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EXHIBIT 4.17
WARRANT
THIS WARRANT (this "Warrant") is made as of July 5, 2000, between
Xxxxxxxxxxx International, Inc., a Delaware corporation (the "Company"), and
Xxxxxx X. Xxxxx, Xx. (the "Holder").
WITNESSETH:
WHEREAS, the Company has granted to the Holder the right to purchase
stock as set forth in this Warrant;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Holder hereby agree as follows:
1. Grant. (a) The Company hereby grants to the Holder a warrant
effective on July 5, 2000, (the "Date of Grant") to purchase 60,000 shares of
the Company's common stock, $1.00 par value ("Common Stock") having an exercise
price equal to the closing sale price of the Common Stock on the New York Stock
Exchange on July 5, 2000 (the "Warrant Price"). The Company and the Holder agree
that the Warrant shall be subject to the terms of this Warrant. The Company and
the Holder further agree that this Warrant sets forth the complete terms of this
Warrant as in effect on the date hereof.
(b) Subject to Paragraph 6, the Warrant shall not be exercisable after
the expiration of ten years from the date the Warrant becomes first exercisable.
(c) Subject to earlier vesting in the event of (i) a "Change in
Control" as provided in Paragraph 1(e) hereof, or (ii) in the event the Holder
dies, retires or incurs a disability while serving as a director of the Company
as provided for in Paragraph 6, the Warrant shall become exercisable on the
third anniversary of the Date of Grant.
(d) Notwithstanding the provisions of Paragraph 1(d) hereof, the
Warrant shall be exercisable with respect to all of the shares subject to this
Warrant upon the occurrence of a Change in Control (as defined herein). For
purposes of this Warrant, a Change in Control shall mean the occurrence of one
or more of the following events: (i) any "person", including a "group", as those
terms are used in Section 13(d)(3) of the Securities Exchange Act of 1934, other
than an affiliate of the Company as of the Date of Grant, becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 30
percent or more of the combined voting power of the Company's then outstanding
voting securities; (ii) the Company is merged or consolidated with or into
another corporation and immediately after giving effect to the merger or
consolidation either (A) less than 65 percent of the outstanding voting
securities of the surviving or resulting entity are then beneficially owned in
the aggregate by (x) the stockholders of the Company immediately prior to such
merger or consolidation or (y) if a record date has been set to determine the
stockholders of the Company entitled to vote on such merger or consolidation,
the stockholders of the Company as of such record date, or (B) the board of
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directors, or similar governing body, of the surviving or resulting entity does
not have as a majority of its members the persons specified in clause (iii)(A)
and (B) below; (iii) if at any time the following do not constitute a majority
of the Board of Directors of the Company (or any successor entity referred to in
clause (ii) above): (A) persons who are directors of the Company on the Date of
Grant and (B) persons who, prior to their election as a director of the Company
(or successor entity if applicable), were nominated, recommended or endorsed by
a formal resolution of the Board of Directors of the Company; (iv) persons who
are directors of the Company as of the beginning of any calendar year cease to
constitute a majority of the members of the Board of Directors at any time
during that calendar year; or (v) the Company transfers all or substantially all
of its assets as contemplated by Delaware corporate law on a consolidated basis
to another corporation or entity which is a less than a 50 percent owned
subsidiary of the Company.
(e) The Holder may exercise this Warrant by delivering to the Company a
written notice stating (i) that he wishes to exercise this Warrant on the date
such notice is so delivered, (ii) the number of shares of stock with respect to
which this Warrant is to be exercised, (iii) the address to which the
certificate representing such shares of stock should be mailed, and (iv) the
social security number of the Holder. In order to be effective, such written
notice shall be accompanied by a payment equal to the Warrant Price multiplied
by the number of shares of stock with respect to which this Warrant is to be
exercised (the "Warrant Exercise Amount"). The Warrant Exercise Amount shall be
made by cashier's check drawn on a national banking association and payable to
the order of the Company in United States dollars.
