EXHIBIT 4.4
SUPPLEMENTAL WARRANT AGREEMENT
SUPPLEMENTAL WARRANT AGREEMENT, dated as of November 28, 1990, between
Xxxxxxxx Manufacturing Company, a Nevada corporation (the "Company"), and First
Chicago S.A., a company limited by shares incorporated under the laws of
Switzerland, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company and the Warrant Agent are parties to a Warrant
Agreement (the "Agreement") dated as of February 27, 1985, pursuant to which
Agreement the Company issued certain Warrants (the "Warrants") to purchase
shares of the Company's Common Stock, $1.00 par value per share (the "Company
Common Stock");
WHEREAS, the Company and Xxxxx Xxxxxxxx Corporation ("Xxxxx
Xxxxxxxx"), formerly named Xxxxx International Corporation, are parties to an
Agreement and Plan of Reorganization dated as of May 24, 1990 (the
"Reorganization Agreement") which provided, among other things, for the merger
of a wholly-owned subsidiary of Xxxxx Xxxxxxxx with and into the Company (the
"Merger");
WHEREAS, pursuant to the Merger, which occurred on October 16, 1990,
each outstanding share of Company Common Stock was converted into 1.12 shares of
the Common Stock, $1.00 par value per share, of Xxxxx Xxxxxxxx (including 1.12
preferred stock purchase rights of Xxxxx Xxxxxxxx) (collectively, the "Xxxxx
Xxxxxxxx Common Stock");
WHEREAS, Section 16(b) of the Warrant Agreement requires the Company
to enter into this Supplemental Warrant Agreement setting forth the right of
holders of Warrants to receive, upon exercise of the Warrants, Xxxxx Xxxxxxxx
Common Stock in lieu of Company Common Stock from and after the effective time
of the Merger;
NOW, THEREFORE, in consideration of the premises contained herein, the
Company covenants and agrees with the Warrant Agent for the equal and
proportionate benefit of the respective holders from time to time of the
Warrants as follows:
SECTION 1. Receipt of Xxxxx Xxxxxxxx Common Stock in Lieu of Company
---------------------------------------------------------
Common Stock. Each holder of a Warrant shall have the right, from and after the
------------
date hereof, until the Expiration Date (as defined in the Warrant Agreement), to
receive, upon exercise of such Warrant, in lieu of the five shares of Company
Common Stock previously deliverable upon such exercise, 5.6 shares of Xxxxx
Xxxxxxxx Common Stock (including 5.6 preferred stock purchase rights).
SECTION 2. Exercise Price. From and after the date hereof, the
--------------
Exercise Price (within the meaning of the Agreement) under the Warrants shall be
80.35 Swiss francs for each share of Xxxxx Xxxxxxxx Common Stock issuable upon
the exercise thereof.
SECTION 3. Adjustments. From and after the date hereof, the Exercise
-----------
Price and the number and kind of securities purchasable upon the exercise of
each Warrant shall be subject to adjustment from time to time upon the
occurrence of the events enumerated in Section 14 of the Agreement, as fully as
if any action taken by Xxxxx Xxxxxxxx after the date hereof with respect to
Xxxxx Xxxxxxxx Common Stock had been taken with respect to Company Common Stock
under the terms of such Section 14.
SECTION 4. Fractional Shares. The Company shall not be required to
-----------------
cause the issue of fractions of shares of Xxxxx Xxxxxxxx Common Stock upon
exercise of the Warrants or to distribute certificates which evidence fractional
shares. In lieu of fractional shares, there shall be paid to the Warrant Agent
in favor of the holders of Warrant Certificates (as defined in the Agreement) at
the time such Warrant Certificates are exercised an amount in cash in Swiss
francs calculated in accordance with the terms of Section 15 of the Agreement;
provided, however, that the calculation of such amount shall be based upon the
current market price per share of Xxxxx Xxxxxxxx Common Stock rather than the
current market price per share of Company Common Stock. For purposes of the
foregoing, the current market price per share of Xxxxx Xxxxxxxx Common Stock
shall be determined by averaging the daily Closing Prices of Xxxxx Xxxxxxxx
Common Stock for the ten consecutive Trading Days preceding the date of
exercise, in accordance with Section 14(d) of the Agreement, and shall be
translated to Swiss francs as provided in Section 15 of the Agreement.
SECTION 5. Reservation of Shares. For the purpose of enabling it to
---------------------
satisfy any obligation to deliver Xxxxx Xxxxxxxx Common Stock upon exercise of
Warrants, the Company represents that Xxxxx Xxxxxxxx will at all times through
the close of business on the Expiration Date, reserve and keep available, free
from preemptive rights and out of its aggregate authorized but unissued or
treasury Common Stock, the full number of shares of Xxxxx Xxxxxxxx Common Stock
deliverable upon the exercise of all outstanding Warrants, and Xxxxx Xxxxxxxx'x
common stock transfer agent shall be irrevocably authorized and directed at all
times to honor requisitions made by the Warrant Agent pursuant to Section 8 of
the Agreement. The Company will keep a copy of the Agreement and this
Supplemental Warrant Agreement on file with such transfer agent and with every
transfer agent for any shares of Xxxxx Xxxxxxxx'x capital stock issuable upon
the exercise of Warrants pursuant to Section 14 of the Agreement. The Warrant
Agent is hereby irrevocably authorized to requisition from time
2
to time from such transfer agent stock certificates issuable upon exercise of
outstanding Warrants, and the Company will supply such transfer agent with duly
executed stock certificates for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 14 of the Agreement reducing the Exercise Price below the then par value
(if any) of the shares of Xxxxx Xxxxxxxx Common Stock issuable upon exercise of
the Warrants, the Company will take, or will cause Xxxxx Xxxxxxxx to take, any
corporate action which may, in the opinion of its counsel, be necessary in order
that Xxxxx Xxxxxxxx may validly and legally issue fully paid and nonassessable
shares of Xxxxx Xxxxxxxx Common Stock at the Exercise Price as so adjusted.
The Company covenants that all shares of Xxxxx Xxxxxxxx Common Stock
issued upon exercise of the Warrants will, upon issuance in accordance with the
terms of the Agreement and this Supplemental Warrant Agreement, be fully paid
and nonassessable and free from all prescriptive rights and taxes, liens,
charges and security interests created by or imposed upon the Company or Xxxxx
Xxxxxxxx with respect to the issuance and holding thereof.
SECTION 6. Expenses. The Company agrees to reimburse the Warrant
--------
Agent for all costs and expenses reasonably incurred by the Warrant Agent in
connection with the execution and delivery of this Supplemental Warrant
Agreement, including, without limitation, fees and expenses of counsel and costs
incurred in connection with the publication of notice to holders of Warrants in
accordance with Sections 14(h) and 16(e) of the Agreement. All such costs and
expenses shall be reimbursed promptly by the Company when (i) ascertained by the
Warrant Agent and (ii) itemized in a notice from the Warrant Agent to the
Company.
SECTION 7. Warrant Agreement to Remain in Full Force and Effect.
----------------------------------------------------
Except as modified or supplemented by this Supplemental Warrant Agreement, the
Agreement shall continue to be the binding obligation of the Company and the
Warrant Agent, and shall remain in full force and effect, from and after the
date hereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
XXXXXXXX MANUFACTURING COMPANY
By /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Vice President
By /s/ Xxxxxx X. xxx Xxxxxxxxxxxx
-------------------------------
Title: Vice President
FIRST CHICAGO S.A.
as Warrant Agent
By /s/ [Signature]
-------------------------------
Title:
4
