the Company and such representative(s) a legal
opinion of such holder's counsel, covering such matters customarily requested of
selling shareholders in connection with a public offering of shares as the
Company or such representative(s) may reasonably request and in a form
reasonably satisfactory to the Company or such representative(s), upon the
closing of such offering.
(f) REGISTRATION EXPENSES. The entire costs and expenses of
any registration and qualification pursuant to this SECTION 9 shall be borne by
the Company. Such costs and expenses shall include (i) all costs and expenses
incident to the preparation, printing and filing of the registration statement
and all amendments and supplements thereto, including all
-7-
8
reasonable word processing, duplicating and printing expenses, (ii) all
registration and filing fees payable to the Securities and Exchange Commission
or The National Association of Securities Dealers, Inc., (iii) all fees and
expenses (including reasonable fees and expenses of counsel) of compliance with
securities or blue sky laws, (iv) the fees and expenses of counsel for the
Company, of its independent accountants and of any other experts retained by the
Company, (v) the cost of furnishing a reasonable number of copies of each
preliminary prospectus, each final prospectus and each amendment or supplement
thereto to underwriters, dealers and other purchasers of the Registrable
Securities, (vi) all necessary and appropriate messenger and delivery expenses
and (vii) all fees and expenses incurred in connection with any listing of the
Registrable Securities on any securities exchange or providing for the quotation
of the Registrable Securities on The Nasdaq National Market System; PROVIDED
that each Participating Holder shall pay any underwriting fees, discounts or
commissions, taxes and transfer taxes attributable to the sale of its
Registrable Securities.
(g) INDEMNIFICATION BY THE COMPANY. In the event of any
registration pursuant to SECTION 9 hereof, the Company agrees to indemnify and
hold harmless each Participating Holder, its officers and directors, and each
person, if any, who controls any Participating Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, 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 prospectus relating to the Registrable Securities (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, 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 of omission or alleged untrue statement or omission based upon
information relating to the Participating Holder or the plan of distribution
furnished in writing to the Company by the Participating Holder expressly for
use therein. The Company also agrees to indemnify any underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Participating Holder provided in this SECTION 9(g).
(h) INDEMNIFICATION BY THE PARTICIPATING HOLDER. Each
Participating Holder agrees to indemnify and hold harmless the Company, its
officers and directors, and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
the Participating Holder, but only with reference to information relating to
such Participating Holder or the plan of distribution furnished in writing by
the Participating Holder expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Each Participating Holder
also agrees to indemnify and hold harmless any underwriters of the Registrable
Securities, their officers and directors and each person who controls such
underwriters on substantially the same basis as that of the indemnification of
the Company provided in this SECTION 9(h).
-8-
9
(i) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
SECTION 9(G) or 9(H), such person (the "Indemnified Party") shall promptly
notify the person against whom such Indemnity may be sought (the "Indemnifying
Party") in writing and the Indemnifying Party, upon the request of the
Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than two separate
firms of attorneys (in addition to any legal counsel to such Indemnifying Party)
at any time for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Parties shall not be liable
for any settlement of any proceeding effected without its written consent (which
shall not be unreasonably withheld), but if settled with such consent, or if
there by a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
(j) LOCK UP. In connection with any underwritten public
offering of shares of Common Stock of the Company registered pursuant to the
Securities Act, if the managing underwriter for such registration shall so
request, the holders of Registrable Securities shall not sell, make any short
sale of, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those shares of Common Stock included in such
registration) without the prior written consent of the underwriters for a period
designated by the underwriters in writing to the holders of Registrable
Securities, which period shall begin not more than 10 days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement.
10. ARBITRATION. Any controversy or claim arising out of
related to this Agreement shall be settled and determined by arbitration
conducted in the City of Fort Lauderdale in accordance with the laws of the
State of Florida by a single arbitrator. The arbitration shall be conducted in
accordance with the commercial arbitration rules of the American Arbitration
Association. Judgment upon the award rendered by such arbitrator, hereby
specifically authorized, in circumstances he deems appropriate, to grant
injunctive relief, to award money damages, and/or to make award for legal and
accounting or other expenses incurred in connection with the arbitration
proceeding, shall be entered in any court having
-9-
10
jurisdiction thereof. The foregoing is intended to be an extension and not a
diminution of the powers and authority of the arbitration board.