If, at the time of receipt by the Company of such written notice, (i)
the Company has unrestricted surplus in an amount not less than the Warrant
Exercise Amount, (ii) all accrued cumulative preferential dividends and other
current preferential dividends on all outstanding shares of preferred stock of
the Company have been fully paid, (iii) the acquisition by the Company of its
own shares of stock for the purpose of enabling the Holder to exercise this
Warrant is otherwise permitted by applicable law and without any vote or consent
of any stockholder of the Company, and (iv) there shall have been adopted, and
there shall be in full force and effect, a resolution of the Board of Directors
of the Company authorizing the acquisition by the Company of its own shares of
stock for such purpose, then the Holder may deliver to the Company, in payment
of the Warrant Exercise Amount, (x) certificates registered in the name of the
Holder that represent a number of shares of stock legally and beneficially owned
by the Holder (free of all liens, claims and encumbrances of every kind) and
having a fair market value on the date of receipt by the Company of such written
notice that is not greater than the Warrant Exercise Amount, such certificates
to be accompanied by stock powers duly endorsed in blank by the record holder of
the shares of stock represented by such certificates, with the signature of such
record holder guaranteed by a national banking association (or in lieu of such
certificates, other arrangements for the transfer of such shares to the Company
which are satisfactory to the Company), and (y) if the Warrant Exercise Amount
exceeds such fair market value, a cashier's check drawn on a national banking
association and payable to the order of the Company in an amount, in United
States dollars, equal to the amount of such excess. Notwithstanding the
provisions of the immediately preceding sentence, the Compensation Committee of
the Board of Directors (the "Committee"), in its sole discretion, may refuse to
accept shares of stock in payment of the Warrant Exercise Amount and, in that
event, any certificates representing shares of stock that were received by the
Company with such written
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notice shall be returned to the Holder, together with notice by the Company to
the Holder of the refusal of the Committee to accept such shares of stock. If,
at the expiration of seven business days after the delivery to the Holder of
such written notice from the Company, the Holder shall not have delivered to the
Company a cashier's check drawn on a national banking association and payable to
the order of the Company in an amount, in United States dollars, equal to the
Warrant Exercise Amount, such written notice from the Holder to the Company
shall be ineffective to exercise this Warrant.
As promptly as practicable after the receipt by the Company of (i) such
written notice from the Holder and (ii) payment, in the form required by the
foregoing provisions of this Paragraph 1(f) of the Warrant Exercise Amount, the
Company shall cause its transfer agent to deliver to the Holder a certificate
representing the number of shares of stock with respect to which this Warrant
has been so exercised, such certificate to be registered in the name of the
Holder. Such delivery shall be considered to have been made when such
certificate shall have been mailed, postage prepaid, to the Holder at the
address specified for such purpose in such written notice from the Holder to the
Company.
2. Changes in the Company's Capital Structure. The existence of this
Warrant shall not affect in any way the right or power of the Company or its
stockholders 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 the 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.
If the Company shall effect a subdivision or consolidation of shares or
other capital adjustment of, or the payment of a dividend in capital stock or
other equity securities of the Company on, its Common Stock, or other increase
or reduction of the number of shares of the Common Stock without receiving
consideration therefor in money, services, or property, or the reclassification
of its Common Stock, in whole or in part, into other equity securities of the
Company, then (a) the number, class and per share price of shares of stock
subject to the outstanding Warrant shall be appropriately adjusted (or in the
case of the issuance of other equity securities as a dividend on, or in a
reclassification of, the Common Stock, this Warrant shall extend to such other
securities) in such a manner as to entitle the Holder to receive, upon exercise
of this Warrant, for the same aggregate cash consideration, the same total
number and class or classes of shares (or in the case of a dividend of, or
reclassification into, other equity securities, such other securities) he would
have held after such adjustment if he had exercised this Warrant in full
immediately prior to the event requiring the adjustment, or, if applicable, the
record date for determining stockholders to be affected by such adjustment; and
(b) the number and class of shares then reserved for issuance under this Warrant
(or in the case of a dividend of, or reclassification into, other equity
securities, such other securities) shall be adjusted by substituting for the
total number and class of shares of stock then received, the number and class or
classes of shares of stock (or in the case of a dividend of, or reclassification
into, other equity securities, such other securities) that would have been
received by the owner of an equal number of outstanding shares of Common Stock
as a result of the event requiring the adjustment. Comparable rights shall
accrue to the Holder in the event of successive subdivisions,
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consolidations, capital adjustments, dividends or reclassifications of the
character described above.
If the Company shall distribute to all holders of its shares of Common
Stock (including any such distribution made to non-dissenting stockholders in
connection with a consolidation or merger in which the Company is the surviving
corporation and in which holders of shares of Common Stock continue to hold
shares of Common Stock after such merger or consolidation) evidences of
indebtedness or cash or other assets (other than cash dividends payable out of
consolidated retained earnings not in excess of, in any one year period, the
greater of (a) in an amount per share of Common Stock equal to $1.00 per share
of Common Stock (as the same may be adjusted from time to time by the Board of
Directors of the Company to reflect the effect of changes in capitalization) and
(b) two times the aggregate amount of dividends per share paid during the
preceding calendar year and dividends or distributions payable in shares of
Common Stock or other equity securities of the Company described in the
immediately preceding paragraph, but including stock or other securities of any
corporation or other entity owned by the Company), then in each case the Warrant
Price shall be adjusted by reducing the Warrant Price in effect immediately
prior to the record date for the determination of stockholders entitled to
receive such distribution by the fair market value, as determined in good faith
by the Board of Directors of the Company (whose determination shall be described
in a statement filed in the Company's corporate records and be available for
inspection by any holder of this Warrant) of the portion of the evidence of
indebtedness or cash or other assets so to be distributed applicable to one
share of Common Stock; provided that in no event shall the Warrant Price be less
than the par value of a share of Common Stock. In the event such adjustment
would result in the Warrant Price being less than the par value of a share of
Common Stock but for the foregoing proviso, the terms of this Warrant shall be
appropriately adjusted so as to maintain the economic value of this Warrant,
including through an adjustment to the number of shares of Common Stock subject
to the Warrant and through a provision allowing the holder of this Warrant to
receive the evidence of indebtedness or cash or other assets so to be
distributed applicable to one share of Common Stock for each share of Common
Stock that may be purchased on the exercise of this Warrant. Such adjustment
shall be made whenever any such distribution is made, and shall become effective
on the date of the distribution retroactive to the record date for the
determination of the stockholders entitled to receive such distribution. In
addition, in the event the Company distributes shares or other securities of a
subsidiary corporation or other entity to the holders of the Common Stock, the
Board of Directors may, in lieu of the adjustment provided above, make provision
allowing the holder of this Warrant to receive the shares or securities of the
corporation or entity that are subject to the distribution. Comparable
adjustments shall be made in the event of successive distributions of the
character described above.
If the Company shall make a tender offer for, or grant to all of its
holders of its shares of Common Stock the right to require the Company or any
subsidiary of the Company to acquire from such stockholders shares of, Common
Stock, at a price in excess of the Fair Market Value (a "Put Right") or the
Company shall grant to all of its holders of its shares of Common Stock the
right to acquire shares of Common Stock for less than the Fair Market Value (a
"Purchase Right") then, in the case of a Put Right, the Warrant Price shall be
adjusted by multiplying the Warrant Price in effect immediately prior to the
record date for the determination of stockholders entitled to receive such Put
Right by a fraction, the numerator of which shall be the number of shares of
Common Stock then outstanding minus the number of shares of Common Stock which
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could be purchased at the Fair Market Value for the aggregate amount which would
be paid if all Put Rights are exercised and the denominator of which is the
number of shares of Common Stock which would be outstanding if all Put Rights
are exercised; and, in the case of a Purchase Right, the Warrant Price shall be
adjusted by multiplying the Warrant Price in effect immediately prior to the
record date for the determination of the stockholders entitled to receive such
Purchase Right by a fraction, the numerator of which shall be the number of
shares of Common Stock then outstanding plus the number of shares of Common
Stock which could be purchased at the Fair Market Value for the aggregate amount
which would be paid if all Purchase Rights are exercised and the denominator of
which is the number of shares of Common Stock which would be outstanding if all
Purchase Rights are exercised. In addition, the number of shares subject to this
Warrant shall be increased by multiplying the number of shares then subject to
this Warrant by a fraction which is the inverse of the fraction used to adjust
the Warrant Price. Notwithstanding the foregoing, if any such Put Rights or
Purchase Rights shall terminate without being exercised, the Warrant Price and
number of shares subject to this Warrant shall be appropriately readjusted to
reflect the Warrant Price and number of shares subject to this Warrant which
would have been in effect if such unexercised Put Rights or Purchase Rights had
never existed. Comparable adjustments shall be made in the event of successive
transactions of the character described above.