11. NOTICES. Any notice or other communication hereunder shall
be in writing and shall be sufficient if sent by first-class mail or courier,
postage prepaid, and addressed as follows: (a) if to the Company, addressed to
the Company at its address for notices as set forth below its signature hereon
or any other address as the Company may hereafter notify to the Warrant Holder
and (b) if to the Warrant Holder, addressed to such address as the Warrant
Holder may hereafter from time to time notify to the Company for the purposes of
notice hereunder.
12. DEFINITIONS. As used herein (the following definitions
being applicable in both singular and plural forms):
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City, New York are authorized by law to
close.
"L/C FACILITY" means the letter of credit facility, dated as of
December 1, 2000, by and between the Company and Xxxxx Ventures, L.P., LJH
Corporation, Xxxxxx Xxxxxx, Xxx X. Xxxxxxx or their designees or assigns
providing for the issuance of $8.0 million of standby letters of credit in favor
of Bank of America, N.A. as agent of the lenders under the Senior Credit
Facility.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such successor Federal statute.
"REGISTRABLE SECURITIES" means any Warrant Shares until (a) a
registration statement under the Securities Act covering such Warrant Shares
shall have been declared effective and such Warrant Shares shall have been
disposed of pursuant to such effective registration statement, (b) all Warrant
Shares, held by such Warrant Holder are eligible to be immediately sold under
circumstances in which all of the conditions of Rule 144 (or any similar
provisions then in force) under the Securities Act are met or such Warrant
Shares may be sold pursuant to Rule 144(k), or (c) such Warrant Shares shall
have been otherwise transferred, the Company shall have delivered one or more
certificates or other evidence of ownership of such Warrant Shares not bearing
the legend required pursuant to Section 2 and such Warrant Shares may be resold
without subsequent registration under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Act shall include a reference to the comparable section, if any,
of any such successor Federal statute.
"SENIOR CREDIT FACILITY" means that certain Amended and Restated Credit
Agreement, dated as of December 14, 1998, as amended, among the Company, certain
of its subsidiaries
-10-
11
named therein, the financial institutions from time to time party thereto, and
Bank of America, N.A. as agent for such financial institutions.
"WARRANT" means, as the context requires, (a) this warrant or (b) any
of the other Common Stock purchase warrants originally issued pursuant the L/C
Facility, in either case, any successor warrant or warrants issued upon a whole
or partial transfer or assignment of any such Common Stock purchase warrant or
of any such successor warrant.
"WARRANT HOLDER" has the meaning set forth in the introductory
paragraph to this Warrant.
"WARRANT SHARES" means the number of shares of Common Stock issued or
issuable upon exercise of this Warrant as set forth in the introduction hereto,
as adjusted from time to time pursuant to SECTIONS 1, 2 OR 3, or in the case of
other Warrants, issuable upon exercise of those Warrants.
(Remainder of Page Intentionally Left Blank)
-11-
12
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS WARRANT TO BE
EXECUTED BY ITS AUTHORIZED SIGNATORY ON THIS 1ST DAY OF DECEMBER, 2000.
XXXXXXXXX INDUSTRIES, INC.
By: /s/ Zivi X. Xxxxxx
-------------------------------------
President
ADDRESS:
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
-12-
13
PURCHASE FORM
The undersigned, the Holder of the within Warrant, hereby irrevocably
elects to exercise the purchase rights represented by said Warrant for, and to
purchase thereunder, ________ shares of Common Stock, $0.01 par value per share,
of Xxxxxxxxx Industries, Inc. and herewith makes payment of $___________ in cash
therefor, and requests that the certificates for such shares be issued in the
name of _____________________________________ and delivered to _________________
___________________________, whose address is __________________________________
_____________________________________ and, if such shares shall not be all of
the shares purchasable hereunder, that a new Warrant of like tenor for the
balance of the shares purchasable hereunder be delivered to the undersigned.
Dated: _________________
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Social Security
or Tax I.D. No.
------------------------