In the event of a merger of one or more corporations or entities with
or into the Company in which the Company is not the sole survivor or there is an
exchange, conversion or modification to the ownership of the then outstanding
shares of Common Stock of the Company, a consolidation of the Company and any
one or more corporations or entities, a statutory share or interest exchange in
which all of the Common Stock is acquired or any other similar business
combination with respect to the Company in which the Common Stock is acquired by
a third party, the Holder, at no additional cost, shall be entitled to receive,
upon any exercise of this Warrant, in lieu of the number of shares as to which
this Warrant shall then represent the right to purchase, the number and class of
shares of stock or other securities, assets or other property, including cash,
to which the Holder would have been entitled to receive or continue to hold
pursuant to the terms of the agreement of merger, consolidation, share or
interest exchange or other similar transaction if at the time of such merger,
consolidation, share or interest exchange the Holder had been a holder of a
number of shares of Common Stock equal to the number of shares as to which this
Warrant shall then represent the right to purchase. Comparable rights shall
accrue to the Holder in the event of successive mergers, consolidations, share
or interest exchanges or other transactions of the character described above.
If a corporate transaction described in Section 424(a) of the Code
which involves the Company is to take place and there is to be no surviving
corporation while this Warrant remains in whole or in part unexercised, it shall
be cancelled by the Board of Directors of the Company as of the effective date
of any such corporate transaction but before such date the Holder shall be
provided with a notice of such cancellation and the Holder shall have the right
to exercise this Warrant in full (without regard to any limitations on exercise
set forth in or imposed by this Warrant) to the extent it is then still
unexercised during a 30-day period preceding the effective date of such
corporate transaction.
For purposes of this Xxxxxxxxx 0, Xxxx Xxxxxx Value per share of Common
Stock shall mean the closing price of a share of Common Stock as reported by the
principal national
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securities exchange on which the Common Stock is then listed if the Common Stock
is then listed on a national securities exchange, or the average bid and asked
prices of a share of Common Stock as reported in the National Association of
Securities Dealers Automated Quotation National Market System (or successor
system) if the Common Stock is not then listed on a national securities
exchange, on the trading day immediately preceding the first trading day on
which, as a result of the establishment of a record date or otherwise, the
trading price reflects that an acquiror of Common Stock in the public market
will not participate in or receive the payment of any applicable dividend or
distribution.
Except as otherwise expressly provided in this Warrant, the issue by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, for cash or property, or for labor or services
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of shares of
Common Stock then subject to this Warrant.
3. Exercise of this Warrant. This Warrant may be exercised from time to
time as to the total number of shares that may then be issuable upon the
exercise thereof or any portion thereof in the manner and subject to the
limitations provided for in Paragraph 1 hereof.
4. Assignment. This Warrant may be transferred or assigned in any
manner by the Holder.
5. Requirement of Law. In the event the shares issuable on exercise of
this Warrant are not registered under the Securities Act of 1933, Xxxxxxxxxxx
may imprint on the certificate for such shares the following legend or any other
legend which counsel for Xxxxxxxxxxx considers necessary or advisable to comply
with Securities Act of 1933:
The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be sold or
transferred except upon such registration or upon receipt by
the Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for such sale
or transfer.
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Securities Act of 1933. The Company
shall not be obligated to take any other affirmative action in order to cause
the exercise of this Warrant or the issuance of shares of Common Stock pursuant
thereto to comply with any law or regulation of any governmental authority.
6. Termination. This Warrant, to the extent it shall not previously
have been exercised, shall terminate as follows:
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(a) If the Holder ceases to serve on the Board of Directors prior to
the third anniversary of the Date of Grant, for any reason, with or without
cause, other than for death, retirement under the then-established rules of the
Board of Directors, or severance for disability, this Warrant shall terminate
and be immediately forfeited. If the Holder ceases to serve on the Board of
Directors for any reason, with or without cause, other than for death,
retirement under the then-established rules of the Board of Directors, or
severance for disability on or after the third anniversary of the Date of Grant,
this Warrant shall continue in effect until the date this Warrant is otherwise
due to expire in accordance with Paragraph 1 hereof.
(b) If the Holder dies prior to the third anniversary of the Date of
Grant, this Warrant shall be immediately exercisable and shall continue in
effect until ten years following the date of his death. If the Holder dies on or
after the third anniversary of the Date of Grant, this Warrant shall continue in
effect until the date this Warrant is otherwise due to expire in accordance with
Paragraph 1 hereof. After the death of the Holder, his executors, administrators
or any persons to whom this Warrant may be transferred by will or by the laws of
descent and distribution or otherwise assigned shall have the right, at any time
prior to this Warrant's expiration to exercise it.
(c) If the Holder retires in good standing from the Board of Directors
under the then-established rules of the Board of Directors prior to the third
anniversary of the Date of Grant, the Holder shall become entitled to exercise
that portion of this Warrant determined by multiplying the number of shares of
Common Stock subject to this Warrant by a fraction, the numerator of which is
his total whole years of service as a director of the Company since the Date of
Grant and the denominator of which is three. To the extent that this Warrant is
exercisable under the preceding sentence, this Warrant shall be exercisable
until ten years following the date of the Holder's retirement in accordance with
this Paragraph 6(c), and the remainder of this Warrant shall terminate
immediately. If the Holder retires in good standing from the Board of Directors
of the Company under the then-established rules of the Board of Directors on or
after the third anniversary of the Date of Grant, this Warrant shall continue
until the date this Warrant is otherwise due to expire in accordance with
Paragraph 1 hereof.
(d) If the Holder ceases to be a director of the Company due to
disability prior to the third anniversary of the Date of Grant, this Warrant
shall be immediately exercisable and shall continue in effect until ten years
following the date the Holder ceased to be a director of the Company due to a
disability. If the Holder ceases to be a director of the Company due to
disability on or after the third anniversary of the Date of Grant, this Warrant
shall continue in effect until the date this Warrant is otherwise due to expire
in accordance with Paragraph 1 hereof.
7. Amendment. This Warrant may not be changed, amended or modified
except by an agreement in writing signed on behalf of each of the parties
hereto.
8. No Rights as a Stockholder. The Holder shall not have any rights as
a stockholder with respect to any shares of Common Stock issuable upon the
exercise of this Warrant until the date of issuance of the stock certificate or
certificates representing such shares following the Holder's exercise of this
Warrant pursuant to its terms and conditions and payment for such shares. Except
as otherwise provided in this Warrant, no adjustment shall be made for dividends
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or other distributions made with respect to the Common Stock the record date for
the payment of which is prior to the date of issuance of the stock certificate
or certificates representing such shares following the Holder's exercise of this
Warrant.
9. Governing Law. The validity, construction and performance of this
Warrant shall be governed by the laws of the State of Delaware. Any invalidity
of any provision of this Warrant shall not affect the validity of any other
provision.
10. Notices. All notices, demands, requests or other communications
hereunder shall be in writing and shall be deemed to have been duly made or
given if mailed by registered or certified mail, return receipt requested. Any
such notice mailed to the Company shall be addressed to its principal executive
office at 000 Xxxx Xxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000, and any notice
mailed to the Holder shall be addressed to the Holder's residence address as it
appears on the books and records of the Company or to such other address as
either party may hereafter designate in writing to the other.
11. Retention Obligation. The granting of this Warrant shall not impose
upon the Company any obligation to continue to have the Holder serve on the
Board of Directors of the Company; and the right of the Board of Directors to
remove the Holder as a director of the Company shall not be diminished or
affected by reason of the grant of this Warrant to the Holder pursuant to this
Warrant.
12. Binding Effect. This Warrant shall, except as otherwise provided to
the contrary in this Warrant, inure to the benefit of and bind the successors
and assigns of the Company. This Warrant shall, except as otherwise provided to
the contrary in this Warrant, inure to the benefit of and bind the heirs,
executors, administrators, legal representatives and assigns of the Holder.
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IN WITNESS WHEREOF, this Warrant has been duly executed and delivered
as of the day and year first above mentioned.
XXXXXXXXXXX INTERNATIONAL, INC.
By:
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Xxxxxx X. Xxxx
Executive Vice President
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Xxxxxx X. Xxxxx, Xx.
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